Page Range | 83623-84387 | |
FR Document |
Page and Subject | |
---|---|
81 FR 83623 - Correction | |
81 FR 83870 - Final Programmatic Environmental Impact Statement for the 2017-2022 Outer Continental Shelf (OCS) Oil and Gas Leasing Program | |
81 FR 83883 - Notice of Closed Meeting; Sunshine Act | |
81 FR 83841 - Sunshine Act Meeting | |
81 FR 83855 - Submission for OMB Review; 30-Day Comment Request; Materials To Support NIH Serving as an IRB of Record or a Single IRB for Outside Institutions (Office of the Director) | |
81 FR 83862 - 60-Day Notice of Proposed Information Collection: Home Equity Conversion Mortgage (HECM) Insurance Application for the Origination of Reverse Mortgages and Related Documents | |
81 FR 83799 - President's Export Council Subcommittee on Export Administration; Notice of Open Meeting | |
81 FR 83672 - Indirect Food Additives: Paper and Paperboard Components | |
81 FR 83706 - Connect America Fund | |
81 FR 83824 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Student Assistance General Provisions-Subpart E-Verification Student Aid Application Information | |
81 FR 83798 - Foreign-Trade Zone 163-Ponce, Puerto Rico, Application for Subzone, Best Petroleum Corporation, Toa Baja, Puerto Rico | |
81 FR 83798 - Foreign-Trade Zone (FTZ) 38-Spartanburg County, South Carolina; Notification of Proposed Production Activity; ZF Transmissions Gray Court, LLC; (Automatic Transmission and Powertrain Subassemblies and Parts, Transmission Shafts and Cranks); Gray Court, South Carolina | |
81 FR 83799 - Foreign-Trade Zone 21-Charleston, South Carolina; Application for Subzone; Volvo Car US Operations, Inc.; Ridgeville, South Carolina | |
81 FR 83800 - Certain Steel Threaded Rod From the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2014-2015 | |
81 FR 83799 - Foreign-Trade Zone 115-Beaumont, Texas; Expansion of Subzone 115B; ExxonMobil Oil Corporation; Jefferson and Liberty Counties, Texas | |
81 FR 83845 - Proposed Information Collection Activity; Comment Request | |
81 FR 83830 - Combined Notice of Filings #2 | |
81 FR 83831 - Combined Notice of Filings #1 | |
81 FR 83928 - Notice of Availability of Programmatic Assessment of Greenhouse Gas Emissions From Transit Projects | |
81 FR 83804 - Calcium Hypochlorite From the People's Republic of China: Final Decision To Rescind the New Shipper Review of Haixing Jingmei Chemical Products Sales Co., Ltd. | |
81 FR 83704 - Spodoptera frugiperda | |
81 FR 83701 - Clarification of Requirements for Method 303 Certification Training | |
81 FR 83833 - Notice of Receipt of Requests To Voluntarily Cancel Certain Pesticide Registrations and Amend Registrations To Terminate Certain Uses | |
81 FR 83625 - Freedom of Information Act Regulations | |
81 FR 83811 - Supervisory Highlights: Fall 2016 | |
81 FR 83930 - Submission for OMB Review; Comment Request | |
81 FR 83929 - Submission for OMB Review; Comment Request | |
81 FR 83825 - Record of Decision for Issuing a Presidential Permit to Minnesota Power | |
81 FR 83853 - Solicitation of Written Comments on the Mid-Course Review Working Group Draft Report and Draft Recommendations for Consideration by the National Vaccine Advisory Committee | |
81 FR 83715 - Fisheries of the Northeastern United States; Atlantic Bluefish Fishery; Quota Transfer | |
81 FR 83883 - OMB No. 3206-0233, Civil Service Retirement System Survivor Annuitant Express Pay Application for Death Benefits, OPM Form RI 25-051 | |
81 FR 83801 - Uncovered Innerspring Units From the People's Republic of China: Initiation of Anticircumvention Inquiry on Antidumping Duty Order | |
81 FR 83806 - Request for Information Regarding Consumer Access to Financial Records | |
81 FR 83871 - Biweekly Notice: Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations | |
81 FR 83844 - Privacy Act of 1974: Revised Privacy Act System of Records; Withdrawal | |
81 FR 83836 - Proposal To Adopt the 2010 Small Business Jobs Act Interim Rule as an Alternative Size Standard for Defining a Small Business for Export-Import Bank Programs | |
81 FR 83842 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
81 FR 83841 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
81 FR 83831 - Combined Notice of Filings | |
81 FR 83832 - Combined Notice of Filings #1 | |
81 FR 83888 - Investor Advisory Committee Meeting | |
81 FR 83921 - South Carolina Disaster Number SC-00041 | |
81 FR 83921 - North Carolina Disaster Number NC-00081 | |
81 FR 83920 - South Carolina Disaster Number SC-00040 | |
81 FR 83845 - Proposed Data Collection Submitted for Public Comment and Recommendations-Zika Virus Associated Neurologic Illness Case Control Study; Correction | |
81 FR 83822 - TRICARE; Calendar Year 2017 TRICARE Young Adult Program Premium Update | |
81 FR 83921 - North Carolina Disaster Number NC-00086 | |
81 FR 83923 - Discretionary Funding Opportunity: Zero Emission Research Opportunity | |
81 FR 83822 - Notice of Availability of Government-Owned Inventions; Available for Licensing | |
81 FR 83822 - Notice of Intent To Grant Partially Exclusive Patent License; Cultural Quotient Corporation | |
81 FR 83825 - Agency Information Collection Activities; Comment Request; Annual Performance Reports for Title III, Title V, and Title VII Grantees | |
81 FR 83795 - Pipeline Safety: Meeting of the Gas Pipeline Safety Advisory Committee | |
81 FR 83864 - Proposed Habitat Conservation Plan and Draft Environmental Assessment for Streaked Horned Lark; Port of Portland Properties, Portland, Oregon | |
81 FR 83844 - Information Collection; Acquisition of Helium | |
81 FR 83715 - Pacific Island Pelagic Fisheries; 2016 Commonwealth of the Northern Mariana Islands Bigeye Tuna Fishery; Closure | |
81 FR 83862 - Receipt of an Incidental Take Permit Application To Participate in the Amended American Burying Beetle Oil and Gas Industry Conservation Plan in Oklahoma | |
81 FR 83716 - Fisheries of the Exclusive Economic Zone Off Alaska; Inseason Adjustment to the 2016 Gulf of Alaska Pollock Seasonal Apportionments | |
81 FR 83863 - Endangered Species; Recovery Permit Applications | |
81 FR 83870 - Notice of Availability of a Draft Environmental Assessment for Alamito and Terneros Sediment and Vegetation Removal Below Presidio Flood Control Project, Presidio, Texas | |
81 FR 83867 - Notice of Application for Withdrawal and Notification of Public Meeting; Montana | |
81 FR 83845 - Determination of Regulatory Review Period for Purposes of Patent Extension; ANAVIP | |
81 FR 83847 - E11(R1) Addendum: Clinical Investigation of Medicinal Products in the Pediatric Population; International Council for Harmonisation; Draft Guidance for Industry; Availability | |
81 FR 83849 - Determination of Regulatory Review Period for Purposes of Patent Extension; CORE VALVE SYSTEM | |
81 FR 83850 - Determination of Regulatory Review Period for Purposes of Patent Extension; RUCONEST | |
81 FR 83852 - Determination of Regulatory Review Period for Purposes of Patent Extension; CERDELGA | |
81 FR 83922 - 30-Day Notice of Proposed Information Collection: Self Certification and Ability To Perform in Emergencies (ESCAPE) Program | |
81 FR 83859 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
81 FR 83858 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meeting | |
81 FR 83854 - National Cancer Institute; Notice of Charter Renewal | |
81 FR 83892 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Limit Order Protection for Members Accessing the Nasdaq Market Center | |
81 FR 83902 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Limit Order Protection | |
81 FR 83888 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Proposed Rule Change, as Modified by Amendment No. 1 Thereto, Introducing NYSE OptX | |
81 FR 83890 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change, as Modified by Amendment No. 1 Thereto, Introducing NYSE OptX | |
81 FR 83917 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Limit Order Protection | |
81 FR 83906 - Self-Regulatory Organizations; ICE Clear Credit LLC; Notice of Filing of Proposed Rule Change to Amend the ICE Clear Credit Clearing Rules | |
81 FR 83884 - Self-Regulatory Organizations; ISE Mercury, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Make Non-Controversial and Technical Changes to Exchange Rules | |
81 FR 83886 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Order Granting Approval of Proposed Rule Change To Delete Outdated or Unnecessary Rule Language in Phlx Rule 1020 | |
81 FR 83899 - Legg Mason ETF Equity Trust, et al.; Notice of Application | |
81 FR 83915 - Submission for OMB Review; Comment Request | |
81 FR 83916 - Proposed Collection; Comment Request | |
81 FR 83901 - Submission for OMB Review; Comment Request | |
81 FR 83896 - Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Exchange Rule 605 Market Maker Orders | |
81 FR 83777 - Medicaid Program; The Use of New or Increased Pass-Through Payments in Medicaid Managed Care Delivery Systems | |
81 FR 83823 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; ED School Climate Surveys (EDSCLS) National Benchmark Study 2017 Partial Cancellation Change Request | |
81 FR 83805 - Marine Mammals; File No. 18016 | |
81 FR 83929 - Mutual Savings Association Advisory Committee | |
81 FR 83883 - Product Change-Priority Mail Express, Priority Mail, & First-Class Package Service Negotiated Service Agreement | |
81 FR 83714 - Lease and Interchange of Vehicles by Mexico-Domiciled Motor Carriers | |
81 FR 83868 - Information Collection Request Sent to the Office of Management and Budget (OMB) for Approval; Natural Sounds/Quiet Valuation Survey: Focus Group Pre-Test | |
81 FR 83737 - Special Conditions: Cranfield Aerospace Limited, Cessna Aircraft Company Model 525; Tamarack Load Alleviation System and Cranfield Winglets-Interaction of Systems and Structures | |
81 FR 83922 - Post-Accident Reporting (PAR) Advisory Committee Meeting: Public Meeting | |
81 FR 83923 - Hours of Service of Drivers: American Trucking Associations, Inc. (ATA) Exemption; FAST Act Extension of Compliance Date | |
81 FR 83842 - Grace Hopper Day Hackathon | |
81 FR 83821 - Submission for OMB Review; Public Disclosure of Greenhouse Gas Emissions and Reduction Goals-Representations | |
81 FR 83840 - Information Collection Being Reviewed by the Federal Communications Commission | |
81 FR 83839 - Information Collection Being Submitted for Review and Approval to the Office of Management and Budget | |
81 FR 83856 - Proposed Collection; 60-Day Comment Request; Cancer Trials Support Unit (National Cancer Institute) | |
81 FR 83771 - Approval and Promulgation of Implementation Plans; Louisiana; Revisions to the New Source Review State Implementation Plan; Air Permit Procedure Revisions | |
81 FR 83841 - Information Collection Being Submitted for Review and Approval to the Office of Management and Budget | |
81 FR 83838 - Open Commission Meeting, Thursday, November 17, 2016 | |
81 FR 83857 - National Institute on Deafness and Other Communication Disorders; Notice of Meeting | |
81 FR 83855 - National Heart, Lung, and Blood Institute; Notice of Closed Meetings | |
81 FR 83858 - National Heart, Lung, and Blood Institute; Notice of Closed Meetings | |
81 FR 83858 - Center for Scientific Review; Notice of Closed Meetings | |
81 FR 83823 - President's Advisory Commission on Educational Excellence for Hispanics | |
81 FR 83871 - Chlorinated Isocyanurates From China and Spain | |
81 FR 83786 - Adding the Polar Ship Certificate to the List of SOLAS Certificates and Certificates Issued by Recognized Classification Societies | |
81 FR 83797 - Dairyland Power Cooperative: Notice of Intent To Prepare an Environmental Impact Statement and Hold Additional Public Scoping Meetings | |
81 FR 83744 - Rotorcraft Pilot Compartment View; Extension of Comment Period | |
81 FR 83643 - Revision of the FDIC's Freedom of Information Act Regulations | |
81 FR 83655 - Airworthiness Directives; BRP-Powertrain GmbH & Co KG Reciprocating Engines | |
81 FR 83882 - Proposed Submission of Information Collections for OMB Review; Comment Request; Payment of Premiums; Termination Premium | |
81 FR 83750 - Proposed Establishment of Class E Airspace; Kill Devil Hills, NC | |
81 FR 83749 - Proposed Establishment of Class E Airspace, Manti, UT | |
81 FR 83668 - Amendment of Class D and Class E Airspace; Savannah, GA | |
81 FR 83776 - Notice of Opportunity to Comment on Proposed Denial of Petitions for Rulemaking To Change the RFS Point of Obligation | |
81 FR 83660 - Airworthiness Directives; Various Restricted Category Helicopters | |
81 FR 83669 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments | |
81 FR 83670 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments | |
81 FR 83752 - Wine Treating Materials and Related Regulations | |
81 FR 83718 - Office of Women's Business Ownership: Women's Business Center Program | |
81 FR 83674 - Native American Housing Assistance and Self-Determination Act; Revisions to the Indian Housing Block Grant Program Formula | |
81 FR 83657 - Airworthiness Directives; The Boeing Company Airplanes | |
81 FR 83653 - Airworthiness Directives; Bombardier, Inc. Airplanes | |
81 FR 83665 - Airworthiness Directives; The Boeing Company Airplanes | |
81 FR 83745 - Airworthiness Directives; The Boeing Company Airplanes | |
81 FR 83648 - Airworthiness Directives; Airbus Airplanes | |
81 FR 83662 - Airworthiness Directives; Gulfstream Aerospace Corporation Airplanes | |
81 FR 83687 - Administrative Claims | |
81 FR 83934 - Prepaid Accounts Under the Electronic Fund Transfer Act (Regulation E) and the Truth In Lending Act (Regulation Z) |
Rural Utilities Service
Foreign-Trade Zones Board
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Air Force Department
Navy Department
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
Federal Emergency Management Agency
U.S. Customs and Border Protection
Fish and Wildlife Service
Land Management Bureau
National Park Service
Ocean Energy Management Bureau
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Transit Administration
Pipeline and Hazardous Materials Safety Administration
Alcohol and Tobacco Tax and Trade Bureau
Comptroller of the Currency
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Office of the Secretary, U.S. Customs and Border Protection, and Federal Emergency Management Agency, Department of Homeland Security.
Final rule.
This rule amends the Department's regulations under the Freedom of Information Act (FOIA). The regulations have been revised to update and streamline the language of several procedural provisions, and to incorporate changes brought about by the amendments to the FOIA under the OPEN Government Act of 2007. Additionally, the regulations have been updated to reflect developments in the case law.
This rule is effective December 22, 2016.
James V.M.L. Holzer, Deputy Chief FOIA Officer, DHS Privacy Office, (202) 343-1743.
The Secretary of Homeland Security has authority under 5 U.S.C. 301, 552, and 552a, and 6 U.S.C. 112(e), to issue FOIA and Privacy Act regulations. On January 27, 2003, the Department of Homeland Security (Department or DHS) published an interim rule in the
In 2005, Executive Order 13392 called for the designation of a Chief FOIA Officer and FOIA Public Liaisons, along with the establishment of FOIA Requester Service Centers as appropriate. Subsequently, the Openness Promotes Effectiveness in our National Government Act of 2007 (OPEN Government Act), Public Law 110-175, required agencies to designate a Chief FOIA Officer who is then to designate one or more FOIA Public Liaisons (5 U.S.C. 552(j) and 552(k)(6)). Sections 6, 7, 9, and 10 of the OPEN Government Act amended provisions of the FOIA by setting time limits for agencies to act on misdirected requests and limiting the tolling of response times (5 U.S.C. 552(a)(6)(A)); requiring tracking numbers for requests that will take more than 10 days to process (5 U.S.C. 552(a)(7)(A)); providing requesters a telephone line or Internet service to obtain information about the status of their requests, including an estimated date of completion (5 U.S.C. 552(a)(7)(B)); expanding the definition of “record” to include records “maintained for an agency by an entity under Government contract, for the purposes of records management” (5 U.S.C. 552(f)(2)); and introducing alternative dispute resolution to the FOIA process through FOIA Public Liaisons (5 U.S.C. 552(a)(6)(B)(ii) & (l)) and the Office of Government Information Services (5 U.S.C. 552(h)(3)).
On July 29, 2015, the Department of Homeland Security published a proposed rule to amend existing regulations under the FOIA.
In compliance with the FOIA Improvement Act of 2016, DHS has made the following changes to the proposed rule text:
DHS has revised proposed CFR 5.8(a)(1), “Requirements for filing an appeal,” to change the current appeals period from 60 days to 90 days as required by section 2(1)(C) of the Act. DHS has also provided further clarification regarding the timely receipt of electronic submissions.
DHS has added 6 CFR 5.11(d)(3) to incorporate the portion of the Act that restricts an agency's ability to charge certain fees. Specifically, section 2(1)(B) of the Act provides that an agency may continue to charge fees as usual for an untimely response only if: A court has determined that exceptional circumstances exist, or (1) the requester has been timely advised of unusual circumstances, (2) more than 5000 pages are necessary to respond to the request, and (3) the component has contacted the requester (or made at least three good-faith attempts) about ways to narrow or revise the scope of the request. DHS has incorporated this requirement into this final rule without change.
DHS has removed a reference in proposed 6 CFR 5.1(a)(2) that referenced the agency's nonbinding policy to disclose exempt information when the agency reasonably foresees that disclosure would not harm an interest protected by an exemption. Because section 2(1)(D) of the Act codifies a substantially similar standard in law,
DHS has revised proposed 6 CFR 5.2 to conform to section 2(1)(A)(i) of the Act, which strikes a reference to public records that must be made available “for public inspection and copying,” and inserts in its place a reference to public records that must be made available “for public inspection
Finally, DHS has also revised proposed 6 CFR 5.5(c), 5.6(c), and 5.6(e) to conform to requirements in section 2(1)(C) of the Act, which require the agency to notify requesters of the availability of the Office of Government Information Services (OGIS) and the agency's FOIA Public Liaison to provide dispute resolution services.
In total, DHS received fifteen public submissions to its proposed rule, including one submission from another agency. DHS has given due consideration to each of the comments received and has made several modifications to the rule, as discussed in greater detail below. Below, DHS summarizes and responds to the significant comments received.
DHS proposed to revise 6 CFR 5.1 and 5.2 to, among other things, eliminate redundant text and incorporate reference to additional DHS policies and procedures relevant to the FOIA process. Two commenters suggested that the Department retain text in original 6 CFR 5.1(a)(1), which provides that information routinely provided to the public as part of a regular Department activity (for example, press releases) may be provided to the public without following the DHS FOIA regulations. The commenters stated that they opposed DHS's proposed removal of that language because not all DHS FOIA officers and FOIA personnel understand that such information is to be provided routinely. The commenters also stated that retaining the language would promote greater consistency in FOIA review. The Department has considered this suggestion and has determined that the revised language at 6 CFR 5.2 on proactive disclosure of department records adequately replaces the language in original 6 CFR 5.1(a)(1). The revised language provides for posting of records required to be made available to the public, as well as additional records of interest to the public that are appropriate for public disclosure (such as press releases). The Department has made considerable efforts across the components to ensure that records appropriate for public disclosure are proactively posted in agency reading rooms.
One commenter suggested that proposed 6 CFR 5.1(a)(1) be amended to reflect that the 1987 OMB guidelines referenced in the paragraph would only apply to the extent they are consistent with subsequent statutory changes. As is the case with any statutory change, if the law changes and the regulation or guidance is no longer consistent with the law, then DHS will comply with the law: In this case, changes in the statute would override the OMB guidelines. DHS declines to make this change, because it is self-evident that DHS only complies with OMB guidelines to the extent they are consistent with the governing statute.
Finally, upon further consideration of the proposed rule text, DHS has made a number of clarifying edits to proposed 6 CFR 5.1(a)(1). Because this content is adequately covered in 6 CFR 5.10, DHS has removed much of the discussion of this topic in 6 CFR 5.1(a)(1).
One commenter suggested that DHS retain the current 6 CFR 5.3(a), which requires requests for information about third-party individuals be accompanied by signed authorizations from the subject of the information. The commenter argued that removing the requirement for signed authorizations could harm individual privacy. However, the subject language in proposed 6 CFR 5.3(a)(4) brings the DHS regulation more into line with the language used by many other government agencies, including the Department of Justice, which provides interagency leadership on FOIA matters.
The same commenter suggested that a caveat be included allowing access to the records of public officials without signed authorization because this would facilitate access to information about government officials. As noted above, DHS considers every request seeking access to third party information under a balancing test that evaluates the privacy of the individual subject of the records against the public interest in disclosing such information. Depending on the information sought, some of the records of government officials may be available without the need for a signed authorization. However, all records of all government officials will not meet the requirements of the balancing test. Therefore, DHS declines to create a blanket policy to waive the personal privacy interests of government officials in their records.
As proposed, 6 CFR 5.3(c) would allow DHS to administratively close a request that does not adequately describe the records, if the requester does not respond within 30 days to DHS's request for additional information. One commenter requested that DHS clarify how DHS may make such a request (
Proposed 6 CFR 5.3(c) provided for administrative closure if the requester fails to provide an adequate description of the records sought within 30 days of DHS's request for such a description. A commenter suggested amending this section to provide that an inadequately described request may lose priority in the processing queue until the requester provides an adequate description, but will not be administratively closed. For purposes of placement in the processing queue, an unperfected request (
One commenter suggested amending proposed 6 CFR 5.3 to provide that if a requester fails to respond to a request for clarification within 30 days, the agency or component should make an effort to contact the requester using more than one means of communication, before administratively closing the request. The commenter stated that if the requester ultimately responds after the 30-day deadline, DHS should not place the clarified requested at the end of the processing line, but should reopen the request and place it back in the processing queue as though the request had been was perfected on the date when the original request was filed. The commenter stated that this outcome would be consistent with DOJ guidance on “still interested” letters. DHS declines to commit to always seeking further clarification following the 30-day deadline. This would be inconsistent with the purpose of the 30-day deadline. And for the reasons described earlier in this preamble, DHS also declines to deem responses perfected retrospectively. DHS notes that DOJ's guidance on “still interested” letters is unrelated to agency requests for clarification.
A commenter suggested that DHS commit to always seek additional information from a requester before administratively closing the request. The commenter stated that this would ensure that FOIA officials do not simply close a request without explanation. DHS recognizes that requesters may have difficulty formulating proper FOIA requests and as such, has provided information and resources to aid requesters in drafting proper FOIA requests. Resources permitting, DHS will attempt to seek additional clarification rather than administratively close requests, but out of fairness to other requesters, in the interest of efficiency, and consistent with its historical practice and the practice of other agencies, DHS will not impose an affirmative requirement to seek additional information or clarification in every instance. DHS has clarified 6 CFR 5.3(c) to this end. DHS notes that it does not administratively close requests without any explanation.
Another commenter proposed to extend the deadline for clarification to 30 business days rather than 30 calendar days. The commenter stated that a 30-business-day deadline would “conform to the Department of Justice's recommended deadline with respect to `still-interested' letters.” DHS agrees with the commenter that 30 working days is more appropriate. DHS has therefore extended the clarification period from 30 calendar days to 30 working days. This has the additional benefit of being consistent with the separate 30-working-day deadline in DOJ's recommended guidelines on still-interested letters.
One commenter suggested amending proposed 6 CFR 5.3(c) to allow for 60 days, rather than 30 days, after a request for clarification and before administrative closure. The commenter stated that the change was necessary because of “inevitable delays in processing outgoing communications from federal agencies.” The commenter stated that many journalists are often on assignment without access to physical mail or email for days and weeks at a time, and that “a 30-day window could unfairly jeopardize the processing of their FOIA requests in the event that a DHS component requests a clarification, requiring them to unnecessarily re-submit requests, and delaying their access to requested records. Extending the response time to 60 days does not impose any additional burden on DHS components, but would assist requesters.” While DHS recognizes that certain requesters may have some difficulty responding to a request for clarification within a specified time period, in the interest of not creating additional administrative burdens, DHS has determined that the 30-working-day time period established by this rule strikes the appropriate balance. DHS notes that an administrative closure of an unperfected request does not prevent the requester from resubmitting the request at a future date, and that since an unperfected request is by definition not placed in the processing queue, there is no negative impact on a requester with respect to losing their place in the queue if a requester needs to submit a revised request.
A commenter suggested that DHS limit the use of administrative closure to those circumstances described in proposed section 5.3(c), and not administratively close requests based on any other grounds. The commenter specifically stated that DHS sometimes administratively closes cases based on a requester's failure to respond to a “still interested” letter, and that the use of still-interested letters “place[s] a significant an unwarranted burden on FOIA requesters that runs counter to FOIA.” The commenter also stated that the proposed rule did not include provision for administratively closing a FOIA request based on the requester's failure to respond to a “still interested” letter, and suggested that DHS should not introduce new regulatory text on “still-interested” letters in the final rule, because the proposal did not afford commenters a sufficient opportunity to comment on this topic. DHS disagrees that it lacks authority to administratively close requests on grounds that are not referenced in its FOIA regulations. For example, although DHS regulations do not provide for the administrative closure of a request at the requester's election, DHS may administratively close such a request. This example is very similar to the use of “still interested” letters, described earlier in this preamble.
One commenter suggested that the text of proposed 6 CFR 5.3 be amended to state that when a request is clear on its face that it is being made by an attorney on behalf of a client, no further proof of the attorney-client relationship would be required. The commenter stated that DHS inconsistently requires attorneys for requesters provide documentation of the attorney-client relationship in the form of (1) a signed DHS Form G-28, (2) a signed statement on the letterhead of the entity for which the FOIA request is being made, or (3) a signed statement from the actual requester. The commenter stated that such documentation should not be required where the FOIA request clearly states that it is being made by an attorney on behalf of a client. DHS is unable to make this modification. DHS analyzes third-party requests for records under both the Privacy Act and the FOIA. As part of this process, DHS determines if the records are being sought with the consent of the subject of the records. Without proper documentation, DHS is unable to assess whether a third party, be it an attorney or other representative of the subject of the records, is properly authorized to
One commenter suggested amending proposed 6 CFR 5.4(d), which pertains to interagency consultations, to clarify the extent to which consultations may also be required with the White House. The commenter stated that “[t]o promote transparency,” the final rule should “address [DHS's] FOIA-related consultations with the Office of White House Counsel.” Consultations occur on a case-by-case basis and depend on the specific information that may be revealed in a request. Depending on the specific request at issue, DHS and its components consult with entities throughout state, local, and federal government, including the White House. An attempt to catalogue every possible consultation would be impracticable, and would be inconsistent with the overall goal of streamlining the regulations. DHS therefore declines to make this suggested change.
One commenter stated that DHS should always notify the requester of referrals because DHS had not substantiated its claim that merely naming the agency to which a FOIA request had been referred could “harm an interest protected by an applicable exemption.” The commenter also stated that proposed 6 CFR 5.4(f) mistakenly referenced referral of records, rather than requests. The commenter stated that “referrals do not entail referrals of records, but instead implicate requests.” DHS and its components make every effort to notify requesters when records are referred to other components. A referral differs from a consultation in several ways, but most significantly to the requester, when records are referred to another agency, the receiving agency is the entity that will ordinarily respond directly to the requester unless such a response might compromise a law enforcement or intelligence interest. DHS and its components have a very broad mission space that includes law enforcement and intelligence functions. As such, there may be times when DHS is unable to disclose the referral of records from one component to another or from a DHS component to another agency due to law enforcement and/or intelligence concerns. As such, DHS declines to make this a mandatory requirement.
Five commenters suggested amendments to the proposed language of 6 CFR 5.5(e)(3) and 5.11(b)(6) to make the definition of news media less restrictive. Commenters felt that it would be difficult or cumbersome for certain requesters to establish that news dissemination was their “primary professional activity.” In response, DHS has eliminated the requirement in proposed 5.5(e)(3) that a requester seeking expedited processing establish that he or she engages in information dissemination as his or her primary professional activity. DHS has also removed the “organized and operated” restriction. These changes are consistent with existing case law.
One commenter also proposed that DHS eliminate the requirement in proposed 6 CFR 5.11(b)(6) that news be broadcast to the “public at large” and that periodicals qualify for news media status only if their products are available to the general public. The commenter suggested that the proposed rule should make clear that no particular audience size was required. The reference to the “public at large” and the “general public” are merely exemplary and do not act as hard-and-fast restrictions. The standard identified in the final rule, as revised in response to public comments, allows DHS to classify a requester as a member of the news media on a case-by-case basis without a rigid requirement of audience size.
One commenter proposed that DHS eliminate the availability of expedited processing for the news media. As the FOIA statute clearly contemplates expedited processing for news media, DHS is unable to eliminate this provision.
Two commenters requested that the language of proposed 6 CFR 5.6 be amended to include a statement that there is a “presumption in favor of disclosure.” The first commenter sought inclusion of the language based upon memoranda issued by the President Obama and Attorney General, respectively.
One commenter suggested that the regulations specify greater use of electronic means of communication by DHS components to allow the electronic filing of FOIA requests to avoid the delay and uncertainty occasioned by first-class mail. The Department already encourages the electronic filing of FOIA requests and the service is available for all components through the DHS FOIA portal at
One commenter proposed changing the language of 6 CFR 5.6(b) to state that DHS will assign a request a tracking number if processing the request would take longer than ten calendar days, rather than ten working days as the proposed rule provided. The commenter stated that the FOIA statute specified “calendar” days rather than working
One commenter suggested that the initial acknowledgment letter contain information on how to file an administrative appeal because if DHS fails to provide a timely response to the FOIA request, a requester is entitled to file an administrative appeal or seek judicial review. The commenter stated that in cases of constructive denial, the requester would not be informed how to administratively appeal the constructive denial. DHS declines to add the appeals language to the initial acknowledgment letter. While DHS acknowledges that in situations of constructive denial, a requester may seek to file an administrative appeal, at the time the initial letter is sent, there is no adverse determination from which to appeal, which may serve to confuse members of the public. In addition. DHS provides information on how to file an appeal on its Web site (
One commenter suggested that proposed 6 CFR 5.6(d) be amended to exclude language that characterizes as an “adverse determination” the agency's determination that a “request does not reasonably describe the records sought.” The commenter stated that the language would allow DHS components to deny FOIA requests based on inadequate descriptions of records sought, rather than seeking more information from requesters. As provided in proposed 6 CFR 5.3, DHS components try to obtain clarification from requesters by use of “needs more information” letters and contacting requesters via telephone or electronic mail to seek additional information. In many, but not all, circumstances the additional information is sufficient to allow DHS to process the request. However, if DHS ultimately administratively closes a request, DHS treats such a closure as an adverse determination from which the requester can seek administrative appeal.
One commenter suggested that proposed 6 CFR 5.6(g) be amended to specifically prohibit DHS from making a “false” response to a request when DHS determines that the request falls within 5 U.S.C. 552(c). Section 5.6(g) was intended to provide notice that records determined to be properly subject to an exclusion are not considered to be responsive to the FOIA request because excluded records, by law, “are not subject to the requirements of [the FOIA].” 5 U.S.C. 552(c). By definition, when DHS determines that an exclusion under 552(c) applies, any documents would no longer be subject to FOIA and DHS's statement to a requester of such fact could not be considered “false”. While the commenter would prefer that the agency make a “Glomar” response, that is, refuse to confirm or deny the existence of responsive records, the FOIA statutory scheme clearly allows agencies to utilize an exclusion when the situation is appropriate. And as proposed 6 CFR 5.6(g) and 5 U.S.C. 552(c) make clear, once an agency lawfully applies an exclusion, the excluded records are not responsive to the request. Accordingly, DHS is maintaining the language as proposed.
One commenter suggested that proposed 6 CFR 5.7 be amended to require “a more detailed notification” to the requester when the agency denies a FOIA request on the basis of FOIA exemption 4. FOIA exemption 4 protects trade secrets and commercial or financial information obtained from a person that is privileged or confidential. The commenter stated that requiring more detail would “ensure that the requester can properly obtain judicial review.” DHS already strives to provide as much information as possible to a requester when a request for information is denied. DHS must weigh the requester's need for information against the interests of the submitter of the information; particularly where the information is being withheld as confidential commercial information, it may be impossible for DHS to provide additional information without revealing information that DHS would be required to protect under FOIA Exemption 4. As such, DHS declines to make this suggested change.
Another commenter suggested that DHS revise proposed 6 CFR 5.7(e) and (g) to specify the minimum number of days that will be afforded to submitters to provide comments and file reverse-FOIA lawsuits. The commenter stated that establishing such a standard would prevent the agency from inconsistently interpreting the requirement to provide a “reasonable” period of time. DHS agrees that it is appropriate to set a minimum number of days. Accordingly, this final rule specifies that submitters will have a minimum of 10 working days to provide comments. DHS may provide a longer time period, at its discretion. Further, submitters will be given a minimum of 10 working days' notice if information is to be disclosed over their objection. The same commenter also sought clarification of whether “submitter” as used in proposed 6 CFR 5.7 was the same as “business submitter” as used in proposed 6 CFR 5.12(a). Section 5.12 applies only to CBP operations and should be read independently from 6 CFR 5.7.
As noted above, based upon requirements in the FOIA Improvement Act of 2016, DHS has changed the appeals period from 60 working days to 90 working days.
One commenter suggested that proposed 6 CFR 5.8(a)(1) be amended to state that appeals will be considered timely if
An agency commenter suggested that proposed 6 CFR 5.8(c) be amended to clarify that DHS and its components will participate in mediation with the
One commenter suggested that proposed 6 CFR 5.8(d) be amended to clarify that the time period for response to an appeal may not be extended for greater than 10 days. DHS considers this amendment to be unnecessary as the statute clearly does not provide for extensions beyond a single 10-day period.
One commenter suggested amending proposed 6 CFR 5.8(e) to clarify that judicial review is available without pursuing administrative appeal where a request has been constructively denied through agency inaction. DHS has determined that this proposed change is unnecessary as the FOIA statute itself provides judicial review of constructive denial without the necessity of administrative exhaustion.
No comments requiring agency response were received regarding proposed 6 CFR 5.9 or 5.10.
Several public submissions contained comments regarding the Department's assessment of fees. As a general matter, the Department notes that the fee provisions are written to conform to the OMB Guidelines, which establish uniform standards for fee matters. Conformity with the OMB Guidelines is required by the FOIA.
DHS has revised the “Definitions” section of proposed 6 CFR 5.11(b) by inserting the word “primarily” before “commercial interest” to more accurately conform to the statutory language of the FOIA. Consistent with other provisions of the proposed rule, the change clarifies that fee waivers are available to requesters even if they have a commercial interest as long as the requester can show a public interest in the information and that the primary interest in the information is not commercial.
One commenter suggested that DHS retain the definition of “commercial use request” in current 6 CFR 5.11(b)(1) instead of the proposed revisions because the commenter felt that the proposed regulation significantly broadened DHS's discretion in determining whether a request is commercial in nature. The DHS definition of “commercial use request” conforms to the definition promulgated by DOJ in its FOIA regulations. DHS has not changed the definition of a commercial request and continues to rely on the same definition in the current interim regulations at 6 CFR 5.11 that “a commercial use request is a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which include furthering those interests through litigation.”
The same commenter opposed the removal of the requirement that “the component shall provide a reasonable opportunity to submit further clarification.” The proposed changes do not require DHS to seek further clarification from a requester, but rather allow each component to make a case-by-case determination, which may, in the agency's discretion, include seeking further information from the requester regarding the purpose for the request. This change comports with the DHS proposed regulation at 6 CFR 5.3(c), which gives the agency discretion to determine which requests will be the subject of requests for clarification in the event the request is insufficient. Requiring DHS to seek further information would increase the administrative burden on the agency and prejudice other requesters. The final rule text reflects the need to allow components to assess the intended purpose of each request on a case-by-case basis. As such, DHS declines to make any changes to this language.
One commenter suggested that DHS retain the broader definition of “educational institution” in current 6 CFR 5.11(b)(4) because the proposed definition of educational institution would exclude students enrolled in educational institutions that make FOIA requests in furtherance of their own research. DHS agrees and has changed the proposed definition of educational institutions to include students seeking FOIA requests to further their own scholarly research by eliminating the example which had excluded such requesters from categorization as educational institutions. The revisions are also consistent with
Several commenters sought revision of the definition in proposed 6 CFR 5.11(b)(6) of “news media.” This issue is discussed earlier in this preamble, under the section for comments on proposed 6 CFR 5.5.
One commenter suggested amending proposed 6 CFR 5.11(e) to clarify that a non-commercial requester that does not pay fees or declines to pay an estimated fee would still be eligible for two hours of search time without charge. The commenter sought the change because they stated that there was disagreement between agencies about whether or not such requesters would be entitled to the two free hours of search times under such circumstances. DHS has added language to section 5.11(e)(1) to make this more clear; the fee table at proposed 6 CFR 5.11(k)(6) also contains this information.
One commenter suggested that DHS eliminate proposed 6 CFR 5.11(k)(5), concerning the closure of requests where the required advance fee payment has not been received within 30 days. The commenter stated that the requirement of advance payment posed an additional financial barrier to accessing information, particularly in light of DHS's proposed redefinition of educational institutions to exclude students making FOIA requests in furtherance of their own educational coursework. As noted above, DHS has already addressed the concern about students being excluded from the definition of educational request. Regarding the remainder of the commenter's suggestion that DHS eliminate the closure of requests for which the required advance fee payment has not been timely received, DHS declines to make this change. While DHS recognizes that this requirement may impose a burden on some requesters, DHS has a strong interest in maintaining the integrity of the administrative process. As numerous court decisions have noted, government agencies are not required to process requests for free for those requesters that do not qualify for a fee waiver regardless of the requester's ability to pay the estimated fee. Further, the FOIA statute itself allows agencies to collect advance payment of fees when the requester has previously failed to pay fees in a timely fashion, or the agency has determined that the fee will exceed $250. 5 U.S.C. 552(a)(4)(A)(v).
One commenter stated that the second sentence of proposed 6 CFR 5.12(a) was redundant in that it provided that “commercial information that CBP [U.S. Customs and Border Protection] determines is privileged or confidential . . . will be treated as privileged or confidential.” DHS has determined that this language is not redundant because
One commenter stated that he had previously submitted FOIA requests to DHS on behalf of his small business, and that DHS had extended the estimated delivery date of its responses without providing notice or a reason, and that his requests had been sent to the wrong offices and subsequently terminated because found to be duplicative. The commenter asserted, without further elaboration, that delays in FOIA processing imposed direct costs on a small business he represented. The commenter also stated that DHS has a large backlog of FOIA requests. The commenter requested that DHS provide additional economic and small entity analysis related to the costs of FOIA processing delays and the proposed rule, and that “once these have been completed . . . DHS reopen the comment period for at least 60 days for public comment.” The commenter stated that “[i]t is inconceivable that the current backlog has not imposed costs on small and large businesses under this proposal.” The commenter requested DHS develop an estimate of the quantifiable costs and benefits of the rule and also complete a Regulatory Flexibility Act analysis of the impacts of the rule on small entities. The commenter also submitted two related comments regarding specific interactions he had in submitting FOIA requests to two DHS components, the Transportation Security Administration (TSA), and CBP. Those two comments included a list of eight questions related to the TSA request and 11 questions related to the CBP request, which the commenter requested be addressed in an economic analysis.
Much of the commenter's submission is well outside the scope of the proposed rule, which was intended primarily to update and streamline regulatory text to reflect intervening statutory and other changes. For example, the commenter raised specific issues with previous FOIA requests to DHS components (whether a specific FOIA request was closed properly and changes in a delivery date with another FOIA request). The delay costs associated with past DHS processing of a past FOIA request or the impacts of the current backlog are by definition not due to any changes made in this rule and therefore are not direct costs of this rule. Issues regarding specific pending or historical FOIA requests are more properly addressed to the component's FOIA office and not as comments to the FOIA proposed rule. Regarding the commenter's request for an assessment of the quantified costs and benefits of the rule and a Regulatory Flexibility Act analysis, DHS did consider the costs, benefits and impacts of the proposed rule on small entities. The proposed rule's Executive Orders 12866 and 13563 analysis and Regulatory Flexibility Act both reflect DHS's consideration of the economic impacts of the proposed rule, as well as DHS's conclusion that the proposed rule would not impose additional costs on the public or the government. DHS affirmatively stated that (1) the proposed rule would not collect additional fees compared to current practice or otherwise introduce new regulatory mandates, (2) the benefits of the rule included additional clarity for the public, and (3) regarding the impacts on small entities, the proposed rule did not impose additional direct costs on small entities. See 80 FR 45104 for this discussion of costs, benefits, and small entity impacts. DHS notes the commenter did not identify any specific provisions of the proposed rule that he believed would lead to delays in FOIA processing or otherwise increase costs as compared to FOIA current procedures, or suggest any alternatives to the proposed rule that would result in increased efficiencies. The proposed rule did not invite an open-ended search for any and all potential changes to DHS FOIA regulations that might potentially result in processing improvements; the rule's economic analysis reflects full consideration of the limited changes included in the proposed rule.
One commenter suggested that the regulation be amended to allow individuals protected by the confidentiality provisions in the Violence Against Women Act (VAWA) as amended, 42 U.S.C. 13701 and 8 U.S.C. 1367, to submit FOIA requests for their own information without that information subsequently being made public. DHS agrees with the commenter that this sensitive information should not be made public. But DHS believes the commenter's concerns are misplaced, because DHS does not apply the “release to one, release to all” policies of FOIA to first-party requests for personal information. DHS will not release to the public information covered by the aforementioned authorities subsequent to a first-party request for that his or her own information.
One commenter suggested that proactive disclosure include automatic disclosure of alien files to individuals in removal proceedings. The Department has determined that automatic disclosure of alien files to all individuals in removal proceedings falls well outside of the scope of the proposed rule and FOIA generally, and therefore will not be addressed here.
Finally, one commenter sought inclusion of a proposed section 5.14, which would require DHS to review records to determine if the release of information contained in records would be in the public interest “because it is likely to contribute significantly to public understanding of the operations or activities of the DHS.” As provided in proposed 6 CFR 5.2, DHS already proactively posts certain Department records it determines are of interest to the public. In addition, DHS generally follows the rule that records are publicly posted after the Department has received three requests for such records. DHS also recently participated in a DOJ pilot program which sought to examine the feasibility of posting all requested records as long as no privacy interests were implicated. Proactive review and posting of records, whether they are the subject of FOIA requests or not, is a time and resource intensive undertaking. DHS will continue to examine the feasibility of expanding the public posting of records, but due to practical and operational concerns, cannot divert resources away from the processing of FOIA requests to devote the additional resources that would be required to comply with the scope of proactive posting suggested by this comment. As such, DHS declines to incorporate this proposed new section.
Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget.
DHS has considered the costs and benefits of this rule. This rule will not introduce new regulatory mandates. In the proposed rule we stated that this rule would not result in additional costs on the public or the government. As explained above, some commenters raised concerns about the potential burden associated with a streamlined process for administratively closing unclear requests, though none offered a quantified estimate of that burden. We continue to believe that DHS's general assessment of the economic impacts of this rule, as stated in the proposed rule, is accurate. DHS does acknowledge that there will be a limited number of cases, however, in which this rule will result in some requesters clarifying
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, and section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 note, agencies must consider the impact of their rulemakings on “small entities” (small businesses, small organizations and local governments). The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. DHS has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. DHS does not believe this rule imposes any additional direct costs on small entities. However, as explained in the previous Executive Orders 12866 and 13563 section, it is possible that an entity that resubmits a request might incur a slightly different impact than one that clarifies a request. Such a cost difference would be so minimal it would be difficult to quantify. DHS further notes that although one commenter stated that he found the proposed rule's regulatory flexibility certification “challenging,” no commenter stated the proposed rule would cause a significant economic impact on a substantial number of small entities, or provided any comments suggesting such an impact on a substantial number of small entities. Based on the previous analysis and the comments on the proposed rule, DHS certifies this rule will not have a significant economic impact on a substantial number of small entities.
This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (as amended), 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
Classified information, Courts, Freedom of information, Government employees, Privacy.
Administrative practice and procedure, Confidential business information, Courts, Freedom of information, Law enforcement, Privacy, Reporting and recordkeeping requirements.
Courts, Freedom of information, Government employees.
For the reasons stated in the preamble, the Department of Homeland Security amends 6 CFR chapter I, part 5, 19 CFR chapter I, part 103, and 44 CFR chapter I, part 5, as follows:
5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 301; 6 U.S.C. 101
(a)(1) This subpart contains the rules that the Department of Homeland Security follows in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552 as amended.
(2) The rules in this subpart should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget at 52 FR 10012 (March 27, 1987) (hereinafter “OMB Guidelines”). Additionally, DHS has additional policies and procedures relevant to the FOIA process. These resources are available at
(b) As referenced in this subpart, component means the FOIA office of each separate organizational entity within DHS that reports directly to the Office of the Secretary.
(c) DHS has a decentralized system for processing requests, with each component handling requests for its records.
(d)
Records that are required by the FOIA to be made available for public inspection in an electronic format are accessible on DHS's Web site,
(a)
(2) A requester may also send his or her request to the Privacy Office,
U.S. Department of Homeland Security, 245 Murray Lane SW STOP-0655, or via the internet at
(3) A requester who is making a request for records about him or herself must comply with the verification of identity provision set forth in subpart B of this part.
(4) Where a request for records pertains to a third party, a requester may receive greater access by submitting either a notarized authorization signed by that individual, in compliance with the verification of identity provision set forth in subpart B of this part, or a declaration made in compliance with the requirements set forth in 28 U.S.C. 1746 by that individual, authorizing disclosure of the records to the requester, or by submitting proof that the individual is deceased (
(b)
(c) If a request does not adequately describe the records sought, DHS may at its discretion either administratively close the request or seek additional information from the requester. Requests for clarification or more information will be made in writing (either via U.S. mail or electronic mail whenever possible). Requesters may respond by U.S. Mail or by electronic mail regardless of the method used by DHS to transmit the request for additional information. In order to be
(a)
(b)
(c)
(d)
(1) The component may respond to the request, after consulting with the component or the agency that originated or has a substantial interest in the records involved.
(2) The component may respond to the request after coordinating with the other components or agencies that originated the record. This may include situations where the standard referral procedure is not appropriate where disclosure of the identity of the component or agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. For example, if a non-law enforcement component responding to a request for records on a living third party locates records within its files originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publicly known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if a component locates material within its files originating with an Intelligence Community agency, and the involvement of that agency in the matter is classified and not publicly acknowledged, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harms. In such instances, in order to avoid harm to an interest protected by an applicable exemption, the component that received the request should coordinate with the originating component or agency to seek its views on the disclosability of the record. The release determination for the record that is the subject of the coordination should then be conveyed to the requester by the component that originally received the request.
(3) The component may refer the responsibility for responding to the request or portion of the request to the component or agency best able to determine whether to disclose the relevant records, or to the agency that created or initially acquired the record as long as that agency is subject to the FOIA. Ordinarily, the component or agency that created or initially acquired the record will be presumed to be best able to make the disclosure determination. The referring component shall document the referral and maintain a copy of the records that it refers.
(e)
(f)
(g)
(h)
(i)
(2)
(i) Creating computer programs or purchasing additional hardware to extract email that has been archived for emergency retrieval usually are not considered business as usual if extensive monetary or personnel resources are needed to complete the project.
(ii) Creating a computer program that produces specific requested fields or records contained within a well-defined database structure usually is considered
(3)
(a)
(b)
(c)
(d)
(e)
(i) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged federal government activity, if made by a person who is primarily engaged in disseminating information;
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence.
(2) A request for expedited processing may be made at any time. Requests based on paragraphs (e)(1)(i), (ii), and (iii) of this section must be submitted to the component that maintains the records requested. When making a request for expedited processing of an administrative appeal, the request should be submitted to the DHS Office of General Counsel or the component Appeals Officer. Address information is available at the DHS Web site,
(3) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (e)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that he or she is a person who primarily engages in information dissemination, though it need not be his or her sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request—one that extends beyond the public's right to know about government activity generally. The existence of numerous articles published on a given subject can be helpful to establishing the requirement that there be an “urgency to inform” the public on the topic. As a matter of administrative discretion, a component may waive the formal certification requirement.
(4) A component shall notify the requester within ten calendar days of the receipt of a request for expedited processing of its decision whether to grant or deny expedited processing. If expedited processing is granted, the request shall be given priority, placed in the processing track for expedited requests, and shall be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision shall be acted on expeditiously.
(a)
(b)
(c)
(d)
(e)
(1) The name and title or position of the person responsible for the denial;
(2) A brief statement of the reasons for the denial, including any FOIA exemption applied by the component in denying the request;
(3) An estimate of the volume of any records or information withheld, for example, by providing the number of pages or some other reasonable form of estimation. This estimation is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part, or if providing an estimate would harm an interest protected by an applicable exemption; and
(4) A statement that the denial may be appealed under § 5.8(a), and a description of the requirements set forth therein.
(5) A statement notifying the requester of the assistance available from the agency's FOIA Public Liaison and the dispute resolution services offered by OGIS.
(f)
(g)
(2) Any component invoking an exclusion shall maintain an administrative record of the process of invocation and approval of the exclusion by OIP.
(a)
(2)
(b)
(c)
(i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(ii) The component has a reason to believe that the requested information may be protected from disclosure under Exemption 4.
(2) The notice shall either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, notice may be made by posting or publishing the notice in a place or manner reasonably likely to accomplish it.
(d)
(1) The component determines that the information is exempt under the FOIA;
(2) The information lawfully has been published or has been officially made available to the public;
(3) Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous, except that, in such a case, the component shall give the submitter written notice of any final decision to disclose the information and must provide that notice within a reasonable number of days prior to a specified disclosure date.
(e)
(2) A submitter who fails to respond within the time period specified in the notice shall be considered to have no
(f)
(g)
(1) A statement of the reasons why each of the submitter's disclosure objections was not sustained;
(2) A description of the information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time subsequent to the notice, but no fewer than 10 working days.
(h)
(i)
(j)
(a)
(2) An adverse determination by the component appeals officer will be the final action of DHS.
(b)
(2) On receipt of any appeal involving classified information, the Appeals Officer shall consult with the Chief Security Officer, and take appropriate action to ensure compliance with 6 CFR part 7;
(3) If the appeal becomes the subject of a lawsuit, the Appeals Officer is not required to act further on the appeal.
(c)
(d)
(e)
Each component shall preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized pursuant to title 44 of the United States Code or the General Records Schedule 4.2 and/or 14 of the National Archives and Records Administration. Records will not be disposed of or destroyed while they are the subject of a pending request, appeal, or lawsuit under the FOIA.
(a)
(2) If the information the requester is seeking is not subject to the Privacy Act (
(b)
(c)
(1) The information is required to be released under the FOIA, as provided by 5 U.S.C. 552a (b)(2); or
(2) In most circumstances, if the individual is deceased.
(d)
(a)
(b)
(1)
(2)
(3)
(4)
A request from a professor of geology at a university for records relating to soil erosion, written on letterhead of the Department of Geology, would be presumed to be from an educational institution if the request adequately describes how the requested information would further a specific research goal of the educational institution.
A request from the same professor of geology seeking immigration information from the U.S. Immigration and Customs Enforcement in furtherance of a murder mystery he is writing would not be presumed to be an institutional request, regardless of whether it was written on institutional stationery.
A student who makes a request in furtherance of their coursework or other school-sponsored activities and provides a copy of a course syllabus or other reasonable documentation to indicate the research purpose for the request, would qualify as part of this fee category.
These examples are provided for guidance purposes only. Each individual request will be evaluated under the particular facts, circumstances, and information provided by the requester.
(5)
(6)
(7)
(8)
(c)
(1)
(ii) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be as follows: Managerial—$10.25; professional—$7.00; and clerical/administrative—$4.00.
(iii) Requesters will be charged the direct costs associated with conducting any search that requires the creation of a new computer program, as referenced in section 5.4, to locate the requested records. Requesters shall be notified of the costs associated with creating such a program and must agree to pay the associated costs before the costs may be incurred.
(iv) For requests that require the retrieval of records stored by an agency at a federal records center operated by the National Archives and Records Administration (NARA), additional costs shall be charged in accordance with the Transactional Billing Rate Schedule established by NARA.
(2)
(3)
(d)
(2) If a component fails to comply with the FOIA's time limits in which to respond to a request, it may not charge search fees, or, in the instances of requests from requesters described in paragraph (d)(1) of this section, may not charge duplication fees, except as described in (d)(2)(i) through (iii).
(i) If a component has determined that unusual circumstances as defined by the FOIA apply and the component provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit shall be excused for an additional 10 days.
(ii) If a component has determined that unusual circumstances, as defined by the FOIA, apply and more than 5,000 pages are necessary to respond to the request, a component may charge search fees, or, in the case of requesters described in paragraph (d)(1) of this section, may charge duplication fees, if the following steps are taken. The component must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA and the component must have discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5. U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, the component may charge all applicable fees incurred in the processing of the request.
(iii) If a court has determined that exceptional circumstances exist, as defined by the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order.
(3) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review.
(4) Except for requesters seeking records for a commercial use, components will provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent for other media); and
(ii) The first two hours of search.
(5) When, after first deducting the 100 free pages (or its cost equivalent) and the first two hours of search, a total fee calculated under paragraph (c) of this section is $14.00 or less for any request, no fee will be charged.
(e)
(2) In cases in which a requester has been notified that the actual or estimated fees are in excess of $25.00, the request shall not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees he or she is willing to pay, or in the case of a noncommercial use requester who has not yet been provided with his or her statutory entitlements, designates that he or she seeks only that which can be provided by the statutory entitlements. The requester must provide the commitment or designation in writing, and must, when applicable, designate an exact dollar amount the requester is willing to pay. Components are not required to accept payments in installments.
(3) If the requester has indicated a willingness to pay some designated amount of fees, but the component estimates that the total fee will exceed that amount, the component will toll the processing of the request while it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. The component shall inquire whether the requester wishes to revise the amount of fees he or she is willing to pay and/or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification.
(4) Components will make available their FOIA Public Liaison or other FOIA professional to assist any requester in reformulating a request to meet the requester's needs at a lower cost.
(f)
(g)
(h)
(i)
(2) When a component determines or estimates that a total fee to be charged under this section will exceed $250.00, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. A component may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment.
(3) Where a requester has previously failed to pay a properly charged FOIA fee to any component or agency within 30 calendar days of the billing date, a component may require that the requester pay the full amount due, plus any applicable interest on that prior request and the component may require that the requester make an advance payment of the full amount of any anticipated fee, before the component begins to process a new request or continues to process a pending request or any pending appeal. Where a component has a reasonable basis to believe that a requester has misrepresented his or her identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity.
(4) In cases in which a component requires advance payment, the request shall not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 30 calendar days after the date of the component's fee determination, the request will be closed.
(j)
(k)
(i) Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government; and
(ii) Disclosure of the information is not primarily in the commercial interest of the requester.
(2) In deciding whether disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of operations or activities of the government, components will consider the following factors:
(i) The subject of the request must concern identifiable operations or activities of the federal government, with a connection that is direct and clear, not remote or attenuated.
(ii) Disclosure of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not contribute to such understanding where nothing new would be added to the public's understanding.
(iii) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as his or her ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media will satisfy this consideration.
(iv) The public's understanding of the subject in question must be enhanced by
(3) To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, components will consider the following factors:
(i) Components shall identify any commercial interest of the requester, as defined in paragraph (b)(1) of this section, that would be furthered by the requested disclosure. Requesters shall be given an opportunity to provide explanatory information regarding this consideration.
(ii) A waiver or reduction of fees is justified where the public interest is greater than any identified commercial interest in disclosure. Components ordinarily shall presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest.
(4) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records.
(5) Requests for a waiver or reduction of fees should be made when the request is first submitted to the component and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester will be required to pay any costs incurred up to the date the fee waiver request was received.
(6)
(a)
(b)
(1)
(i) The business submitter has in good faith designated the information as commercially- or financially-sensitive information. The business submitter's claim of confidentiality should be supported by a statement by an authorized representative of the business entity providing specific justification that the information in question is considered confidential commercial or financial information and that the information has not been disclosed to the public; or
(ii) CBP has reason to believe that disclosure of the commercial information could reasonably be expected to cause substantial competitive harm.
(2)
(i) CBP determines that the commercial information will not be disclosed;
(ii) The commercial information has been lawfully published or otherwise made available to the public; or
(iii) Disclosure of the information is required by law (other than 5 U.S.C. 552).
(c)
(2)
(d)
(1) A statement of the reasons for which the business submitter's disclosure objections were not sustained;
(2) A description of the commercial information to be disclosed; and
(3) A specified disclosure date which will not be less than 10 days (exclusive of Saturdays, Sundays, and legal public holidays) after the notice of intent to disclose the requested information has been issued to the business submitter. Except as otherwise prohibited by law, CBP will also provide a copy of the notice of intent to disclose to the FOIA requester at the same time.
(e)
Nothing in this subpart shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.
Please direct all requests for information from the Office of the Secretary, Citizenship and Immigration Services Ombudsman, Domestic Nuclear Detection Office, Office of the Executive Secretary, Office of Intergovernmental Affairs, Management Directorate, Office of Policy, Office of the General Counsel, Office of Health Affairs, Office of Legislative Affairs, Office of Public Affairs and the Privacy Office, to the DHS Privacy Office at:
5 U.S.C. 301, 552, 552a; 19 U.S.C. 66, 1624; 31 U.S.C. 9701.
Section 103.31 also issued under 19 U.S.C. 1431;
Section 103.31a also issued under 19 U.S.C. 2071 note and 6 U.S.C. 943;
Section 103.33 also issued under 19 U.S.C. 1628;
Section 103.34 also issued under 18 U.S.C. 1905.
Pub. L. 107-296, 116 Stat. 2135; 5 U.S.C. 301.
Subpoenas duces tecum issued pursuant to litigation or any other adjudicatory proceeding in which the United States is a party shall be referred to the Chief Counsel.
Federal Deposit Insurance Corporation.
Interim final rule and request for comment.
This rule amends the Federal Deposit Insurance Corporation's (FDIC) regulations under the Freedom of Information Act (FOIA) to incorporate certain changes made to the FOIA by the FOIA Improvement Act of 2016 (FOIA Improvement Act). In addition, this rule amends certain provisions to reflect changes brought about by prior amendments to the FOIA that had been incorporated into agency practice and corrects inaccurate contact information and adjusts numbering and lettering of current provisions because of additions to the regulations.
This rule is effective November 22, 2016. Comments must be submitted by January 23, 2017.
You may submit written comments, which must include the agency name and RIN 3064-AE53, by one of the following methods:
•
•
•
•
•
Hugo Zia, Supervisory Counsel, FDIC, FOIA/Privacy Act Group, Legal Division, at
The policy objective of this interim final rule is to bring the FDIC's FOIA regulations
This rule amends the FDIC's regulations under the FOIA to incorporate certain changes made to the FOIA, 5 U.S.C. 552, by the FOIA Improvement Act. Among other things, the FOIA Improvement Act requires agencies to provide a minimum of 90 days for requesters to file an administrative appeal. The FOIA Improvement Act also requires agency regulations to address dispute resolution procedures and to provide notification to requesters about the availability of dispute resolution services. The FOIA Improvement Act requires the FDIC to issue regulations which incorporate the changes made by the FOIA Improvement Act not later than 180 days after the date of its enactment (
In addition, as explained below, this rule amends certain provisions to reflect changes brought about by the amendments to the FOIA in the OPEN Government Act and the OPEN FOIA Act. These amendments to the FOIA from 2007 and 2009 have been followed by the FDIC even though the agency's regulations had not been amended.
Finally, the rule corrects one instance of inaccurate contact information and adjusts the numbering and lettering of current provisions because of additions made to the regulations.
The following changes have been made to the FDIC's FOIA regulations:
Paragraph (e) of § 309.2 (Definitions) is revised to include the current definition for a record under the FOIA. Section 9 of the OPEN Government Act amended the definitions section of the FOIA, 5 U.S.C. 552(f), by including within the definition of “record” any information “maintained for an agency by an entity under Government contract, for the purposes of records management.” This amendment made clear that records, in the possession of Government contractors for purposes of records management, are considered agency records for purposes of the FOIA. Through this change to the regulations, the FDIC adopts the statutory definition of “record.”
Paragraph (a)(2) of § 309.4 (Records available on the FDIC's World Wide Web page) is revised to replace outdated wording concerning the inspection of records that are required to be made available to the public. In the current version of the FDIC's regulations, the phrase “via computer telecommunications” is used. The FOIA Improvement Act changed this wording to “for inspection in an electronic format.” Through this change to the regulations, the FDIC adopts the language concerning public inspection of records in the FOIA Improvement Act.
Paragraph (a)(2)(i)(D) of § 309.4 (Records available on the FDIC's World Wide Web page) is revised to include
Paragraph (b) of § 309.4 (Public Information Center) is revised to correct inaccurate contact information for the FDIC's Public Information Center. This revision to the regulations is required so that requesters have the correct contact information when inquiring about publicly available records.
Paragraph (a)(6) of § 309.5 (Representative of the news media) is revised to include the current definition of “representative of the news media” under the FOIA. Section 3 of the OPEN Government Act amended 5 U.S.C. 552(a)(4)(A)(ii) of the FOIA by expressly providing a definition of “representative of the news media.” Through this change to the regulations, the FDIC adopts the definition of “representative of the news media” that is in the OPEN Government Act.
Paragraph (d)(1) of § 309.5 (Receipt of requests) is revised to specify that the FDIC will provide a requester with an individualized tracking number for any FOIA request that satisfies 12 CFR 309.5(b), no matter how long it will take to process the request. Section 7 of the OPEN Government Act amended 5 U.S.C. 552(a) by requiring agencies to assign an individualized tracking number for each request that will require more than ten days to process. This section codified existing requirements set forth in Executive Order 13,392. Providing tracking numbers for every FOIA request that satisfies § 309.5(b), including those that will take less than ten days to process, has been the practice of the FDIC for a number of years, is in accord with the current practice of the FDIC and adopts the language of the OPEN Government Act.
Paragraph (d)(4) of § 309.5 is revised to account for a change in numbering because of the addition of § 309.5(h) (Dispute resolution). Previously, the paragraph covering procedures concerning appeals that is cross-referenced in this paragraph was § 309.5(h); it is now § 309.5(i). This adjustment to numbering is necessary to maintain the organizational integrity of the regulations.
Paragraph (d)(6) of § 309.5 (Checking status of request) is added to notify requesters of the contact information for FDIC's FOIA Service Center (telephone number and Web site address), thereby enabling requesters to obtain certain information about the status of their request. Section 7 of the OPEN Government Act amended 5 U.S.C. 552(a) by requiring agencies to establish a telephone number or a Web site to allow requesters to inquire about the status of their request, obtain the date an agency originally received their request, and obtain an estimated date for the completion of the agency's processing of their request. This section of the OPEN Government Act codified existing requirements set forth in Executive Order 13,392. The FDIC has a FOIA Service Center that is accessible via the internet and telephone and, through either method, requesters are provided with the date of the FDIC's receipt of their request and the estimated date on which the FDIC will complete its processing of their request. The FDIC has made these services and information available to requesters for a number of years. The addition of this notification provision to the regulations is in accord with the FDIC's current practice and adopts the language in the OPEN Government Act.
Paragraph (d)(7) of § 309.5 (Notification) is revised in numbering because of the addition of § 309.5(d)(6) (Checking status of request). Previously this paragraph was § 309.5(d)(6) (Notification); it is now § 309.5(d)(7) (Notification). This adjustment to numbering is necessary to maintain the organizational integrity of the regulations.
Paragraph (d)(8) of § 309.5 (Response to request) is revised in numbering because of the addition of § 309.5(d)(6) (Checking status of request). Previously this paragraph was § 309.5(d)(7); it is now § 309.5(d)(8). This adjustment to numbering is necessary to maintain the organizational integrity of the regulations.
Paragraph (d)(8)(iii) of § 309.5 (Response to request) is added to require the FDIC to notify requesters, in its response to their request, of their right to seek assistance from the FDIC's FOIA Public Liaison, if the FDIC determines such request satisfies 12 CFR 309.5(b). Section 2 of the FOIA Improvement Act added 5 U.S.C. 552(a)(6)(A)(i)(II), which requires agencies to offer the services of their FOIA Public Liaison when issuing their determinations of requests. The addition of this notification provision to the regulations is in accord with the FDIC's current practice and is required by the FOIA Improvement Act.
Paragraph (d)(8)(iv) of § 309.5 (Response to request) is revised in numbering because of the addition of § 309.5(d)(8)(iii) (Checking status of request). Previously this paragraph was § 309.5(d)(8)(iii); it is now § 309.5(d)(8)(iv). This adjustment to numbering is necessary to maintain the organizational integrity of the regulations.
Paragraph (d)(8)(iv)(C) of § 309.5 (Response to request) is revised to remove an “and” because of the addition of § 309.5(d)(8)(iv)(E). This removal is necessary to maintain the organizational integrity of the regulations.
Paragraph (d)(8)(iv)(D) of § 309.5 (Response to request) is revised to provide for notification to the requester that the deadline to file an administrative appeal is extended to 90 days, in conformity with the 90-day time period established by the FOIA Improvement Act. Section 2 of the FOIA Improvement Act amended 5 U.S.C. 552(a)(6)(A)(i) by changing the time period for an appeal of adverse determinations, from 30 days to 90 days. This paragraph is also revised to add an “and” because of the addition of § 309.5(d)(8)(iv)(E). These changes are required by the FOIA Improvement Act and for the regulation to remain organized.
Paragraph (d)(8)(iv)(E) of § 309.5 (Response to request) is added to include a requirement that the FDIC notify requesters, in response to an adverse determination of a request that satisfies § 309.5(b), of their right to seek assistance from the FDIC's FOIA Public Liaison and/or the Office of Government Information Services (OGIS) at the National Archives and Records Administration. Section 2 of the FOIA Improvement Act added 5 U.S.C. 552(a)(6)(A)(i)(III), which requires that when agencies make adverse determinations on requests, they must offer the services of their FOIA Public Liaison and/or OGIS. The addition of this provision concerning notification to the regulations is required by the FOIA Improvement Act.
Paragraph (f)(1)(x) of § 309.5 is revised to account for a change in numbering because of the addition of § 309.5(h) (Dispute resolution). Previously, the paragraph referring to procedures concerning appeals that is cross-referenced in this paragraph was § 309.5(h); it is now § 309.5(i). This adjustment to numbering is necessary to maintain the organizational integrity of the regulations.
Paragraph (g)(3)(i) of § 309.5 (Exempt information) is revised in numbering and by adding an “and” because of the addition of § 309.5(g)(3)(ii). Previously this paragraph was § 309.5(d)(8)(iii); it is now § 309.5(d)(8)(iv). This adjustment to numbering and the addition of an “and” is necessary to maintain the organizational integrity of the regulations.
Paragraph (g)(3)(ii) of § 309.5 (Exempt information) is added to include a requirement codified in the OPEN FOIA Act that statutes enacted after the date of the enactment of the OPEN FOIA Act must specifically cite to Exemption 3 of the FOIA in order to qualify under Exemption 3. The OPEN FOIA Act was enacted on October 28, 2009, and so this amendment impacts statutes enacted after that date. In order for any statute enacted after that date to qualify as an Exemption 3 statute, it must satisfy one of the traditional requirements,
Paragraph (h) of § 309.5 (Dispute resolution) is added to include procedures for engaging in dispute resolution through the FOIA Public Liaison and OGIS. Section 3 of the FOIA Improvement Act requires agencies to amend their regulations to include procedures for engaging in dispute resolution through the FOIA Public Liaison and OGIS. The FDIC has pointed requesters to its FOIA Service Center at
Paragraph (i) of § 309.5 (Appeals) is revised in numbering because of the addition of § 309.5(h) (Dispute resolution). Previously this paragraph was § 309.5(h); it is now § 309.5(i). This adjustment to numbering is necessary to maintain the organizational integrity of the regulations.
Paragraph (i)(2) of § 309.5 (Appeals) is revised to extend the time to file an administrative appeal to 90 days, in conformity with the 90-day time period established by the FOIA Improvement Act. Section 2 of the FOIA Improvement Act amended 5 U.S.C. 552(a)(6)(A)(i), changing the time period for appeal of adverse determinations from 30 days to 90 days. This change to the regulations is required by the FOIA Improvement Act.
Paragraph (j) of § 309.5 (Records of another agency) is revised in numbering because of the addition of § 309.5(h) (Dispute resolution). Previously this paragraph was § 309.5(i); it is now § 309.5(j). This adjustment to numbering is necessary to maintain the organizational integrity of the regulations.
The FDIC has analyzed the expected effects of the interim final rule and estimates them to be relatively small. The rule makes two primary changes to the existing regulations: Extending the deadline for requesters to file an appeal, and establishing procedures for dispute resolution and requiring notice to requesters about the availability of dispute resolution services. These changes help support the policy objective of the FOIA, which is to provide public access to government information.
The provision in the interim final rule that extends the time period for which an appeal will be considered will likely result in a small increase in administrative costs associated with FOIA requests, but that may be offset by a decrease in lawsuits brought since requesters will now have a larger window for seeking administrative review of an adverse request determination. In the past ten fiscal years, the FDIC has received 238 appeals from FOIA requesters, an average of 24 appeals per fiscal year. The extension of the appeal time period from 30 business days to 90 calendar days will likely result in a general increase in number of appeals, given the larger window for filing an appeal. A general increase in the number of appeals will likely increase administrative costs for the FDIC. Any potential increase in administrative costs as a result of the extension of the appeal period rule is difficult to estimate given that costs will depend upon both the volume of requests received and the extent to which the requests may be subject, in whole or in part, to denial. However, the extension of the appeal period will benefit the public by expanding the deadline for requesters to file an administrative appeal of adverse determinations made by the FDIC.
The establishment of a dispute resolution process also supports public access to government information while likely posing a small increase in administrative costs for the FDIC and/or the OGIS. The establishment of a dispute resolutions process, in addition to the FDIC appeal process, will support public access to government records by providing requesters with an additional mechanism for the review of adverse determinations, in the event of a dispute. Any potential increase in administrative costs as a result of the establishment of a dispute resolution process by the interim final rule is difficult to estimate, given the unpredictable elements noted above.
The interim final rule also makes changes to the FDIC's FOIA regulations to reflect FDIC FOIA practices initially prompted by the OPEN Government Act and the OPEN FOIA Act. Most of the changes to the FDIC FOIA regulations are procedural and either codify current practice or make benign changes to the FOIA regulations that are unlikely to pose any costs or benefits for the Public.
In conclusion, there is potential for a small increase in administrative costs for the FDIC posed by the revisions, but the policy objective of public access to government information continues to be supported and would in fact be enhanced—as required by the FOIA Improvement Act.
The changes in the interim final rule are mandated by the FOIA Improvement Act and are in accord with the OPEN Government Act and the OPEN FOIA Act. Under the FOIA Improvement Act, the FDIC has no discretion to make or consider alternative specifications to the provisions in the interim final rule. The other technical changes to 12 CFR part 309 are minor and designed to improve the transparency and readability of the CFR, and therefore FDIC staff did not actively consider alternative approaches to these changes.
Pursuant to the Administrative Procedure Act (the “APA”), at 5 U.S.C. 553(b), notice and comment are not required prior to the issuance of a final rule if an agency, for good cause, finds that “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” As discussed above, the FOIA Improvement Act requires the FDIC to issue regulations which incorporate the changes made by the FOIA Improvement Act not later than 180 days after the date of its enactment (
Section 302 of the Riegle Community Development and Regulatory Improvement Act
The Regulatory Flexibility Act (RFA)
The FDIC determined that this interim final rule will not affect family wellbeing within the meaning of section 654 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999.
The Paperwork Reduction Act of 1995
Section 722 of the Gramm-Leach-Bliley Act requires the FDIC to use plain language in all proposed and final rules published after January 1, 2000.
• Has the FDIC organized the material to suit your needs? If not, how could the FDIC present the rule more clearly?
• Are the requirements in the rule clearly stated? If not, how could the rule be more clearly stated?
• Does the rule contain technical language or jargon that is not clear? If so, which language requires clarification?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand? If so, what changes would achieve that?
• Is this section format adequate? If not, which of the sections should be changed and how?
• What other changes can the FDIC incorporate to make the rule easier to understand?
Federal Deposit Insurance Corporation, Procedure and Rules of Practice, Disclosure of Information.
Accordingly, for the reasons stated in the preamble, 12 CFR chapter 3, subchapter A, part 309 is amended as follows:
5 U.S.C. 552; 12 U.S.C. 1819 “Seventh” and “Tenth.”
(e) The term
(1) Any information that would be an agency record subject to the requirements of this section when maintained by the FDIC in any format, including an electronic format; and
(2) Any information described under paragraph (e)(1) of this section that is maintained for the FDIC by an entity under Government contract, for purposes of records management.
(a)
(2)
(D) Copies of all records released to any person under § 309.5:
(
(
(b)
The revisions and additions read as follows:
(a)
(6)
(d) * * *
(1)
(4) A requester seeking expedited processing will be notified whether expedited processing has been granted within ten (10) working days of the receipt of the request. If the request for expedited processing is denied, the requester may file an appeal pursuant to the procedures set forth in paragraph (i) of this section, and the FDIC shall respond to the appeal within ten (10) working days after receipt of the appeal.
(6)
(i) Online at the FDIC's FOIA Service Center, at
(ii) By calling the FDIC's FOIA Service Center at (202) 898-7021, if the request was submitted by email, facsimile or regular mail.
(8) * * *
(iii) The right of the requester to seek assistance from the FDIC's FOIA Public Liaison; and
(iv) * * *
(C) The exemptions relied on for the denial;
(D) The right of the requester to appeal the denial to the FDIC's General Counsel within 90 calendar days following receipt of the notification, as specified in paragraph (i) of this section; and
(E) The right of the requester to seek dispute resolution services from the FDIC's FOIA Public Liaison and/or the Office of Government Information Services (OGIS).
(f) * * *
(1) * * *
(x) As part of the initial request, a requester may ask that the FDIC waive or reduce fees if disclosure of the records is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. Determinations as to a waiver or reduction of fees will be made by the FOIA/PA Group, Legal Division (or designee) and the requester will be notified in writing of his/her determination. A determination not to grant a request for a waiver or reduction of fees under this paragraph may be appealed to the FDIC's General Counsel (or designee) pursuant to the procedure set forth in paragraph (i) of this section.
(g) * * *
(3) Records specifically exempted from disclosure by statute, provided that such statute:
(i)(A) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or
(B) Establishes particular criteria for withholding or refers to particular types of matters to be withheld; and
(ii) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to 5 U.S.C. 552(b)(3);
(h)
(i) * * *
(2) A person whose initial request for records under this section, or whose request for a waiver of fees under paragraph (f)(1)(x) of this section, has been denied, either in part or in whole, has the right to appeal the denial to the FDIC's General Counsel (or designee) within 90 calendar days after receipt of notification of the denial. Appeals of denials of initial requests or for a waiver of fees must be in writing and include any additional information relevant to consideration of the appeal.
By order of the Board of Directors.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are superseding Airworthiness Directive (AD) 2013-25-08 for all Airbus Model A330-200, -200 Freighter, and -300 series airplanes; and Model A340-200 and -300 series airplanes. AD 2013-25-08 required a repetitive inspection program on certain check valves in the hydraulic systems that includes, among other things, inspections for lock wire presence and integrity, traces of seepage or black deposits, proper torque, alignment of the check valve and manifold, installation of new lock wire, and corrective actions if needed. This new AD removes airplanes from the applicability, and requires modifying the green, blue, and yellow high pressure hydraulic manifolds by replacing certain check valves with improved check valves, which terminates the repetitive inspections required by this AD. This AD was prompted by multiple reports of hydraulic line check valves loosening. We are issuing this AD to address the unsafe condition on these products.
This AD is effective December 27, 2016.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of December 27, 2016.
The Director of the Federal Register approved the incorporation by reference of certain other publications listed in this AD as of January 31, 2014 (78 FR 78694, December 27, 2013).
The Director of the Federal Register approved the incorporation by reference of certain other publications listed in this AD as of December 14, 2009 (74 FR 62208, November 27, 2009).
For service information identified in this final rule, 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
You may examine the AD docket on the Internet at
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.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013) (“AD 2013-25-08”). AD 2013-25-08 applied to all Airbus Model A330-200, -200 Freighter, and -300 series airplanes; and Model A340-200 and -300 series airplanes. The NPRM published in the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0009, dated January 16, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition. The MCAI states:
An A330 operator experienced a Yellow hydraulic circuit low level due to a loose check valve, Part Number (P/N) CAR401. During the inspection on the other two hydraulic systems, the other three check valves P/N CAR401 were also found to be loose with their lock wire broken in two instances. Airbus A340 aeroplanes are also equipped with P/N CAR401 high pressure manifold check valves.
Additional cases of P/N CAR401 check valve loosening have been reported on aeroplanes having accumulated more than 1,000 flight cycles (FC). The check valve fitted on the Yellow hydraulic system is more
This condition, if not detected and corrected, could result in hydraulic leaks, possibly leading to the loss of all three hydraulic systems and consequent loss of control of the aeroplane.
To address this unsafe condition, EASA issued Emergency AD 2009-0223-E [which corresponds to FAA AD 2009-24-09, Amendment 39-16068 (74 FR 62208, November 27, 2009)] to require an inspection programme to detect any check valve loosening and, if necessary, to apply the applicable corrective actions.
EASA AD 2010-0145, which superseded EASA EAD 2009-0223-E retaining its requirements, was issued to expand the applicability to the newly certified models A330-223F and A330-243F.
Prompted by further reported in-service events of check valve P/N CAR401 loosening before reaching the threshold of 700 FC, EASA AD 2011-0139, which superseded EASA AD 2010-0145, retaining its requirements, was issued to:
—Extend the requirement to identify the P/N CAR401 check valves to all aeroplanes, and
—reduce the inspection threshold for aeroplanes fitted with check valve P/N CAR401, either installed in production through Airbus modification 54491, or installed in service through Airbus Service Bulletin (SB) A330-29-3101 or Airbus SB A340-29-4078.
EASA AD 2012-0070, which superseded EASA AD 2011-0139, retaining its requirements, was issued to require an increased torque value of the check valve tightening and High Pressure (HP) manifold re-identification.
Since EASA AD 2012-0070 was issued, additional in-service events have been reported on aeroplanes fitted with check valves on which the increased torque value had been applied. Based on those events, it has been concluded that the action to re-torque the check valves with an increased value is not a satisfactory terminating action for addressing the issue of those check valves.
To address that, EASA issued AD 2012-0244, which partially retained the requirements of EASA AD 2012-0070, which was superseded. Additionally, for aeroplanes equipped with P/N CAR401 on which the increased torque value had been applied, EASA AD 2012-0244 required repetitive inspections of the check valves and HP manifolds. Finally, EASA AD 2012-0244 also required application of a lower torque value when a check valve P/N CAR401 is installed on an aeroplane.
EASA AD was revised to clarify which actions are required for P/N CAR401 check valves, depending on applied (or not) torque value.
Since EASA AD 2012-0244R1 was issued, Airbus developed an improved check valve P/N CAR402, which is embodied in production through Airbus modification 203972, and in service through associated Airbus SB A330-29-3125, or Airbus SB A340-29-4096, as applicable to aeroplane type. In addition, these SBs provide instructions about the torque value (between 230 and 250 Nm) and re-identification of HP manifolds after check valve P/N CAR402 installation.
For the reasons described above, this [EASA] AD retains the requirements of EASA AD 2012-0244R1, which is superseded, and requires the installation of check valves P/N CAR402 as terminating action to the repetitive inspections [and removes airplanes on which Airbus modification 203972 has been embodied from the applicability].
You may examine the MCAI in the AD docket on the Internet at
We gave the public the opportunity to participate in developing this AD. The following presents the comment received on the NPRM and the FAA's response to the comment.
American Airlines (AAL) stated that it operates 24 airplanes that will be affected by the NPRM, and that it agrees with the need to accomplish Airbus Service Bulletin A330-29-3125 on these airplanes.
AAL requested that we revise the NPRM to reference Airbus Service Bulletin A330-29-3125, Revision 02, including Appendixes 01 and 02, dated January 21, 2016. AAL pointed out that this revision includes several corrections in the Accomplishment Instructions.
We agree to reference the latest service information in this final rule. Since we issued the NPRM, Airbus has issued Airbus Service Bulletin A330-29-3125, Revision 03, including Appendixes 01 and 02, dated April 8, 2016; and Service Bulletin A340-29-4096, Revision 02, including Appendixes 01 and 02, dated April 8, 2016. This service information states that no additional work is required by these revisions for airplanes modified by any previous issue. We have revised paragraph (p) of this AD to reference this revised service information as appropriate sources of service information for accomplishing the actions required by that paragraph. We have also revised paragraph (s) of this AD by adding credit for actions required by paragraph (p) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A330-29-3125, Revision 02, including Appendixes 01 and 02, dated January 21, 2016; or Airbus Service Bulletin A330-29-3125, Revision 01, including Appendixes 01 and 02, dated July 30, 2015; or Airbus Service Bulletin A340-29-4096, Revision 01, including Appendixes 01 and 02, dated July 30, 2015; as applicable. Additionally, we have reformatted paragraph (s) of this AD to improve readability; this change does not affect the intent or requirements of that paragraph.
We reviewed the available data, including the comment 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 changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
Airbus has issued Service Bulletin A330-29-3125, Revision 03, including Appendixes 01 and 02, dated April 8, 2016; and Service Bulletin A340-29-4096, Revision 02, including Appendixes 01 and 02, dated April 8, 2016. This service information describes procedures for modifying the green, blue, and yellow high pressure hydraulic manifolds by replacing each check valve having P/N CAR401 with an improved check valve having P/N CAR402. These documents are distinct since they apply to different airplane models. 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
We estimate that this AD affects 88 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
The actions required by AD 2013-25-08, and retained in this AD take about 10 work-hours per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that were required by AD 2013-25-08 is $850 per product.
We also estimate that it would take about 32 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD. We have no way of determining the number of aircraft that might need these actions.
According to the manufacturer, some of the costs of this 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 available costs in our cost estimate.
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.
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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective December 27, 2016.
This AD replaces AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013) (“AD 2013-25-08”).
This AD applies to Airbus airplanes, certificated in any category, as identified in paragraphs (c)(1) and (c)(2) of this AD.
(1) Model A330-201, -202, -203, -223, -223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes, all manufacturer serial numbers except those on which Airbus modification 203972 has been embodied in production.
(2) Model A340-211, -212, -213, -311, -312, and -313 airplanes, all manufacturer serial numbers.
Air Transport Association (ATA) of America Code 29, Hydraulic power.
This AD was prompted by multiple reports of hydraulic line check valves loosening. We are issuing this AD to detect and correct hydraulic check valve loosening; loosened valves could result in hydraulic leaks, possibly leading to the loss of all three hydraulic systems and consequent loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (g) of AD 2013-25-08, with no changes. Except for Model A330-223F and A330-243F airplanes: Do the actions required by paragraphs (g)(1) and (g)(2) of this AD.
(1) For airplanes that do not have Airbus Modification 54491 embodied in production, or Airbus Service Bulletin A330-29-3101 or Airbus Service Bulletin A340-29-4078 embodied in service: Within 100 flight cycles or 28 days after December 14, 2009 (the effective date of AD 2009-24-09, Amendment 39-16068 (74 FR 62208, November 27, 2009) (“AD 2009-24-09”)), whichever occurs first, inspect the check valves on the blue, green, and yellow hydraulic systems to identify their part numbers (P/Ns), in accordance with the instructions of Airbus All Operators Telex (AOT) A330-29A3111, Revision 1, dated October 8, 2009 (for Model A330-200 and -300 series airplanes); or Airbus AOT A340-29A4086, Revision 1, dated October 8, 2009 (for Model A340-200 and -300 series airplanes). Accomplishment of the inspection required by paragraph (h) of this AD terminates the requirements of this paragraph.
(i) If check valves having P/N CAR401 are installed on all three hydraulic systems, before further flight, do the actions specified in paragraph (g)(2)(i) of this AD. After accomplishing the actions required by paragraph (g)(2)(i) of this AD, do the actions specified in paragraphs (g)(2)(ii) and (g)(2)(iii) of this AD at the applicable compliance times specified in those paragraphs. Accomplishment of the inspection required by paragraph (i) of this AD terminates the requirements of this paragraph.
(ii) If check valves having P/N CAR401 are not installed on all three hydraulic systems, no further action is required by this paragraph until any check valve having P/N CAR400 is replaced with a check valve having P/N CAR401. If any check valve having P/N CAR400 is replaced by a check valve having P/N CAR401, before further flight, do the inspection specified in paragraph (g)(1) of this AD to determine if all three hydraulic systems are equipped with check valves having P/N CAR401. Accomplishment of the inspection required by paragraph (h) of this AD terminates the requirements of this paragraph.
(2) For airplanes on which Airbus Modification 54491 was embodied in production, or Airbus Service Bulletin A330-29-3101; or Airbus Service Bulletin A340-29-4078 was embodied in service, do the actions specified in paragraphs (g)(2)(i), (g)(2)(ii), and (g)(2)(iii) of this AD.
(i) Except as required by paragraph (g)(1)(i) of this AD, at the applicable times specified in paragraphs (g)(2)(i)(A) and (g)(2)(i)(B) of this AD, as applicable: Do the inspection program (detailed inspection of the lock wire for presence and integrity, a detailed inspection for traces of seepage or black deposits, and an inspection for proper torque) on yellow and blue high pressure manifolds, install new lock wires, and do all applicable corrective actions, in accordance with the instructions of paragraph 4.1.1 of Airbus AOT A330-29A3111, Revision 1, dated October 8, 2009 (for Model A330-200 and -300 series airplanes); or Airbus AOT A340-29A4086, Revision 1, dated October 8,
(A) For airplanes on which Airbus Modification 54491 has been embodied in production: At the later of the times specified in paragraphs (g)(2)(i)(A)(
(
(
(B) For airplanes on which Airbus Service Bulletin A330-29-3101 or Airbus Service Bulletin A340-29-4078 was embodied in service: At the later of the times specified in paragraphs (g)(2)(i)(B)(
(
(
(ii) Within 900 flight hours after accomplishment of paragraph (g)(2)(i) of this AD, do the inspection program (detailed inspection of the lock wire for presence and integrity, a detailed inspection for traces of seepage or black deposits, and an inspection for proper torque) and install a new lock wire on the green high pressure manifold; and do an inspection (detailed inspection for traces of seepage or black deposits, and detailed inspection to determine alignment of the check valve and manifold) on the yellow and blue high pressure manifolds, and do all applicable corrective actions; in accordance with the instructions of paragraph 4.1.2 of Airbus AOT A330-29A3111, Revision 1, dated October 8, 2009 (for Model A330-200 and -300 series airplanes); or Airbus AOT A340-29A4086, Revision 1, dated October 8, 2009 (for Model A340-200 and -300 series airplanes). Do all applicable corrective actions before further flight. Accomplishment of the inspection program required by paragraph (i) of this AD terminates the requirements of this paragraph.
(iii) Within 900 flight hours after accomplishment of paragraph (g)(2)(ii) of this AD, and thereafter at intervals not to exceed 900 flight hours, do the inspection program (detailed inspection for traces of seepage or black deposits, and detailed inspection to determine alignment of the check valve and manifold) on the green, yellow, and blue high pressure manifolds, and do all applicable corrective actions, in accordance with the instructions of paragraph 4.1.3 of Airbus AOT A330-29A3111, Revision 1, dated October 8, 2009 (for Model A330-200 and -300 series airplanes); or Airbus AOT A340-29A4086, Revision 1, dated October 8, 2009 (for Model A340-200 and -300 series airplanes). Do all applicable corrective actions before further flight. Accomplishment of the inspection program required by paragraph (i) of this AD terminates the requirements of this paragraph.
This paragraph restates the requirements of paragraph (h) of AD 2013-25-08, with no changes. For airplanes equipped with check valves having P/N CAR400; and for airplanes equipped with check valves having P/N CAR401, except for airplanes on which Airbus Modification 201384 has been embodied during production, or on which Airbus Service Bulletin A330-29-3119 (for Model A330-200, -200F, and -300 series airplanes) or Airbus Service Bulletin A340-29-4091 (for Model A340-200 and -300 series airplanes) has been embodied in service: Within 900 flight hours after January 31, 2014 (the effective date of AD 2013-25-08), inspect the check valves on the blue, green, and yellow hydraulic systems to identify their part numbers, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330-29-3111, Revision 02, dated June 23, 2011 (for Model A330-200, -200F, and -300 series airplanes); or Airbus Mandatory Service Bulletin A340-29-4086, Revision 02, dated June 23, 2011 (for Model A340-200 and -300 series airplanes). Accomplishment of the actions required by this paragraph terminates the requirements specified in paragraphs (g)(1) and (g)(1)(ii) of this AD.
(1) If check valves having P/N CAR401 are installed on all three hydraulic systems: Before further flight, do the inspection program (detailed inspection for red mark presence and alignment integrity of the check valve and manifold, a detailed inspection for traces of seepage or black deposits, and an inspection for proper torque) on yellow and blue high pressure manifolds, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330-29-3111, Revision 02, dated June 23, 2011 (for Model A330-200, -200F, and -300 series airplanes); or Airbus Mandatory Service Bulletin A340-29-4086, Revision 02, dated June 23, 2011 (for Model A340-200 and -300 series airplanes). Accomplishment of the actions required by this paragraph terminates the requirements specified in paragraph (g)(2)(i) of this AD.
(2) If check valves having P/N CAR401 are not installed on all three hydraulic systems, no further action is required by this paragraph until any check valve having P/N CAR400 is replaced with a check valve having P/N CAR401. If any check valve having P/N CAR400 is replaced by a check valve having P/N CAR401: Before further flight after such replacement, do the actions specified in paragraph (h) of this AD, to determine if all three hydraulic systems are equipped with check valves having P/N CAR401. If check valves having P/N CAR401 are installed on all three hydraulic systems: Before further flight, do the actions specified in paragraphs (h)(1) and (i) of this AD.
This paragraph restates the requirements of paragraph (i) of AD 2013-25-08, with no changes. Within 900 flight hours after accomplishment of paragraph (h)(1) of this AD, do the inspection program (detailed inspection for red mark presence and alignment integrity of the check valve and manifold, a detailed inspection for traces of seepage or black deposits, and an inspection for proper torque) on the green, yellow, and blue system check valves, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330-29-3111, Revision 02, dated June 23, 2011 (for Model A330-200, -200F, and -300 series airplanes); or Airbus Mandatory Service Bulletin A340-29-4086, Revision 02, dated June 23, 2011 (for Model A340-200 and -300 series airplanes). Do all applicable corrective actions before further flight. Repeat the inspection program thereafter at intervals not to exceed 900 flight hours. Accomplishment of the actions required by this paragraph terminates the requirements specified in paragraphs (g)(1)(i), (g)(2)(ii), and (g)(2)(iii) of this AD.
This paragraph restates the requirements of paragraph (j) of AD 2013-25-08, with no changes. For airplanes equipped with check valves having P/N CAR401 and on which Airbus Modification 201384 has been embodied during production, or on which Airbus Service Bulletin A330-29-3119 (for Model A330-200, -200F, and -300 series airplanes); or Airbus Service Bulletin A340-29-4091 (for Model A340-200 and -300 series airplanes) has been embodied in service: Within 1,000 flight hours after January 31, 2014 (the effective date of AD 2013-25-08), do a general visual inspection of the green, yellow, and blue high pressure manifolds and check valves having P/N CAR401 for any sign of rotation of the check valve head, and for any signs of hydraulic fluid leakage or seepage (including black deposits), in accordance with the instructions of Airbus Alert Operators Transmission A29L001-12, dated October 11, 2012. Repeat the inspection thereafter at interval not to exceed 900 flight hours.
This paragraph restates the requirements of paragraph (k) of AD 2013-25-08, with no changes. If, during any inspection required by paragraph (j) of this AD, any sign of rotation of the check valve head is found, or any sign of hydraulic fluid leakage or seepage (including black deposits) is found: Before further flight, do all applicable corrective actions, in accordance with the instructions of Airbus Alert Operators Transmission A29L001-12, dated October 11, 2012.
This paragraph restates the provisions of paragraph (l) of AD 2013-25-08, with no changes. Accomplishment of the corrective actions required by this AD does not constitute terminating action for the repetitive inspections required by this AD.
This paragraph restates the requirements of paragraph (m) of AD 2013-25-08, with no changes. As of January 31, 2014 (the effective date of AD 2013-25-08), at each replacement of a check valve with a check valve having P/N CAR401, apply a torque of 141 to 143 newton meters (N.m) (103.98 to 105.45 pounds-foot (lbf.ft)) during installation.
This paragraph restates the provisions of paragraph (n) of AD 2013-25-08, with no changes.
(1) This paragraph provides credit for actions required by paragraph (g)(2)(i) of this AD, if those actions were performed before December 14, 2009 (the effective date of AD 2009-24-09), using the applicable service information specified in paragraphs (n)(1)(i) and (n)(1)(ii) of this AD.
(i) Airbus AOT A330-29A3111, dated September 2, 2009 (for Model A330-200 and -300 series airplanes), which is not incorporated by reference in this AD.
(ii) Airbus AOT A340-29A4086, dated September 2, 2009 (for Model A340-200 and -300 series airplanes), which is not incorporated by reference in this AD.
(2) This paragraph provides credit for actions required by paragraph (h) of this AD, if those actions were performed before January 31, 2014 (the effective date of AD 2013-25-08), using the applicable service information specified in paragraphs (n)(2)(i) through (n)(2)(iv) of this AD.
(i) Airbus AOT A330-29A3111, dated September 2, 2009 (for Model A330-200 and -300 series airplanes), which is not incorporated by reference in this AD.
(ii) Airbus AOT A330-29A3111, Revision 1, dated October 8, 2009 (for Model A330-200 and -300 series airplanes), which is incorporated by reference in this AD.
(iii) Airbus AOT A340-29A4086, dated September 2, 2009 (for Model A340-200 and -300 series airplanes), which is not incorporated by reference in this AD.
(iv) Airbus AOT A340-29A4086, Revision 1, dated October 8, 2009 (for Model A340-200 and -300 series airplanes), which is incorporated by reference in this AD.
This paragraph restates the provisions of paragraph (o) of AD 2013-25-08, with no changes. Although the service information specified in paragraphs (o)(1) through (o)(5) of this AD specifies to submit certain information to the manufacturer, this AD does not include that requirement.
(1) Airbus Alert Operators Transmission A29L001-12, dated October 11, 2012.
(2) Airbus Mandatory Service Bulletin A330-29-3111, Revision 02, dated June 23, 2011.
(3) Airbus Mandatory Service Bulletin A340-29-4086, Revision 02, dated June 23, 2011.
(4) Airbus AOT A330-29A3111, Revision 1, dated October 8, 2009.
(5) Airbus AOT A340-29A4086, Revision 1, dated October 8, 2009.
Within 36 months after the effective date of this AD, modify the green, blue, and yellow high pressure hydraulic manifolds by replacing each check valve having P/N CAR401 with an improved check valve having P/N CAR402, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3125, Revision 03, including Appendixes 01 and 02, dated April 8, 2016; or Airbus Service Bulletin A340-29-4096, Revision 02, including Appendixes 01 and 02, dated April 8, 2016; as applicable.
Modification of an airplane, as required by paragraph (p) of this AD, constitutes terminating action for the repetitive inspections required by this AD.
(1) For an airplane that, as of the effective date of this AD, has a check valve having P/N CAR401 installed, after modification as required by paragraph (p) of this AD, no person may install a check valve having P/N CAR401, on that airplane.
(2) For an airplane that does not have a check valve having P/N CAR401 installed, as of the effective date of this AD, no person may install a check valve having P/N CAR401, on that airplane.
This paragraph provides credit for actions required by paragraph (p) of this AD, if those actions were performed before the effective date of this AD using the applicable service information specified in paragraphs (s)(1) through (s)(5) of this AD, which are not incorporated by reference in this AD.
(1) Airbus Service Bulletin A330-29-3125, dated August 8, 2014.
(2) Airbus Service Bulletin A330-29-3125, Revision 01, including Appendixes 01 and 02, dated July 30, 2015.
(3) Airbus Service Bulletin A330-29-3125, Revision 02, including Appendixes 01 and 02, dated January 21, 2016.
(4) Airbus Service Bulletin A340-29-4096, dated August 8, 2014.
(5) Airbus Service Bulletin A340-29-4096, Revision 01, including Appendixes 01 and 02, dated July 30, 2015.
The following provisions also apply to this AD:
(1)
(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.
(ii) AMOC ANM-116-14-180 R1, dated February 21, 2014, is approved as an AMOC for the corresponding provisions of this AD.
(iii) AMOC ANM-116-14-429, dated September 25, 2014, is not approved as an AMOC for the corresponding provisions of this AD.
(2)
(3)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0009, dated January 16, 2015, for related information. This MCAI may be found in the AD docket on the Internet at
(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (v)(6) and (v)(7) of this AD.
(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.
(3) The following service information was approved for IBR on December 27, 2016.
(i) Airbus Service Bulletin A330-29-3125, Revision 03, including Appendixes 01 and 02, dated April 8, 2016.
(ii) Airbus Service Bulletin A340-29-4096, Revision 02, including Appendixes 01 and 02, dated April 8, 2016.
(4) The following service information was approved for IBR on January 31, 2014 (78 FR 78694, December 27, 2013).
(i) Airbus Alert Operators Transmission A29L001-12, dated October 11, 2012.
(ii) Airbus Mandatory Service Bulletin A330-29-3111, Revision 02, dated June 23, 2011.
(iii) Airbus Mandatory Service Bulletin A340-29-4086, Revision 02, dated June 23, 2011.
(5) The following service information was approved for IBR on December 14, 2009 (74 FR 62208, November 27, 2009).
(i) Airbus Alert Operators Telex A330-29A3111, Revision 1, dated October 8, 2009. Only the first page of this document contains the document number, revision level, and date; no other pages of this document contain this information.
(ii) Airbus Alert Operators Telex A340-29A4086, Revision 1, dated October 8, 2009. Only the first page of this document contains the document number, revision level, and date; no other pages of this document contain this information.
(6) 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
(7) 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.
(8) 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:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, and 702), CL-600-2D15 (Regional Jet Series 705), CL-600-2D24 (Regional Jet Series 900), and CL-600-2E25 (Regional Jet Series 1000) airplanes. This AD was prompted by a determination that wear and possible leakage of the high-pressure seal in the cylinder of the No. 3 hydraulic system reservoir could occur and cause high hydraulic fluid temperature and/or prevent the system from reaching normal operating pressure. This AD requires repetitive operational checks for wear and leakage of the high-pressure seal in the cylinder of the reservoir of the No. 3 hydraulic system, and corrective actions if necessary. We are issuing this AD to address the unsafe condition on these products.
This AD is effective December 27, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 27, 2016.
For service information identified in this final rule, contact Bombardier, Inc., 400 Côte Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone 1-866-538-1247 or direct-dial telephone 1-514-855-2999; fax 514-855-7401; email
You may examine the AD docket on the Internet at
Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7318; fax 516-794-5531.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, and 702), CL-600-2D15 (Regional Jet Series 705), CL-600-2D24 (Regional Jet Series 900), and CL-600-2E25 (Regional Jet Series 1000) airplanes. The NPRM published in the
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2015-27, dated September 14, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, and 702), CL-600-2D15 (Regional Jet Series 705), CL-600-2D24 (Regional Jet Series 900), and CL-600-2E25 (Regional Jet Series 1000) airplanes. The MCAI states:
It was discovered that the high-pressure seal in the cylinder of the No. 3 hydraulic system reservoir with P/N 960450-1 could wear and leak. This can cause high hydraulic fluid temperature and/or prevent the system from reaching normal operating pressure. High hydraulic fluid temperature, in combination with a temperature transducer malfunction, could result in an unannunciated overheat of the hydraulic system that could result in a potential ignition source within the fuel system.
This [Canadian] AD mandates the repetitive operational check of the hydraulic system No. 3 fluid temperature indication as an interim mitigating action.
Required actions include repeating any operational check that fails until the operational check passes. You may examine the MCAI in the AD docket on the Internet at
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.
Bombardier, Inc. Model CL-600-2D15 airplanes are derivatives of the Model CL-600-2D24 and should have been included in paragraph (c)(2) of the proposed AD. Therefore, Model CL-600-2D15 is added to paragraph (c)(2) of this AD. The serial number range specified in paragraph (c)(2) of the proposed AD remains unchanged.
In the SUMMARY and Discussion sections of the NPRM and paragraph (e) of the proposed AD, we specified that the AD was to detect and correct a malfunctioning temperature indication of the No. 3 hydraulic system. However, the operational check is for wear and leakage of the high-pressure seal in the cylinder of the reservoir of the No. 3 hydraulic system, which can result in high hydraulic fluid temperature. We have revised the SUMMARY and Discussion sections of the final rule and paragraph (e) of this AD accordingly.
We reviewed the relevant data and determined that air safety and the public interest require adopting this 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 for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We reviewed Bombardier Service Bulletin 670BA-29-018, Revision A, dated October 13, 2015. The service information describes procedures for performing an operational check for wear and leakage of the high-pressure seal in the cylinder of the reservoir of the No. 3 hydraulic system. 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
We estimate that this AD affects 509 airplanes of U.S. registry.
We also estimate that it takes 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 $43,265, or $85 per airplane.
We have received no definitive data that enables us to provide a cost estimate for the on-condition actions specified in this AD.
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.
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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective December 27, 2016.
None.
This AD applies to the Bombardier, Inc. airplanes identified in paragraph (c)(1), (c)(2), or (c)(3) of this AD, certificated in any category, equipped with No. 3 hydraulic system reservoir having part number 960450-1.
(1) Model CL-600-2C10 (Regional Jet Series 700, 701, and 702) airplanes, having serial numbers 10002 through 10999 inclusive.
(2) Model CL-600-2D15 (Regional Jet Series 705) and CL-600-2D24 (Regional Jet Series 900) airplanes, having serial numbers 15001 through 15990 inclusive.
(3) Model CL-600-2E25 (Regional Jet Series 1000) airplanes, having serial numbers 19001 through 19990 inclusive.
Air Transport Association (ATA) of America Code 29, Hydraulic power.
This AD was prompted by a determination that wear and possible leakage of the high-pressure seal in the cylinder of the No. 3 hydraulic system reservoir could occur and cause high hydraulic fluid temperature and/or prevent the system from reaching normal operating pressure. We are issuing this AD to detect and correct wear and leakage of the high-pressure seal in the cylinder of the reservoir of the No. 3 hydraulic system, which can result in high hydraulic fluid temperature. High hydraulic fluid temperature combined with a temperature transducer malfunction could result in un-annunciated overheating of the hydraulic system and consequent ignition sources inside the fuel tank, which, combined with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 660 flight hours or 4 months after the effective date of this AD, whichever occurs first: Perform an operational check for wear and leakage of the high-pressure seal in the cylinder of the reservoir of the No. 3 hydraulic system, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-29-018, Revision A, dated October 13, 2015. If the operational check fails, before further flight, do applicable corrective actions and repeat the operational check and applicable corrective actions until the operational check passes. Repeat the operational check thereafter at intervals not to exceed 660 flight hours or 4 months, whichever occurs first.
This paragraph provides credit for the applicable actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Bombardier Service Bulletin 670BA-29-018, dated June 25, 2015.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2015-27, dated September 14, 2015, for related information. This MCAI may be found in the AD docket on the Internet at
(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (k)(3) and (k)(4) of this AD.
(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) Bombardier Service Bulletin 670BA-29-018, Revision A, dated October 13, 2015.
(ii) Reserved.
(3) For service information identified in this AD, contact Bombardier, Inc., 400 Côte Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone 1 866 538 1247 or direct-dial telephone 1 514 855 2999; fax 514 855-7401; email
(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:
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for certain BRP-Powertrain GmbH & Co KG Rotax 912 F2, 912 F3, 912 F4, 912 S2, 912 S3, 912 S4, 914 F2, 914 F3, and 914 F4 reciprocating engines. This AD requires replacement of any affected carburetor float with a float that is eligible for installation. This AD was prompted by a report of a quality escape in the manufacturing of the affected floats. We are issuing this AD to prevent failure of the carburetor float, failure of the engine, in-flight shutdown, and loss of the airplane.
This AD becomes effective December 7, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 7, 2016.
We must receive comments on this AD by January 6, 2017.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact BRP-Powertrain GmbH & Co KG, Rotaxstrasse 1, A-4623 Gunskirchen, Austria; phone: +43 7246 6010; fax: +43 7246 601 9130; email:
You may examine the AD docket on the Internet at
Michael Richardson-Bach, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7747; fax: 781-238-7199; email:
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2016-0144, dated July 19, 2016 (corrected July 25, 2016) (referred to hereinafter as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Due to a quality escape in the manufacturing process of certain floats, Part Number (P/N) 861185, a partial separation of the float outer skin may occur during engine operations. Separated particles could lead to a restriction of the jets in the carburetor, possibly reducing or blocking the fuel supply to the affected cylinder.
This condition, if not detected and corrected, could lead to in-flight engine shutdown and forced landing, possibly resulting in damage to the aeroplane and injury to the occupants.
You may obtain further information by examining the MCAI in the AD docket on the Internet at
BRP-Powertrain GmbH & Co KG has issued Alert Service Bulletin ASB-912-069R1/ASB-914-051R1 (one document), Revision 1, dated July 22, 2016. The service information describes procedures for removal and replacement of the carburetor float. 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
This product has been approved by the aviation authority of Austria, and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This AD requires removal and replacement of the affected carburetor float.
No domestic operators use this product. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.
We estimate that this AD affects 0 engines installed on aircraft of U.S. registry. We also estimate that it will take about 4 hours per engine to search maintenance records, disassemble the carburetor, and replace the float. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $0.
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.
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 to the extent that it justifies making a regulatory distinction, 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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective December 7, 2016.
None.
This AD applies to BRP-Powertrain GmbH & Co KG Rotax model 912 F2, 912 F3, 912 F4, 912 S2, 912 S3, and 912 S4 engines, and Rotax 914 F2, 914 F3, and 914 F4 engines with:
(1) Engine serial numbers (S/Ns) listed in Planning Information, Paragraph 1, Criterion A, of BRP-Powertrain GmbH & Co KG Alert Service Bulletin (ASB) ASB-912-069R1/ASB-914-051R1 (one document), Revision 1, dated July 22, 2016.
(2) Carburetor part numbers (P/Ns) and S/Ns listed in Planning Information, Paragraph 1, Criterion B, of BRP-Powertrain GmbH & Co KG ASB ASB-912-069R1/ASB-914-051R1 (one document), Revision 1, dated July 22, 2016; or
(3) Carburetor floats, P/N 861185, that do not have 3 dots molded on the surface, and installed after May 9, 2016.
This AD was prompted by a report of a quality escape in the manufacturing of the affected carburetor floats. We are issuing this AD to prevent failure of the carburetor float, failure of the engine, in-flight shutdown, and loss of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 25 flight hours (FHs) or 30 days after the effective date of this AD, replace any affected carburetor float with a float that is eligible for installation in accordance with the Accomplishment Instructions, Paragraph 3, of BRP-Powertrain GmbH & Co KG Rotax ASB ASB-912-069R1/ASB-914-051R1 (one document), Revision 1, dated July 22, 2016.
(2) After the effective date of this AD, do not install on any engine a carburetor float, P/N 861185, delivered between May 8, 2016, and July 17, 2016, that does not have 3 dots molded into the surface. If the delivery date is not documented, do not install the part.
The Manager, Engine Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to:
(1) For more information about this AD, contact Michael Richardson-Bach, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7747; fax: 781-238-7199; email:
(2) Refer to MCAI European Aviation Safety Agency AD 2016-0144, dated July 19, 2016 (corrected July 25, 2016), for more information. You may examine the MCAI in the AD docket on the Internet at
(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) BRP-Powertrain GmbH & Co KG Alert Service Bulletin ASB-912-069R1/ASB-914-051R1 (one document), Revision 1, dated July 22, 2016.
(ii) Reserved.
(3) For BRP-Powertrain GmbH & Co KG service information identified in this AD, contact BRP-Powertrain GmbH & Co KG, Rotaxstrasse 1, A-4623 Gunskirchen, Austria; phone: +43 7246 6010; fax: +43 7246 601 9130; email:
(4) You may view this service information at FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7125.
(5) You may view this service information 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:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. This AD was prompted by an evaluation by the design approval holder (DAH) indicating that lap splices for certain stringers are subject to widespread fatigue damage (WFD). This AD requires repetitive inspections for cracking in the lower fastener row of the lap splices of certain stringers, and repair if necessary. We are issuing this AD to address the unsafe condition on these products.
This AD is effective December 27, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 27, 2016.
For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740; telephone 562-797-1717; Internet
You may examine the AD docket on the Internet at
Gaetano Settineri, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6577; fax: 425-917-6590; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.
Boeing and a commenter, Jordan Ibsen, supported the content of the NPRM.
Aviation Partners Boeing stated that accomplishing the supplemental type certificate (STC) ST00830SE does not affect compliance with the actions specified in the NPRM.
We agree with the commenter. We have redesignated paragraph (c) of the NPRM as (c)(1) and added a new paragraph (c)(2) to this final rule to state that installation of STC ST00830SE does not affect the ability to accomplish the actions required by this final rule. Therefore, for airplanes on which STC ST00830SE 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.
The European Aviation Safety Agency (EASA) noted that Boeing Alert Service Bulletin 737-53A1352, dated October 2, 2015, specifies that the existing 737-600/700/800/900 Maintenance Planning Document (MPD), Section 9, Airworthiness Limitation Instruction (ALI) Inspection Program, is not sufficient to prevent WFD in the S-14L and S-14R lap splice, lower fastener rows, between station (STA) 360-540 and STA 727-887, as the airplane ages. EASA added that this service information specifies inspections at principal structural elements (PSEs) 53-30-04-6, 53-30-04-6a, 53-60-04-6 and 53-60-04-6a before accumulating 54,000 total flight cycles. However, EASA noted that 737-600/700/800/900 MPD, Section 9, C626AOO 1-CMR Table 9-2, Revision August 2012, requires doing the inspections before accumulating 50,000 flight cycles; which contradicts the initial statement that the ALI inspection program is not sufficient to preclude WFD. EASA concluded that if the current ALI is not sufficient to preclude WFD, then the 50,000 flight cycles should be reduced, rather than increased to 54,000 flight cycles.
We infer the commenter is requesting that we reduce the 54,000 flight-cycle compliance time specified in Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016 (which is the appropriate source of service information for accomplishing the required actions in this AD). We do not agree with the request to reduce the compliance time. However, we do agree to clarify the WFD analysis. Boeing uses a different methodology than the standard damage tolerance analysis for evaluating structure that is susceptible to WFD. This methodology can sometimes produce a longer initial inspection threshold than the baseline maintenance program, but requires more frequent repetitive inspections, as in the case of the S-14L and S-14R lap splices. Although, for certain airplanes, the initial WFD threshold specified in Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016, is 4,000 flight cycles more than the ALI threshold; the repetitive inspection interval is reduced by 6,000 flight cycles.
Operators are still required to accomplish the ALI inspections in accordance with 14 CFR 91.403(c). However, if the inspections specified in Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016, and the ALI inspections overlap (same location, inspection detail, and technique) then the more restrictive of the two programs satisfies both requirements. Since a specific revision of the ALI inspections are required by AD 2013-19-23, Amendment 39-17605 (78 FR 61173, October 3, 2013), Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016, contains an approved AMOC to AD 2013-19-23, for certain PSEs, after the initial inspections in that service bulletin are accomplished. We have not changed this AD in this regard.
Southwest Airlines (SWA) asked for clarification that the Boeing ODA identified in paragraph (i)(3) of the proposed AD can provide an AMOC for any “repair, modification, or alteration” that includes the authority to approve existing repairs in the inspection area that inhibit accomplishment of the AD requirements as terminating action to paragraph (g) of the proposed AD. SWA also asked if the ODA has the authority to provide alternative inspection procedures for repaired areas where the inspection in paragraph (g) of the proposed AD cannot be accomplished. Additionally, SWA asked that we clarify that the Boeing ODA identified in paragraph (i)(3) of the proposed AD is able to issue an AMOC for an existing repair at the S-14 lap joint (where the location of the repair inhibits accomplishing the initial inspection), provided the repair was approved by any FAA designation authority and there are a minimum of three fastener rows above and below the lap joint. SWA stated that neither Boeing Alert Service Bulletin 737-53A1352, dated October 2, 2015, nor the NPRM clearly state how to address existing repairs that prevent accomplishment of the inspections specified in paragraph (g) of the proposed AD.
We agree with the commenter that clarification of the extent of the authority of the Boeing ODA is necessary. The Boeing ODA includes the authority to evaluate existing repairs and provide alternative inspection programs in the repaired area, and includes approval of alternative inspections as AMOCs if accomplishment of the inspections required by paragraph (g) of this AD is inhibited. We have not changed this AD in this regard.
We infer that SWA is asking if the Boeing ODA can issue a global AMOC for the referenced repair. The Boeing ODA does not have that authority. We have not received any information from Boeing that defines such a repair that would be considered for a global AMOC. If Boeing provides supporting data, we will evaluate the data to determine if that repair and any associated inspections provide an acceptable level of safety. We have not changed this AD in this regard.
We have reviewed Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016, and there are no substantial changes. Therefore, we have included Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016, as the appropriate source of service information for accomplishing in the actions required by paragraph (g) of this AD. We have also added a new paragraph (h) to this AD to provide credit for actions done prior to the effective date of this AD using Boeing Alert Service Bulletin 737-53A1352, dated October 2, 2015. We have redesignated subsequent paragraphs accordingly.
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 for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We reviewed Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016. The service information describes procedures for low frequency eddy current inspections and repair for cracking in the lower fastener row of the S-14L and S-14R lap splices. 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
We estimate that this AD affects 1,513 airplanes of U.S. registry. We estimate the following costs to comply with this AD:
We have received no definitive data that enables us to provide cost estimates for the on-condition actions specified in this AD.
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.
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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective December 27, 2016.
None.
(1) This AD applies to all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes, certificated in any category.
(2) Installation of Supplemental Type Certificate (STC) ST00830SE (
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by an evaluation by the design approval holder (DAH) indicating that the stringer (S)-14L and S-14R lap splices are subject to widespread fatigue damage (WFD). We are issuing this AD to detect and correct widespread cracking in the S-14L and S-14R lap splices that could rapidly link up and result in possible rapid decompression and reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
At the applicable compliance time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016, do a low frequency eddy current inspection for cracking of the lower fastener row of S-14L and S-14R lap splices, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016. Repeat the inspection thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016. If any cracking is found, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (i) of this AD.
This paragraph provides credit for the actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Boeing Alert Service Bulletin 737-53A1352, dated October 2, 2015.
(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 (j) of this AD. Information may be emailed to:
(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) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (i)(4)(i) and (i)(4)(ii) of this AD apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled 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 RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
For more information about this AD, contact Gaetano Settineri, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6577; fax: 425-917-6590; email:
(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) Boeing Alert Service Bulletin 737-53A1352, Revision 1, dated March 10, 2016.
(ii) Reserved.
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740; telephone 562-797-1717; Internet
(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:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for various restricted category helicopters. This AD requires cleaning and visually inspecting certain main rotor (M/R) blades and, depending on the outcome of the inspections, repairing or replacing the M/R blades. This AD was prompted by a report of an M/R blade with multiple fatigue cracks around the blade retention bolt hole. The actions are intended to detect a crack in the M/R blade, and prevent failure of the M/R blade and subsequent loss of helicopter control.
This AD is effective December 27, 2016.
For service information identified in this final rule, contact Bell Helicopter Textron, Inc., P.O. Box 482, Fort Worth, TX 76101; telephone (817) 280-3391; fax (817) 280-6466; or at
You may examine the AD docket on the Internet at
Charles Harrison, Project Manager, Fort Worth Aircraft Certification Office, 10101 Hillwood Pkwy., Fort Worth, Texas 76177; telephone 817-222-5140; email
On April 11, 2016, at 81 FR 21288, the
These actions are intended to detect a crack in an M/R blade, and prevent failure of the M/R blade, and subsequent loss of helicopter control.
We gave the public the opportunity to participate in developing this AD, but we received no comments on the NPRM (81 FR 21288, April 11, 2016).
We have reviewed the relevant information and determined that an unsafe condition exists and is likely to exist or develop on other products of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.
Bell Helicopter issued Alert Service Bulletin (ASB) No. UH-1H-13-09, dated January 14, 2013, for the Model UH-1H helicopter. ASB No. UH-1H-13-09 specifies a one-time visual inspection, within 10 hours time-in-service (TIS), of the lower grip pad and upper and lower grip plates for cracks, edge voids, and loose or damaged adhesive squeeze-out. ASB No. UH-1H-13-09 also specifies a repetitive and more detailed visual inspection, daily and at every 150 hours TIS, of the lower grip pad, upper and lower grip plates, and all upper and the lower doublers for cracks, corrosion, edge voids, and loose or damaged adhesive squeeze-out.
Bell Helicopter Textron also issued ASB No. 204-75-1 for Model 204B helicopters and ASB No. 205-75-5 for Model 205A-1 helicopters, both Revision C and both dated April 25, 1979. ASB No. 204-75-1 and ASB No. 205-75-5 call for visually inspecting the M/R blades during each daily inspection and repetitively washing the blades and applying WD-40. ASB No. 204-75-1 and ASB No. 205-75-5 also provide instructions for repetitively inspecting the blades every 1,000 hours of operation or every 12 months, whichever occurs first, or within 150 hours or 30 days, whichever occurs first, if the blades have more 1,000 hours of operation or have been in service more than 12 months. While ASB No. 204-75-1 and ASB No. 205-75-5 do not apply to the helicopters that are the subject of this AD, they do apply to the affected M/R blades.
ASB No. UH-1H-13-09 specifies a one-time inspection and then a second repetitive inspection daily and at every 150 hours TIS, and ASB No. 204-75-1 and ASB 205-75-5 call for visually inspecting the M/R blades daily and every 1,000 hours TIS or 12 months, whichever occurs first. This AD requires all inspections at intervals not to exceed 25 hours TIS or two weeks, whichever occurs first. This AD contains more detailed inspection requirements and a more specific inspection area than the instructions in ASB No. UH-1H-13-09. Lastly, ASB No. UH-1H-13-09 applies to Model UH-1H helicopters with M/R blade P/N 204-011-250-113, ASB No. 204-75-1 applies to Model 204B helicopters with M/R blade P/N 204-011-250 (all dash numbers), and ASB No. 205-75-5 applies to Model 205A-1 helicopters with M/R blade P/N 204-011-250 (all dash numbers). This AD applies to Model TH-1F, UH-1B, UH-1F, UH-1H, and UH-1P helicopters with M/R blade P/N 204-011-250-005 or 204-011-250-113.
We estimate that this AD affects 607 helicopters of U.S. Registry and that labor costs average $85 a work-hour. Based on these estimates, we expect the following costs:
• Cleaning and performing all inspections of a set of M/R blades (2 per helicopter) requires a total of
• Replacing an M/R blade requires 12 work hours while parts cost $90,656, for a total cost of $91,676 per blade.
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.
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 to the extent that it justifies making a regulatory distinction; and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities
We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Model TH-1F, UH-1B, UH-1F, UH-1H, and UH-1P helicopters with a main rotor (M/R) blade, part number 204-011-250-005 or 204-011-250-113, installed.
This AD defines the unsafe condition as a crack in an M/R blade, which could result in failure of the M/R blade and subsequent loss of helicopter control.
This AD becomes effective December 27, 2016.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
(1) Within 25 hours time-in-service (TIS) or 2 weeks, whichever occurs first, and thereafter at intervals not to exceed 25 hours TIS or 2 weeks, whichever occurs first, clean the upper and lower exposed surfaces of each M/R blade from an area starting at the butt end of the blade to three inches outboard of the doublers. Using a 3X or higher power magnifying glass and a light, inspect as follows:
(i) Visually inspect the exposed area of the lower grip pad and upper and lower grip plates of each M/R blade for a crack and any corrosion.
(ii) On the upper and lower exposed surfaces of each M/R blade from blade stations 24.5 to 35 for the entire chord width, visually inspect each layered doubler and blade skin for a crack and any corrosion. Pay particular attention for any cracking in a doubler or skin near or at the same blade station as the blade retention bolt hole (blade station 28).
(iii) Visually inspect the exposed areas of each bond line at the edges of the lower grip pad, upper and lower grip plates, and each layered doubler (bond lines) on the upper and lower surfaces of each M/R blade for the entire length and chord width for an edge void, any corrosion, loose or damaged adhesive squeeze-out, and an edge delamination. Pay particular attention to any crack in the paint finish that follows the outline of a grip pad, grip plate, or doubler, and to any loose or damaged adhesive squeeze-out, as these may be the indication of an edge void.
(2) If there is a crack, any corrosion, an edge void, loose or damaged adhesive squeeze-out, or an edge delamination during any inspection in paragraph (e)(1) of this AD, before further flight, do the following:
(i) If there is a crack in a grip pad or any grip plate or doubler, replace the M/R blade with an airworthy M/R blade.
(ii) If there is a crack in the M/R blade skin that is within maximum repair damage limits, repair the M/R blade. If the crack exceeds maximum repair damage limits, replace the M/R blade with an airworthy M/R blade.
(iii) If there is any corrosion within maximum repair damage limits, repair the M/R blade. If the corrosion exceeds maximum repair damage limits, replace the M/R blade with an airworthy M/R blade.
(iv) If there is an edge void in the grip pad or in a grip plate or doubler, determine the length and depth using a feeler gauge. Repair the M/R blade if the edge void is within maximum repair damage limits, or replace the M/R blade with an airworthy M/R blade.
(v) If there is an edge void in a grip plate or doubler near the outboard tip, tap inspect the affected area to determine the size and shape of the void. Repair the M/R blade if the edge void is within maximum repair damage limits, or replace the M/R blade with an airworthy M/R blade.
(vi) If there is any loose or damaged adhesive squeeze-out along any of the bond lines, trim or scrape away the adhesive without damaging the adjacent surfaces or parent material of the M/R blade. Determine if there is an edge void or any corrosion by lightly sanding the trimmed area smooth using 280 or finer grit paper. If there is no edge void or corrosion, refinish the sanded area.
(vii) If there is an edge delamination along any of the bond lines or a crack in the paint finish, determine if there is an edge void or a crack in the grip pad, grip plate, doubler, or skin by removing paint from the affected area by lightly sanding in a span-wise direction using 180-220 grit paper. If there are no edge voids and no cracks, refinish the sanded area.
(viii) If any parent material is removed during any sanding or trimming in paragraphs (e)(2)(vi) or (e)(2)(vii) of this AD, repair the M/R blade if the damage is within maximum repair damage limits, or replace the M/R blade with an airworthy M/R blade.
Special flight permits are prohibited.
(1) The Manager, Rotorcraft Certification Office, FAA, may approve AMOCs for this AD. Send your proposal to: Charles Harrison, Project Manager, Fort Worth Aircraft Certification Office, 10101 Hillwood Pkwy., Fort Worth, Texas 76177; telephone 817-222-5140; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
Bell Helicopter Alert Service Bulletin (ASB) No. UH-1H-13-09, dated January 14, 2013, and Bell Helicopter Textron ASB No. 204-75-1 and ASB 205-75-5, both Revision C and both dated April 25, 1979, which are not incorporated by reference, contain additional information about the subject of this final rule. For service information identified in this final rule, contact Bell Helicopter Textron, Inc., P.O. Box 482, Fort Worth, TX 76101; telephone (817) 280-3391; fax (817) 280-6466; or at
Joint Aircraft Service Component (JASC) Code: 6210, Main Rotor Blades.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain
This AD is effective December 27, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 27, 2016.
For service information identified in this final rule, contact Gulfstream Aerospace Corporation, Technical Publications Dept., P.O. Box 2206, Savannah, GA 31402-2206; telephone: 800-810-4853; fax: 912-965-3520; email:
You may examine the AD docket on the Internet at
Ronald Wissing, Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta Aircraft Certification Office (ACO), 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5552; fax: 404-474-5606; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Gulfstream Aerospace Corporation Model GV and GV-SP airplanes. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.
Gulfstream requested that we revise the
We agree with the request. We have revised the
Gulfstream requested that we revise the FAA's Determination section of the NPRM, which states that the unsafe condition is likely to exist or develop “in other products of the same type design.” Gulfstream requested that we remove the quoted language, and pointed out that they believe the statement is irrelevant to the unsafe condition.
We disagree with the commenter's request. Our phrasing is intentional. The finding that the condition is likely to exist or develop in other products of the same type design is necessary to ensure that the AD falls within the scope of 14 CFR part 39 (“Airworthiness Directives”.) (Specifically, see 14 CFR 39.5.) Additionally, the FAA's Determination section of the NPRM is not restated in this final rule. We have not changed this AD regarding this issue.
Gulfstream requested clarification regarding which “operator maintenance documents” require revision. Gulfstream did not provide any justification for its request.
We agree that clarification is necessary. Regardless of the maintenance program that an operator uses, this AD requires revising the applicable maintenance or inspection program documentation. The owner or operator is responsible for maintaining its fleet in an airworthy condition, including compliance with 14 CFR part 39. This final rule has not been changed in this regard.
Gulfstream requested that we revise the “Differences Between This Proposed AD and the Service Information” section of the NPRM. Gulfstream pointed out that they believe the applicability is contradictory to Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015. Gulfstream also mentioned that it does not believe an operator would be able to log compliance with the proposed AD.
We agree to clarify. The applicability of this AD differs from the effectivity of Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015, which excludes airplanes on which certain supplemental type certificates (STCs) have been accomplished. Airplanes on which those STCs have been accomplished are included in the applicability of this AD because those airplanes could have inspections and limits that are applicable. If it is determined that an airplane with a listed STC cannot accomplish the requirements of this AD, the operator may request an alternative method of compliance (AMOC) in accordance with paragraph (i) of this AD.
Also, we do not agree with the statement in Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015, indicating that airplanes with specific STCs installed should be excluded from the effectivity of Gulfstream Document GV-GER-9973, Summary of Changes to
Gulfstream requested that we revise Note 1 to paragraph (g) of the proposed AD. Gulfstream specifically requested adding language that would specify “or later FAA approved revision” to clarify operator compliance with the proposed AD.
We do not agree to revise Note 1 to paragraph (g) of this AD to allow use of “later FAA-approved revisions.” Note 1 to paragraph (g) of this AD specifies the AMM revisions specifically identified in Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015. This AD does not require any actions to be done in accordance with the AMM revisions specified in Note 1 to paragraph (g) of this AD. Additionally, we may not refer to any document that does not yet exist. However, we have revised Note 1 to paragraph (g) of this AD to clarify the intent of that note.
Gulfstream requested that we verify the contact information used in the
We have verified the contact information used in the
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 for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We reviewed Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015. The service information describes inspection requirements and life limits that address fatigue cracking of the PSEs. 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
We estimate that this AD affects 392 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
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.
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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective December 27, 2016.
None.
This AD applies to Gulfstream Aerospace Corporation Model GV airplanes, certificated in any category, serial numbers 501 through 693 inclusive and serial number 699; and Model GV-SP airplanes, certificated in any category, serial numbers 5001 through 5433 inclusive.
Air Transport Association (ATA) of America Code 32, Landing Gear; 53, Fuselage; 54, Nacelles/Pylons; 55, Stabilizers; and 57, Wings.
This AD was prompted by a new revision to the Airworthiness Limitations Section (ALS) of the Aircraft Maintenance Manual (AMM), Chapter 05-10-10, based on fatigue and damage tolerance testing, and updated analysis. We are issuing this AD to ensure fatigue cracking of principal structural elements (PSEs) is detected and corrected; such fatigue cracking could result in reduced structural integrity of the PSEs and critical components.
Comply with this AD within the compliance times specified, unless already done.
Within 12 months after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the airworthiness limitations specified in Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015. The initial compliance times for the tasks identified in Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015, are at the applicable times specified in Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015, or within twelve months after the effective date of this AD, whichever occurs later.
Note 1 to paragraph (g) of this AD: Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015, specifies the following AMM revisions as additional sources of guidance for the actions required by paragraph (g) of this AD. For Model GV airplanes, AMM Revision 43, dated February 15, 2015; and for Model GV-SP airplanes, G500 or G550 AMM Revision 24, dated February 15, 2015, as applicable.
After the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
(1) The Manager, Atlanta 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 (j) of this AD.
(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.
For more information about this AD, contact Ronald Wissing, Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta ACO, 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5552; fax: 404-474-5606; email:
(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) Gulfstream Document GV-GER-9973, Summary of Changes to the GV Series Airworthiness Limitations, Revision C, dated January 8, 2015. The revision level and date of this document are not specified on the title page of the document.
(ii) Reserved.
(3) For Gulfstream Aerospace Corporation service information identified in this AD, contact Gulfstream Aerospace Corporation, Technical Publications Dept., P.O. Box 2206, Savannah, GA 31402-2206; telephone: 800-810-4853; fax: 912-965-3520; email:
(4) You may view this service information at FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA 98057-3356. 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:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 787-8 airplanes. This AD was prompted by a report that the grounding jumpers between the environmental control system (ECS) bracket and the current return network (CRN) straps near certain passenger entry doors were not bonded correctly during manufacturing. This AD requires changing the configuration of the grounding jumpers connecting the ECS brackets and CRN straps; measuring the bond resistance; and doing related investigative and corrective actions if necessary. We are issuing this AD to address the unsafe condition on these products.
This AD is effective December 27, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 27, 2016.
For service information identified in this final rule, 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
You may examine the AD docket on the Internet at
Brendan Shanley, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6492; fax: 425-917-6590; email:
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 787-8 airplanes. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.
Boeing stated that it concurs with the content of the NPRM. United Airlines (UAL) stated that the 12-month compliance time is a safe and reasonable timeframe.
All Nippon Airways and UAL requested that we revise the NPRM to reference Boeing Service Bulletin B787-81205-SB530025-00, Issue 002, dated June 2, 2016 (“B787-81205-SB530025-00 Issue 002”), and give credit for actions accomplished using Boeing Service Bulletin B787-81205-SB530025-00, Issue 001, dated July 17, 2014 (“B787-81205-SB530025-00 Issue 001”).
We agree with the commenters' requests. B787-81205-SB530025-00 Issue 002 clarifies instructions and specifies the category of fay seal application. No additional work is required by B787-81205-SB530025-00 Issue 002. B787-81205-SB530025-00 Issue 002 has steps that are labeled as Required for Compliance (RC).
We have revised paragraphs (c) and (g) of this AD to reference B787-81205-SB530025-00 Issue 002, and added new paragraph (h) of this AD to provide credit for actions accomplished prior to the effective date of this AD using B787-81205-SB530025-00 Issue 001. We have redesignated subsequent paragraphs accordingly. We have added new paragraph (i)(4) of this AD to address the steps marked RC in B787-81205-SB530025-00 Issue 002.
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 for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We reviewed B787-81205-SB530025-00 Issue 002. The service information describes procedures for changing the configuration of the grounding jumpers connecting the ECS brackets and CRN straps; measuring the bond resistance; and related investigative and corrective actions 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
We estimate that this AD affects 6 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.
According to the manufacturer, some of the costs of this 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.
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.
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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective December 27, 2016.
None.
This AD applies to The Boeing Company Model 787-8 airplanes, certificated in any category, as identified in Boeing Service Bulletin B787-81205-SB530025-00, Issue 002, dated June 2, 2016 (“B787-81205-SB530025-00 Issue 002”).
Air Transport Association (ATA) of America Code 53; Fuselage.
This AD was prompted by a report that the grounding jumpers between the environmental control system (ECS) bracket and the current return network (CRN) straps near passenger 1 left and 1 right entry doors were not bonded correctly during manufacturing. We are issuing this AD to prevent an incorrectly bonded jumper between the ECS bracket and the CRN strap, which does not provide proper grounding to the door frames at doors 1 left and 1 right. If a fault occurs, an electrical shock hazard can exist and could result in serious or fatal injury to passengers and flight crew.
Comply with this AD within the compliance times specified, unless already done.
Within 12 months after the effective date of this AD: Change the configuration of the grounding jumpers connecting the ECS brackets and CRN straps, including measuring the bond resistance and doing all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of B787-81205-SB530025-00 Issue 002. Do all applicable related investigative and corrective actions before further flight.
This paragraph provides credit for the actions specified in paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Boeing Service Bulletin B787-81205-SB530025-00, Issue 001, dated July 17, 2014.
(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 (j) of this AD. Information may be emailed to:
(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) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (i)(4)(i) and (i)(4)(ii) of this AD apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled 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 RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
For more information about this AD, contact Brendan Shanley, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6492; fax: 425-917-6590; email:
(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) Boeing Service Bulletin B787-81205-SB530025-00, Issue 002, dated June 2, 2016.
(ii) Reserved.
(3) For Boeing 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
(4) You may view this service information at 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:
Federal Aviation Administration (FAA), DOT.
Final rule; technical amendment.
This action amends Class D and Class E airspace at Savannah, GA, by adjusting the geographic coordinates of Hunter Army Airfield (AAF), and updating the name of Savannah/Hilton Head International Airport. The boundaries and operating requirements of these airports remain the same.
Effective 0901 UTC, January 5, 2017. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
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 amends Class D and Class E airspace in the Savannah, GA, area.
This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by adjusting the geographic coordinates of Hunter Army Airfield, and recognizing the name change of Savannah/Hilton Head International Airport (formerly Savannah International Airport) to be in concert with the FAA's aeronautical database.
This is an administrative change and does not affect the boundaries, or operating requirements of the airspace, therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.
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. Therefore, this regulation: (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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to and including 2,500 feet MSL within a 4.5-mile radius of Hunter AAF; excluding that portion of the overlying Savannah, GA, Class C airspace area and that airspace north of lat. 32°02′30″ N. This Class D airspace 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 Chart Supplement.
Within a 5-mile radius of Savannah/Hilton Head International Airport and within a 4.5-mile radius of Hunter AAF. This Class E 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 Chart Supplement.
That airspace extending upward from 700 feet above the surface within a 10-mile radius of Savannah/Hilton Head International Airport and within a 7-mile radius of Hunter AAF.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective November 22, 2016. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of November 22, 2016.
Availability of matters incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001.
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at
Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd. Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part § 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.
The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.
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. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a
Air traffic control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective November 22, 2016. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of November 22, 2016.
Availability of matters incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001.
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at
Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd. Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part § 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.
The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.
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. 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
Rescinded: On October 26, 2016 (81 FR 74289), the FAA published an Amendment in Docket No. 31098, Amdt No. 3715 to Part 97 of the Federal Aviation Regulations under section 97.31. The following entry for Midland, TX, effective November 10, 2016, is hereby rescinded in its entirety:
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA or we) is amending the food additive regulations to no longer provide for the use of two specific perfluoroalkyl containing substances as oil and water repellents for paper and paperboard for use in contact with aqueous and fatty foods because these uses have been abandoned. This action is in response to a petition filed by Keller and Heckman LLP on behalf of 3M Corporation.
This rule is effective November 22, 2016. See section VIII for further information on the filing of objections. Submit either electronic or written objections and requests for a hearing by December 22, 2016.
You may submit objections and requests for a hearing as follows.
Submit electronic objections in the following way:
•
• If you want to submit an objection with confidential information that you do not wish to be made available to the public, submit the objection as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper objections submitted to the Division of Dockets Management, FDA will post your objection, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
•
Vanee Komolprasert, Center for Food Safety and Applied Nutrition (HFS-275), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740-3835, 240-402-1217.
In a document published in the
(1) Ammonium bis (
(2) Perfluoroalkyl acrylate copolymer (CAS Reg. No. 92265-81-1) containing 35 to 40 weight percent fluorine, produced by the copolymerization of ethanaminium,
In response to food additive petitions submitted by the Petitioner (33 FR 14544, September 27, 1968; 35 FR 14840, September 24, 1970; 37 FR 9762, May 17, 1972; and 52 FR 3603, February 5, 1987), FDA authorized certain uses of these two substances as food additives under § 176.170.
Section 409(i) of the Federal, Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 348(i)) states that we may by regulation establish the procedure for amending or repealing a food additive regulation, and that this procedure shall conform to the procedure provided in section 409 for the promulgation of such regulations. FDA's regulations specific to the administrative actions for food additives provide that the Commissioner, on his own initiative or on the petition of any interested person, may propose the issuance of a regulation amending or repealing a regulation pertaining to a food additive (§ 171.130(a) (21 CFR 171.130(a))). The regulations further provide that any such petition must include an assertion of facts, supported by data, showing that new information exists with respect to the food additive or that new uses have been developed or old uses abandoned, that new data are available as to toxicity of the chemical, or that experience with the existing regulation or exemption may justify its amendment or appeal. New data must be furnished in the form specified in 21 CFR 171.1 and 171.100 for submitting petitions (§ 171.130(b)). Under these regulations, a petitioner may propose that we amend a food additive regulation if the petitioner can demonstrate that there are “old uses abandoned” for the relevant food additive. Such abandonment must be complete and permanent for any intended uses in the U.S. market. While section 409 of the FD&C Act and § 171.130 also provide for amending or revoking a food additive regulation based on safety, an amendment or revocation based on abandonment is not based on safety of the food additive. Instead, the amendment or revocation is based on the fact that regulatory authorization is no longer necessary because the use of the food additive has been permanently and completely abandoned.
Abandonment may be based on the abandonment of certain authorized food additive uses for a substance (
The petition submitted on behalf of 3M Corporation includes the following information to support the claim that the uses of the two substances are no longer being introduced into interstate commerce. The Petitioner provides a statement that the Petitioner does not currently manufacture the two substances for food contact use in the United States, and that to the best of the Petitioner's knowledge, the Petitioner was the sole and exclusive domestic and international manufacturer of the two substances for the abandoned uses. In addition, the Petitioner submitted information on its May 2000 voluntary agreement with the U.S. Environmental Protection Agency to phase out production of perfluorooctane sulfonate (PFOS); which is used to produce the two substances (
We provided 60 days for comments on the filing notice. We received two comments from an individual and a consumer group. Both comments raised two issues, which are discussed in the paragraphs that follow. For ease of reading, we preface each comment discussion with a numbered “Comment,” and each response with “Response.”
(Comment 1) One comment asked why we are amending the regulations if the substances are no longer in use.
(Response) FDA is responding to an FAP, as required under section 409 of the FD&C Act. Amending these food additive regulations addresses the FAP under the process set forth in the FD&C Act. In the case of abandonment, regulatory authorization is no longer necessary for these substances because their use as food additives has been permanently and completely abandoned. Our action also gives interested parties better information about what substances are used as food contact substances.
(Comment 2) Another comment asked FDA to remove the approvals of seven effective food contact notifications for long-chain perfluorinated compounds.
(Response) We decline to address food contact substances that are outside the scope of this food additive petition.
We reviewed the data and information in the petition and other available relevant material to determine whether the use of the two perfluoroalkyl containing substances as oil and water repellents for paper and paperboard for use in contact with aqueous and fatty foods has been permanently and completely abandoned. Based on the available information, we conclude that the use of these substances has been permanently and completely abandoned. Therefore, we are amending 21 CFR part 176 as set forth in this document. Upon the effective date (see
In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that we considered and relied upon in reaching our decision to approve the petition will be made available for public disclosure (see
We previously considered the environmental effects of this rule, as stated in the
This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.
If you will be adversely affected by one or more provisions of this regulation, you may file with the Division of Dockets Management (see
Any objections received in response to the regulation may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at
Food additives, Food packaging.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and re-delegated to the Director, Center for Food Safety and Applied Nutrition, 21 CFR part 176 is amended as follows:
21 U.S.C. 321, 342, 346, 348, 379e.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Final rule.
This final rule revises the Indian Housing Block Grant (IHBG) Program allocation formula authorized by section 302 of the Native American Housing Assistance and Self-Determination Act of 1996, as amended (NAHASDA). Through the IHBG Program, HUD provides federal housing assistance for Indian tribes in a manner that recognizes the right of Indian self-determination and tribal self-government. HUD negotiated this final rule with active tribal participation and using the procedures of the Negotiated Rulemaking Act of 1990. The regulatory changes reflect the consensus decisions reached by HUD and the tribal representatives on ways to improve and clarify the current regulations governing the IHBG Program formula.
Heidi J. Frechette, Deputy Assistant Secretary for Native American Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 4126, Washington, DC 20410, telephone number 202-401-7914 (this is not a toll-free number). Hearing- or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Relay Service at 1-800-877-8339.
The Native American Housing Assistance and Self-Determination Act of 1996 (25 U.S.C. 4101
Under the IHBG program, HUD makes assistance available to eligible Indian tribes for affordable housing activities. The amount of assistance made available to each Indian tribe is determined using a formula developed as part of the NAHASDA negotiated process. Based on the amount of funding appropriated for the IHBG program, HUD calculates the annual grant for each Indian tribe and provides this information to the Indian tribes. Indian tribes are required to submit to HUD an Indian Housing plan that includes, among other things, a description of planned activities and statement of needs. If the Indian Housing Plan complies with statutory and regulatory requirements, the grant is awarded.
Following the enactment of the Native American Housing Assistance and Self-Determination Reauthorization Act of 2008 (Pub. L. 110-411, approved October 14, 2008) (NAHASDA Reauthorization Act) HUD established a negotiated rulemaking committee
On July 3, 2012 (77 FR 39452) and September 18, 2012 (77 FR 57544), HUD announced its intent to establish a negotiated rulemaking committee for the purpose of reviewing the NAHASDA allocation formula regulations at 24 CFR part 1000, subpart D, and negotiating recommendations for a possible proposed rule modifying the IHBG formula. On July 30, 2013 (78 FR 45903), after considering public comment on the proposed membership, HUD published a
In developing this final rule, the Committee met nine times. Committee meetings took place on August 27-28, 2013, September 17-19, 2013, April 23-24, 2014, June 11-13, 2014, July 29-31, 2014, August 26-28, 2014, August 11-13, 2015, January 26-27, 2016, and September 20-21, 2016. The Committee agreed to operate based on consensus rulemaking and its approved charter and protocols. All of the Committee meetings were announced in the
During this negotiated rulemaking, the Committee undertook a comprehensive review of the IHBG formula and statutory changes that needed to be addressed in the regulations. With the full and active participation of the tribes, HUD and the Committee identified certain areas of the IHBG formula that required clarification, were outdated, or could be improved and, on May 31, 2016, published a proposed rule (81 FR 34290). With the exception of changes to § 1000.330(b)(ii), the proposed rule reflected the consensus decisions reached by the Committee during the negotiated rulemaking process on the best way to address these issues.
The Committee convened for a 2-day meeting in Oklahoma City, OK, on September 20-21, 2016, to review and consider public comments received on the proposed rule. This final rule takes into consideration the public comments on the proposed rule, and makes some changes, based on the public comments, to the May 31, 2016, proposed rule. It also reflects the consensus decisions reached by HUD and the Committee.
This final rule follows publication of the May 31, 2016, proposed rule and takes into consideration the public comments received on the proposed rule. In response to the public comments, a discussion of which is presented in the following section of this preamble, and in further consideration of issues addressed at the proposed rule stage, HUD and the Committee are making the following regulatory changes at this final rule stage:
• HUD has decided not to move forward with the single non-consensus provision in the proposed rule; the adjustment to the American Community Survey (ACS) proposed in § 1000.330(b). HUD meaningfully considered the public comments and engaged in extensive additional analysis. HUD has decided that the adjustment does not do enough to address volatility associated with small areas to warrant its introduction as a non-consensus adjustment.
• The Committee agreed by consensus to add a new § 1000.318(d) to establish the eligibility criteria for Formula Current Assisted Stock (FCAS) units that are demolished and rebuilt. The provision provides that a unit demolished pursuant to a planned demolition may be considered eligible as a FCAS unit if, after demolition is completed, the unit is rebuilt within one year. The provision provides that demolition is completed when the site of the demolished unit is ready for rebuilding and allows IHBG recipients to request approval for a one-time, one-year extension based on the formula factors in section 302(c)(1) of NAHASDA.
• The Committee agreed to revise § 1000.329(c) which requires that a tribe receiving Minimum Total Grant Allocation of Carryover Funds, certify the presence of households at or below 80 percent of median income, to more closely parallel a similar provision codified at § 1000.328(b)(2).
• The Committee agreed to clarify the undercount adjustment to the U.S. Decennial Census for Reservation and Trust Lands in § 1000.330(b). Specifically, the Committee agreed to change “Indian Lands in Remote Alaska” to “For Remote Alaska as designated by the U.S. Census Bureau, Alaska Formula Areas in Remote Alaska shall be treated as Reservation and Trust Lands for purposes of this paragraph”.
The public comment period for this rule closed on August 1, 2016, and HUD received 22 comments. Included in these 22 comments were 2 sets of identical comments; one set that contained 7 identical comments and a second set that contained 2 identical comments. Comments were submitted by federally recognized Indian tribes, tribal and regional housing authorities, TDHEs, associations comprised of tribes, tribal housing authorities, a law office, a nonprofit devoted to issues of race and ethnicity, and members of the public.
As discussed in this preamble, the Committee met on September 20 and 21, 2016, to review and consider responses to the public comments. This section of the preamble addresses the significant issues raised in the public comments and organizes the comments by subject category, with a brief description of the issue, followed by the Committee's response.
Comment:
Several commenters also stated that they do not support the implementation of any non-consensus items, and referred to the adoption of the ACS adjustment. Several of these commenters also concluded that implementing a non-consensus item severely dilutes the significance of this process, is not a sign of negotiating in good faith, and is inconsistent with what constitutes Government-to-Government consultation. One of the commenters also stated that the summary section of the proposed rule was inaccurate by stating that the proposed regulatory changes reflect the consensus decision of the Committee since the adoption of the data source itself was not made by consensus, and recommended that HUD revise the sentence to reflect that the proposal included regulatory changes that did not achieve consensus.
Another commenter stated that aggravating the ambiguity is the absence of any definition of the term “Indian Lands” in NAHASDA or the NAHASDA regulations, and the various uses of the term by other Federal agencies (
HUD is committed to work with the Census Bureau to improve the accuracy of the counts. Tribes may still challenge the ACS data.
HUD understands, however, the concern expressed by the commenters. HUD is able to isolate the impact on tribes' funding allocations that is due to the introduction of the ACS as a new data source. This ability to isolate the impact, and apply the control on the basis of that impact alone alleviates the concern of the commenters. HUD will continue to apply the same methodology to calculate the impacts of introduction of a new data source to avoid the concerns raised by the commenters with the agreed upon language.
The second problem, according to the commenter, is the potentially limited time for rebuilding the home where the weather conditions can delay or completely halt construction from October through May. Tribes should not lose their FCAS funds if these homes are not rebuilt within the one-year time frame. The commenter recommended, therefore, a definition for demolition that takes these concerns into account and allows tribes and TDHEs maximum flexibility in rehabilitation and reconstruction of FCAS units that are destroyed or demolished due to events beyond the control of the tribe/TDHE.
• If a FCAS unit is demolished, it will continue to be eligible as a FCAS unit if the following conditions are met:
○ Construction of a replacement unit begins within one year of the time the original unit is demolished. If the unit is demolished by the occurrence of a natural disaster or fire, demolition shall be defined to occur on the date of the event. If the unit is demolished by the voluntary act of the recipient, demolition shall be defined to occur on the date that the replacement unit is demolished to a point where construction can commence;
○ The replacement unit is complete within 24 months from the commencement of construction, except that if more than 5 units are being replaced, the time for completion of the units shall be 36 months.
• If an affordable housing unit is demolished and rebuilding occurs within 1 year of demolition of the unit, the unit may continue to be considered Formula Current Assisted Stock.
• As used in this subsection:
○ Demolition” means the intentional act or process of the tribe, and demolition occurs when the structure is completely destroyed and its component parts, including demolition debris, are removed from the site; and
○ Rebuilding occurs when the tribe has made substantial, initial, on-going site improvements to the site of the replacement housing unit, including laying or altering the foundation.
Other commenters recommended that HUD should consider developing or using a federally conducted national tribal survey to collect demographic and enrollment information for NAHASDA-eligible tribes. According to the commenters, a National Tribal Survey, jointly designed by HUD and tribes, would collect demographic data directly related to the IHBG formula. The commenters wrote that the survey could be administered by the Census Bureau under contract from HUD, much the same way the American Housing Survey is now done for special data related to public housing information. The commenters concluded that there would be many advantages to such a survey, including a focus on information essential for IHBG fund allocation, providing flexibility in survey design to accommodate future changes to the IHBG formula, and using said survey to inform a more accurate allocation of funds in other Indian programs like education and health care.
Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and, therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. This final rule was determined not to be a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and therefore was not reviewed by OMB.
The information collection requirements contained in this rule have been approved by OMB in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB Control Number 2577-0218. In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid OMB control number.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Executive Order 13132 (entitled “Federalism”) prohibits, to the extent practicable and permitted by law, an agency from promulgating a regulation that has federalism implications and either imposes substantial direct compliance costs on state and local governments and is not required by statute, or preempts state law, unless the relevant requirements of section 6 of the Executive Order are met. This rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This rule will not impose any federal mandate on any
This rule is a statutorily required establishment of a rate determination that does not constitute a development decision that affects the physical condition of specific project areas or buildings sites. Accordingly, under 24 CFR 50.19(c)(6), this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
The Catalog of Federal Domestic Assistance Number (CFDA) for Indian Housing Block Grants is 14.867, and the CFDA for Title VI Federal Guarantees for Financing Tribal Housing Activities is 14.869.
Aged, Community development block grants, Grant programs—housing and community development, Grant programs—Indians, Indians, Individuals with disabilities, Public housing, Reporting and recordkeeping requirements.
Accordingly, for the reasons described in the preamble, HUD amends 24 CFR part 1000 as follows:
25 U.S.C. 4101
(2) * * *
(i) For a geographic area not identified in paragraph (1) of this definition, and for expansion or re-definition of a geographic area from the prior year, including those identified in paragraph (1) of this definition, the Indian tribe must submit, on a form agreed to by HUD, information about the geographic area it wishes to include in its Formula Area, including proof that the Indian tribe, where applicable, has agreed to provide housing services pursuant to a Memorandum of Agreement (MOA) with the tribal and public governing entity or entities of the area, or has attempted to establish such an MOA, and is providing substantial housing services and will continue to expend or obligate funds for substantial housing services, as reflected in its Indian Housing Plan and Annual Performance Report for this purpose.
The IHBG formula consists of four components:
(a) Formula Current Assisted Stock (FCAS) (§ 1000.316);
(b) Need (§ 1000.324);
(c) 1996 Minimum (§ 1000.340); and
(d) Undisbursed IHBG funds factor (§ 1000.342).
(c)
(1) If units were converted before October 1, 1997, as evidenced by an amended ACC, then those units will be counted for formula funding and eligibility purposes as the type of unit to which they were converted.
(2) If units were converted on or after October 1, 1997, the following applies:
(i)
(ii)
(3) The Indian tribe, TDHE, or IHA shall report conversions on the Formula Response Form.
(b)(1) A Mutual Help or Turnkey III unit not conveyed after the unit becomes eligible for conveyance by the terms of the MHOA may continue to be considered Formula Current Assisted Stock only if a legal impediment prevented conveyance; the legal impediment continues to exist; the tribe, TDHE, or IHA has taken all other steps necessary for conveyance and all that remains for conveyance is a resolution of the legal impediment; and the tribe, TDHE, or IHA made the following reasonable efforts to overcome the impediments:
(i) No later than four months after the unit becomes eligible for conveyance, the tribe, TDHE, or IHA creates a written plan of action, which includes a description of specific legal impediments as well as specific, ongoing, and appropriate actions for each applicable unit that have been taken and will be taken to resolve the legal impediments within a 24-month period; and
(ii) The tribe, TDHE, or IHA has carried out or is carrying out the written plan of action; and
(iii) The tribe, TDHE, or IHA has documented undertaking the plan of action.
(2) No Mutual Help or Turnkey III unit will be considered FCAS 24 months after the date the unit became eligible for conveyance, unless the tribe, TDHE, or IHA provides evidence from a third party, such as a court or state or federal government agency, documenting that a legal impediment continues to prevent conveyance. FCAS units that have not been conveyed due to legal impediments on December 22, 2016 shall be treated as having become eligible for conveyance on December 22, 2016.
(e) A unit that is demolished pursuant to a planned demolition may be considered eligible as a FCAS unit if, after demolition is completed, the unit is rebuilt within one year. Demolition is completed when the site of the demolished unit is ready for rebuilding. If the unit cannot be rebuilt within one year because of relative administrative capacities and other challenges faced by the recipient, including, but not limited to geographic distribution within the Indian area and technical capacity, the Indian tribe, TDHE or IHA may request approval for a one-time, one-year extension. Requests must be submitted
(a) * * *
(3) In cases where a State recognized tribe's formula area overlaps with the formula area of a Federally recognized Indian tribe, the Federally recognized Indian tribe receives the allocation for the formula area up to its population cap, and the State recognized tribe receives the balance of the overlapping area (if any) up to its population cap.
(c) Upon receiving a request for expansion or redefinition of a tribe's formula area, if approving the request would create an overlap, HUD shall follow the notice and comment procedures set forth in paragraph (2)(ii) of the definition of “Formula area” in § 1000.302.
(a) If in any given year there are carryover funds, then HUD will hold the lesser amount of $3 million or available carryover funds for additional allocations to tribes with grant allocations of less than 0.011547 percent of that year's appropriations. All tribes eligible under this section shall receive a grant allocation equal to 0.011547 percent of that year's appropriations.
(b)(1) If the set-aside carryover funds are insufficient to fund all eligible tribes at 0.011547 percent of that year's appropriations, the minimum total grant shall be reduced to an amount which can be fully funded with the available set-aside carryover funds.
(2) If less than $3 million is necessary to fully fund tribes under paragraph (a) of this section, any remaining carryover amounts of the set aside shall be carried forward to the next year's formula.
(c) To be eligible, an Indian tribe must certify in its Indian Housing Plan the presence of any households at or below 80 percent of median income.
(d) For purposes of this section, carryover funds means grant funds voluntarily returned to the formula or not accepted by tribes in a fiscal year.
(a) The sources of data for the need variables shall be data that are available and collected in a uniform manner that can be confirmed and verified for all AIAN households and persons living in an identified area. Until fiscal year 2018, the data used are 2000 U.S. Decennial Census data and any HUD-accepted Census challenges. The 2000 U.S. Decennial Census data shall be adjusted annually using IHS projections based upon birth and death rate data provided by the National Center for Health Statistics.
(b)(1) Beginning fiscal year 2018, the data source used to determine the AIAN persons variable described in § 1000.324(g) shall be the most recent U.S. Decennial Census data adjusted for any statistically significant undercount for AIAN population confirmed by the U.S. Census Bureau and updated annually using the U.S. Census Bureau county level Population Estimates for Native Americans. For Remote Alaska as designated by the U.S. Census Bureau, Alaska Formula Areas in Remote Alaska shall be treated as Reservation and Trust Lands, unless the U.S. Census Bureau includes Remote Alaska in their Census Coverage Measurement or comparable study. The data under this paragraph (b) shall be updated annually using the U.S. Census Bureau county level Population Estimates for Native Americans.
(2) Beginning fiscal year 2018, the data source used to determine the variables described in paragraphs (a) through (f) of § 1000.324 shall initially be the American Community Survey (ACS) 5-year Estimates.
(c) Indian tribes may challenge the data described in this section pursuant to § 1000.336.
(a) To minimize the impact of funding changes based on the introduction of a new data source under § 1000.330, in fiscal year 2018 and each year thereafter, if, solely as a direct result of the introduction of a new data source, an Indian tribe's allocation under the need component of the formula is less than 90 percent of the amount it received under the need component in the immediate previous fiscal year, the Indian tribe's need allocation shall be adjusted up to an amount equal to 90 percent of the previous year's need allocation.
(b) Nothing in this section shall impact other adjustments under this part, including minimum funding, census challenges, formula area changes, or an increase in the total amount of funds available under the need component.
(c) In the event of a decrease in the total amount of funds available under the need component, an Indian tribe's adjusted allocation under paragraph (a) of this section shall be reduced by an amount proportionate to the reduced amount available for distribution under the need component of the formula.
(d) Adjustments under paragraph (b) or (c) of this section shall be made to a tribe's need allocation after adjusting that allocation under paragraph (a) of this section.
The addition and revisions read as follows:
(a) * * *
(8) The undisbursed funds factor.
(d) An Indian tribe or TDHE that seeks to appeal data or a HUD formula determination, and has data in its possession that are acceptable to HUD, shall submit the challenge or appeal in writing with data and proper documentation to HUD. An Indian tribe or TDHE may appeal the undisbursed funds factor no later than 30 days after the receipt of the formula determination. Data used to challenge data contained in the U.S. Census must meet the requirements described in § 1000.330(a). Further, in order for a census challenge to be considered for the upcoming fiscal year allocation, documentation must be submitted by March 30th.
(e) HUD shall respond to all challenges or appeals no later than 45 days after receipt and either approve or deny the appeal in writing, setting forth the reasons for its decision.
(1) If HUD challenges the validity of the submitted data HUD and the Indian tribe or TDHE shall attempt in good faith to resolve any discrepancies so that such data may be included in the formula allocation.
(2) If HUD denies a challenge or appeal, the Indian tribe or TDHE may request reconsideration of HUD's denial within 30 calendar days of receipt of HUD's denial. The request shall be in writing and set forth justification for reconsideration.
(3) HUD shall in writing affirm or deny the Indian tribe's or TDHE's request for reconsideration, setting forth HUD's reasons for the decision, within 20 calendar days of receiving the request. HUD's denial of a request for reconsideration shall constitute final agency action.
(4) If HUD approves the Indian tribe or TDHE's appeal, HUD will adjust to the Indian tribe's or TDHE's subsequent fiscal year allocation to include only the disputed fiscal year(s).
(f) In the event HUD questions whether the data contained in the formula accurately represents the Indian tribe's need, HUD shall request the Indian tribe to submit supporting documentation to justify the data and, if applicable, to provide a commitment to serve the population indicated in the geographic area.
Yes, beginning fiscal year 2018. After calculating the initial allocation calculation for the current fiscal year by calculating FCAS, need, the 1996 Minimum, and repayments or additions for past over- or under-funding for each Indian tribe, the undisbursed funds factor shall be applied as follows:
(a) The undisbursed funds factor applies if an Indian tribe's initial allocation calculation is $5 million or more and the Indian tribe has undisbursed IHBG funds in an amount that is greater than the sum of the prior 3 years' initial allocation calculations.
(b) If subject to paragraph (a) of this section, the Indian tribe's grant allocation shall be the greater of the initial allocation calculation minus the amount of undisbursed IHBG funds that exceed the sum of the prior 3 years' initial allocation calculations, or its 1996 Minimum.
(c) For purposes of this section, “undisbursed IHBG funds” means the amount of IHBG funds allocated to an Indian tribe in HUD's line of credit control system on October 1 of the fiscal year for which the allocation is made. For Indian tribes under an umbrella TDHE (a recipient that has been designated to receive grant amounts by more than one Indian tribe), if the Indian tribe's initial allocation calculation is $5 million or more, its undisbursed IHBG funds is the amount calculated by multiplying the umbrella TDHE's total balance in HUD's line of credit control system on October 1 of the fiscal year for which the allocation is made by a percentage based on the Indian tribe's proportional share of the initial allocation calculation of all tribes under the umbrella.
(d) Amounts subtracted from an initial allocation calculation under this section shall be redistributed under the need component among all Indian tribes not subject to paragraph (a) of this section (while also retaining the 1996 Minimum).
This appendix shows the different components of the Indian Housing Block Grant (IHBG) formula. The following text explains how each component of the IHBG formula is calculated.
1. The first step in running the IHBG formula is to determine the amount available for allocation in the Fiscal Year (FY). It is the sum of:
(a) The FY appropriation for the IHBG program less amounts in the Appropriations Act mandated for purposes other than the formula allocation.
(b) The net amount, if any, made available as a result of corrections for over- or under-allocations in prior FYs.
(c) The amount, if any, made available pursuant to § 1000.536.
(d) The amounts, if any, made available because tribes voluntarily returned, or did not accept, the amounts allocated to them in prior FYs, defined as “carryover” (see § 1000.329).
2. If there is carryover as defined in § 1000.329, the amount of carryover up to $3 million, is then held aside for allocation under the minimum total grant provisions of the formula (see 11 below).
3. The IHBG formula first calculates the amount each tribe is allocated under the Formula Current Assisted Stock (FCAS) component (See §§ 1000.310 through 1000.322). The FCAS component is comprised of two parts, Operating Subsidy (§ 1000.316(a)) and Modernization (§ 1000.316(b)).
(a) The Operating Subsidy component is calculated in two steps, as follows:
(i) Each tribe's counts of Low Rent, Homeownership (Mutual Help and Turnkey III), and Section 8 units are multiplied by the National Per Unit Subsidy for operations for that category of unit, which is a 1996 index for the type of unit that is adjusted for inflation (see § 1000.302 defining National Per Unit Subsidy). The amounts are summed to create an initial calculation of the operating subsidy component.
(ii) The initial operating subsidy component amount is then adjusted for local area costs, using an adjustment factor called the AELFMR. The AELFMR factor is calculated for each tribe in three steps. First, an Allowable Expense Level (AEL) factor is calculated by dividing the tribe's AEL, a historic per-unit measure of operating cost, by the national weighted average AEL (see § 1000.302 defining Allowable Expense Level). Second, a Fair Market Rent (FMR) factor is calculated by dividing the tribe's FMR amount, an area-specific index published annually by HUD (see § 1000.302 Fair Market Rent factor), by the national weighted average FMR. Third, an AELFMR factor is created by assigning each tribe the greater of its AEL or FMR factor, and dividing that figure by the national weighted average AELFMR. In all cases, when the national average figure is calculated, tribes are weighted by the amount of their initial operating subsidy as calculated in 3(a)(i).
(See § 1000.320).
(b) The Modernization component is determined using two methods depending on the number of public housing units that a tribe's housing authority operated prior to the Native American Housing and Self-Determination Act.
(i) For all tribes, the number of Low Rent, Mutual Help, and Turnkey III units are multiplied by the National Per Unit Subsidy for modernization from 1996 adjusted for inflation (see § 1000.302 defining National Per Unit Subsidy).
(ii) For Indian tribes with an Indian Housing Authority (IHA) that owned or operated fewer than 250 units on October 1, 1997, an alternative modernization component is calculated from the amount of funds the IHA received under the assistance program authorized by Section 14 of the 1937 Act (not including funds provided as emergency assistance) for FYs 1992 through 1997 (see § 1000.316(b)(2)). If this alternative calculation is greater than the amount calculated in paragraph (a) above, it is used to calculate the tribe's modernization component.
(iii) The Modernization component is then multiplied by a local area cost adjustment factor based on the Total Development Cost (TDC) for the tribe (see § 1000.302) divided by the national weighted average of all TDCs weighted by each tribe's pre-adjustment Modernization calculation in paragraph (b)(i) or (ii) above as applicable.
4. The total amounts calculated under the FCAS component for each tribe are then added together to determine the national total amount allocated under the FCAS component. That total is subtracted from the funds available for allocation less the carryover amount held aside for allocation under the minimum total grant provision in § 1000.329. The remainder is the total amount available for allocation under the need component of the IHBG formula.
5. The first step in calculating need component is identifying weighted needs variables and adjusting for local area cost differences.
(a) Need is first calculated using seven factors, where each factor is a tribe's share of the national totals for each of seven variables. The data used for the seven variables is described in § 1000.330. The person count variable is adjusted for statistically significant undercounts for reservations, trust lands and remote Alaska and for growth in population since the latest Decennial Census. The Population Cap provision in § 1000.302 Formula Area (5) is then applied. Needs data are capped if the American Indian and Alaska Native (AIAN) population counts exceed twice tribal enrollment unless a tribe
The factors are weighted as set forth in § 1000.324, as follows:
(i) 22 percent of the amount available for allocation under the needs component are allocated by the share of the total AIAN households paying more than 50 percent of their income for housing and living in each tribe's Formula Area (see § 1000.302);
(ii) 25 percent are allocated by the share of the total AIAN households living in overcrowded housing and/or without kitchen or plumbing in each tribe's Formula Area;
(iii) 15 percent are allocated by the share of the total AIAN households with an annual income less than or equal to 80 percent of Formula Median Income (see § 1000.302) living in each tribe's Formula Area less the tribe's number of FCAS.
(iv) 13 percent are allocated by the share of AIAN households with annual income less than or equal to 30 percent of Formula Median Income living in each tribe's Formula Area;
(v) 7 percent are allocated by the share of AIAN households with annual income between 30 percent and 50 percent of Formula Median Income living in each tribe's Formula Area;
(vi) 7 percent are allocated by the share of AIAN households with annual income between 50 percent and 80 percent of Formula Median Income living in each tribe's Formula Area;
(vii) 11 percent are allocated by the share of AIAN persons living in each tribe's Formula Area.
(b) The result of these calculations for each tribe is then multiplied by a local area cost adjustment based on the Total Development Cost for the tribe (see § 1000.302) divided by the national weighted average of TDCs weighted by each tribe's pre-adjustment need calculation. (See § 1000.325).
6. Each tribe's initial need allocation amount is then adjusted under the minimum need allocation provision of § 1000.328. Tribes that are allocated less than $200,000 under the FCAS component of the IHBG formula and that certify the presence of any households at or below 80 percent of median income in their Indian Housing Plans will be allocated no less than a specified minimum under the needs component of the formula. The specified minimum amount shall equal 0.007826 percent of the appropriation for that FY after set-asides. The increase in funding for the tribes allocated the minimum need amount is funded by a reallocation from other tribes whose needs allocation exceeds the minimum need amount. This is necessary in order to keep the total allocation within the appropriation level (See § 1000.328).
7. Whenever a new Data Source is first introduced, provision is made to moderate extreme impacts through phase down adjustments. For purposes of these adjustments, new data sources (see § 1000.331) include the initial introduction of the American Community Survey and 2010 Decennial Census in 2018, and the initial introduction of the 2020 Decennial Census when it becomes available. Tribes whose allocation under the need component decrease by more than ten percent in the first year of introduction will have that decrease moderated by subsequent adjustments, as required to prevent a drop of more than ten percent per year in the tribes' needs allocation attributable solely to the introduction of the New Data Source. After allocation adjustments are made under § 1000.331 for a FY, the needs allocation of an Indian tribe whose needs allocation increased as a result of the introduction of a New Data Source under § 1000.331 shall be adjusted downward proportionate to its share of the total increase in funding resulting from the introduction of a New Data Source to keep the overall needs allocation within available appropriations.
8. A tribe's preliminary total allocation for a grant is calculated by summing the amounts calculated under the FCAS and need components. This amount is compared to how much a tribe received in FY 1996 for operating subsidy and modernization under the 1937 Housing Act. If a tribe received more in FY 1996 for operating subsidy and modernization than it does under the IHBG formula allocation, its preliminary total allocation is adjusted up to the FY 1996 amount (See § 1000.340(b)). Indian tribes receiving more under the IHBG formula than in FY 1996 have their grant allocations adjusted downward to offset the upward adjustments for the other tribes.
9. The initial allocation amount for the current FY is calculated by adding any adjustments for over- or under-funding occurring in prior FYs to the allocation calculated in the previous step. These adjustments typically result from late reporting of FCAS changes, or conveyances which occur in a timely manner following the removal of units from eligibility due to conveyance eligibility.
10. The Undisbursed Funds Factor component is calculated based on the initial allocation amounts calculated above. Tribes with an initial allocation of $5 million or more and undisbursed IHBG grant amounts (the amount available to the tribe in HUD's line of credit control on October 1 of the FY for which the allocation is being made) in an amount greater than the sum of the prior 3 years' initial allocation calculations will have their initial allocation amount adjusted down by the difference between the tribe's undisbursed grant amounts and the sum of its prior 3 years' initial allocation calculations. If this adjustment would bring the tribe below its FY 1996 minimum (see § 1000.340(b)), then the tribe will be allocated its FY 1996 minimum. The sum of the adjustments will be reallocated among the other tribes proportionally under the need component.
11. A final adjustment is made under § 1000.329 which allocates available carryover amounts up to $3 million to achieve minimum total allocations. Tribes that certify in their Indian Housing Plans the presence of any eligible households at or below 80 percent of median income and whose current FY formula allocation after the Undisbursed Funds Factor adjustment determined in the preceding step is less than 0.011547 percent of the FY appropriation after set-asides, will have their allocation adjusted upwards to 0.011547 percent of the FY appropriation after set-asides, or to a lesser percentage which can be achieved for all eligible tribes with available carryover held for this adjustment (see 2 above).
1. The first step in running the Indian Housing Block Grant (IHBG) formula is to determine the total amount available for allocation in the current Fiscal Year (FY).
2. If there is carryover as defined in § 1000.329, the amount of carryover up to $3 million, is then held aside for allocation under the minimum total grant provisions of the formula (see Step 10), then:
3. The FCAS component is calculated first. FCAS consists of two parts, Operating Subsidy (OPSUB) and Modernization (MOD), such that:
a. OPSUB is calculated in two steps, as follows:
(i) First, the number of Low-Rent, Section 8 and homeownership units are multiplied by the applicable national per unit subsidy (§ 1000.302 National Per Unit Subsidy). The amounts are summed to create an initial calculation of the Operating Subsidy component.
(ii) The initial Operating Subsidy component amount is then adjusted for local area costs, using an adjustment factor called the AELFMR. The AELFMR factor is calculated for each tribe in three steps. First, an AEL factor is calculated by dividing the tribe's Allowable Expense Level (AEL), a historic per-unit measure of operating cost, by the national weighted average AEL (see § 1000.302 defining Allowable Expense Level)
Second, an FMR factor is calculated by dividing the tribe's Fair Market Rent amount (FMR), an area-specific index published annually by HUD (see § 1000.302 Fair Market Rent factor), by the national weighted average FMR.
Third, an AELFMR factor is created by assigning each tribe the greater of its AEL or FMR factor, and dividing that figure by the national weighted average AELFMR. In all cases, when the national average figure is calculated, tribes are weighted by the amount of their initial operating subsidy as calculated in 3(a)(i) above. (See § 1000.320).
Finally, the AELFMR factor is used to adjust the initial operating subsidy calculation for differences in local area costs.
b. The modernization component, MOD, is calculated by two different methods, depending on whether the tribe had an Indian housing authority (IHA) that owned or operated more than 250 public housing units on October 1, 1997.
(i) MOD1 is calculated for all tribes and considers the number of Low-Rent, and Mutual Help and Turnkey III FCAS units. Each of these is adjusted by the national per-unit modernization subsidy
(ii) MODAVG is calculated only for tribes that had an IHA that owned or operated fewer than 250 public housing units on October 1, 1997, as the annual average amount they received for FYs 1992 through 1997 under the assistance program authorized by section 14 of the 1937 Act (not including emergency assistance). If this alternative calculation is greater than the amount calculated in (i), it is used to calculate the tribe's modernization component.
c. The modernization calculation is adjusted for local area costs:
4. Now that calculation for FCAS is complete, the amount allocated using the need component of the formula can be determined:
5. The first step in calculating needs is identifying weighted needs variables and adjusting for local area cost differences.
a. The basic needs calculation uses seven weighted criteria based on population and housing data in a tribe's Formula Area or share of Formula Area if Formula Areas overlap (see § 1000.302 Formula Area and § 1000.326) to allocate the funds available for the needs component. The person count variable is adjusted for statistically significant undercounts for reservations, trust lands and remote Alaska and for changes in population since the latest Decennial Census.
The Population Cap provision in § 1000.302 Formula Area (5) is then applied. Needs data are capped if AIAN population counts exceed twice tribal enrollment unless a tribe can demonstrate that it serves more than twice as many non-tribal members as tribal members, in which case the cap is adjusted upward.
If POPCAPTEST=1, (tribes subject to Population Cap) then:
For tribes NOT subject to Population Cap,
Where:
An initial calculation of the needs component is then calculated by determining each tribe's share of national totals on each variable, and applying weights to the variables as specified in regulation.
b. The basic needs calculation is adjusted to reflect differences in local area costs.
6. The need allocation computed above is adjusted to take into account the minimum needs provision. Tribes allocated less than $200,000 under the FCAS component of the IHBG formula and that certify the presence of any households at or below 80 percent of median income in their Indian Housing Plan are allocated an additional amount so their needs allocation equals 0.007826 percent of the available appropriations for that FY after set-asides.
If in the first need computation, a qualified tribe is allocated less than the minimum needs funding level, its need allocation will go up. Other tribes whose needs allocations are greater than the minimum needs amount will have their allocations adjusted downward to keep the total allocation within available funds:
After allocation adjustments are made under § 1000.331 for a FY, the needs allocation of an Indian tribe whose needs allocation increased as a result of the introduction of a new data source shall be adjusted downward proportionate to its share of the total increase in funding resulting from the introduction of a new data source to keep the overall need component within available appropriations. For each tribe which benefitted from the introduction of the new data source, their share of the total gain is calculated and that share is used to determine the amount of contribution they will make in each year following the introduction of the new data source to allow the phase down adjustments to be made without exceeding the amount available for allocation.
The initial needs allocation for each tribe is adjusted based on the phase down adjustments and contribution amounts in the phase down schedule.
PDADJ
Furthermore, when the 2020 Decennial Census or other new data source is introduced, a new phase down adjustment schedule will be calculated in a similar manner as that was calculated for FY 2018.
8. A tribe's preliminary total allocation is calculated by summing the amounts calculated under the FCAS and need components that will serve as the basis for further adjustments in accordance with § 1000.340.
GRANT1 is compared to how much a tribe received in FY 1996 for operating subsidy and modernization under the 1937 Housing Act. If a tribe received more in FY 1996 for operating subsidy and modernization than its IHBG formula allocation, its preliminary total allocation is adjusted up to the FY 1996 amount (See § 1000.340(b)). Indian tribes receiving more under the IHBG formula than in FY 1996 have their grant allocations adjusted downward to offset the upward adjustment for the other tribes.
9. The initial allocation amount for the current FY is calculated by adding any adjustments for over- or under-funding occurring in prior FYs to the allocation calculated in the previous step. These adjustments typically result from late reporting of FCAS changes, or conveyances.
So the UDFFadj = REPGRANTaftUDFF − GRANT2 and UDFFadjTOT= Absolute value of the sum of UDFF adjustments for tribes subject to reduction.
If UDFFtest is not equal to 1, tribes receive a portion of the funds recovered under the UDFF provision based on their share of total needs excluding any tribes with UDFFtest = 1. For these tribes, then:
11. A final adjustment is made under § 1000.329 which allocates available carryover amounts up to $3 million to achieve minimum total allocations. Tribes that certify in their Indian Housing Plans the presence of any eligible households at or below 80 percent of median income and whose total allocation determined in the preceding step is less than 0.011547 percent of the FY appropriation after set-asides, will have their allocation adjusted upwards to 0.011547 percent of the FY appropriation after set-asides, or to a lesser percentage which can be achieved for all eligible tribes with available carryover funds set-aside for this purpose.
If (GRANT2 + UDFFADJ) < MINGRANT and income-based need has been identified in a tribe's IHP, then tribe qualifies for MINGRANTADJ. For Tribes that qualify, calculate:
If the Sum for all tribes of MINGRANTADJTEST > MGHOLD, then:
12. A tribe's final allocation consists of the initial current FY formula allocation with three adjustments.
Department of the Air Force, DoD.
Final rule.
This rule contains amendments for policy changes and clarification and deletions for the Air Force guidance on Administrative claims and Personnel and Carrier Recovery Claims. The rule relates to the Air Force processes for claims filed for and against the Air Force as well as Air Force processes for filing personnel and carrier recovery claims.
This rule is effective on December 22, 2016.
Mr. Daniel Lemieux (AFLOA/JACC), 1500 West Perimeter Rd, Ste 1700, Joint Base Andrews, MD 20762, (240) 612-4646,
On March 30, 2016 (81 FR 17621-17635), the Department of the Air Force published a proposed rule titled “Administrative Claims” for a 60-day public comment period. At the end of the public comment period, no public comments were received. As a result, no changes were made to the regulatory text.
The purpose of this rule is to provide the public with information necessary to file a claim against the United States Air Force for money damages and to notify the public of the procedures used to collect money from the public for damages to property under the control of the United States Air Force. Additionally, it is to provide the public with information about changes and deletions concerning the settlement and payment of claims under the Military Personnel and Civilian Employee's Claims Act for incident to service loss and damage to personal property.
This part describes the process and procedures by which claims against the Air Force will be addressed, including who are proper claimants, how, where and when to file a claim, what claims are payable, how the Air Force will adjudicate claims and how to appeal unfavorable decisions. It also describes the process the Air Force will use for asserting claims against persons who damage Air Force property.
The regulations contained herein require the public who wish to file a claim against the Air Force to substantiate their loss, which may result in minor or incidental costs to the claimant. Revised regulations pertaining to how the Air Force asserts claims for damage to Air Force property may result in increased costs to those who cause said damage. The benefits of these regulations include increased safeguards to ensure public funds are not expended for fraudulent claims and to ensure the U.S. government receives adequate compensation for damages to its property wrongfully caused by others.
This rule is part of DoD's retrospective plan, completed in August 2011, under Executive Order 13563, “Improving Regulation and Regulatory Review,” DoD's full plan and updates can be accessed at:
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute 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. The Department of Air Force has assessed this rule and determined this rule to be a “non-significant regulatory action.”
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) requires agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2014, that threshold is approximately $141 million. This rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.
It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.
This rule does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This rule will not have a substantial effect on State and local governments.
Administrative claims.
Accordingly, 32 CFR part 842 is amended as follows:
Sec. 8013, 100 Stat. 1053, as amended; 10 U.S.C. 8013, except as otherwise noted; 28 CFR 14.11, except as otherwise noted.
Air Force Regulations are available on the e-Publishing Web site at
This part establishes standard policies and procedures for all administrative claims resulting from Air Force activities and for which the Air Force has assigned responsibility.
The revisions read as follows:
(f)
(g)
(1)
(2)
File a claim at the base legal office of the unit or installation at or nearest to where the accident or incident occurred. If the accident or incident occurred in a foreign country where no Air Force unit is located, file the claim with the Defense Attache (DATT) or Military Assistance Advisory Group (MAAG) personnel authorized to receive claims (DIAM 100-1 and AFR 400-45). In a foreign country where a claimant is unable to obtain adequate assistance in filing a claim, the claimant may contact the nearest Air Force SJA. The SJA then advises AFLOA/JACC through claims channels of action taken and states why the DATT or MAAG was unable to adequately assist the claimant.
(a)
(b)
(d)
(g) Claims involving wrongful taking stemming from larceny, forgery or deceit, which are not accompanied by riotous or violent action.
(h) Claims against Air National Guard members unless they are performing duty under Title 10 U.S.C.
(i) Claims for indirect, consequential or remote damages.
(a) A complaint must be submitted within 90 days of the date of the incident. The appointing commander may find good cause for the delay and accept a late claim. The appointing commander's determination of good cause is final and not reviewable.
(b) Assessment of damages in excess of $5,000 against an offender's pay for a single incident requires AFLOA/JACC approval.
Claimant complains (orally or in writing) to the commander of a military organization or unit of the alleged offending member or members or to the commander of the nearest military installation. If the claim is made orally, the individual must assist the commander to reduce the complaint to writing within a reasonable time. The complainant need not request a sum certain in writing at the time the complaint is filed, but they must present such value and evidence before settlement is made.
(a)
(b)
(c)
(a)
(1) A claim is also filed when a federal military agency receives from a claimant or duly authorized agent an electronic submission, through a Department of Defense claims Web site, indicating that the claimant intends for the appropriate military branch to consider a digitally signed demand for a determinable sum of money.
(2) A claim is also filed when the Air Force receives from a claimant or duly authorized agent an electronic submission, through the Air Force claims Web site, a digitally signed demand for a determinable sum of money.
Upon request of a claimant, a settlement authority may make a partial payment in advance of final settlement when a claimant experiences personal hardship due to extensive property damage or loss. Partial payments are made if a claim for only part of the loss is submitted and is readily provable, up to the amount of the settlement authority. (The claimant may later amend the claim for the remainder of the loss.) If the total payable amount of the claim exceeds the payment limits of the settlement authority, send it with recommendations to the proper settlement authority.
A claim may be filed by:
(a) A proper claimant.
(b) An authorized agent or legal representative of a proper claimant.
(c) A survivor of a deceased proper claimant in this order:
(1) Spouse.
(2) Children.
(3) Father or mother.
(4) Brothers or sisters.
(d) Property that is owned by the claimants, or their immediate families, or borrowed for their use, or in which the claimants or their immediate families has an enforceable ownership interest.
Claims may be payable for loss of or damage to tangible personal property when the damage occurs incident to service. For loss of or damage to property to be incident to service, it must occur at a place and time that is connected to the service of an active duty military member or employment of a civilian employee.
(a)
(1) Any location on a military installation not otherwise excluded.
(2) Any office, building, recreation area, or real estate the Air Force or any other DoD element uses or controls.
(3) Any place a military member is required or ordered to be pursuant to their duties and while performing those duties.
(4) Assigned Government housing or quarters in the United States or provided in kind. The Military Personnel and Civilian Employees' Claims Act specifically prohibits payment for loss of or damage to property in quarters within the US unless the housing or quarters are assigned or otherwise provided in kind. Base housing that has not been privatized is generally considered assigned or provided in kind wherever it is located.
(i) Privatized housing or quarters within the United States subject to the Military Housing Privatization Initiative located within the fence line of a military installation or on federal land in which the DoD has an interest is considered assigned or otherwise provided in kind for the purposes of the Military Personnel and Civilian Employees' Claims Act.
(ii) [Reserved]
(5) Housing or quarters outside the United States. Outside the US, authorized off-base quarters, as well as assigned quarters, including quarters in US territories and possessions, are authorized places. The residence of a civilian employee is not an authorized location if the employee is a local inhabitant.
(6) Temporary duty (TDY) quarters and locations en route to the TDY destination. Significant deviations from the direct travel route are not authorized locations.
(7) Permanent change of station (PCS) temporary quarters and locations enroute to the PCS destination. Significant deviations from the direct travel route are not authorized locations.
(8) Entitlement and benefit locations. For these locations to be authorized, the claimant must be using them for the intended purpose and the property must be reasonably linked to that purpose.
(9) Locations where personal property shipped or stored at government expense are found. Government facilities where property is stored at the claimant's expense or for their convenience without an entitlement are not authorized places.
(b)
(1) An unusual occurrence;
(2) Theft, vandalism or other malfeasance;
(3) Hostile action;
(4) A carrier, contractor, warehouseman or other transportation service provider storing or moving goods or privately owned vehicles at government expense;
(5) An agent of the US; or
(6) A permanent seizure of a witness' property by the Air Force.
The revisions read as follows:
(d) The loss is recovered or recoverable from an insurer or other source unless the settlement authority determines there is good cause for not claiming against the insurer.
(j) It is an appraisal fee, unless the settlement authority requires one to adjudicate the claim.
(m) It is an item acquired, possessed, shipped, or stored in violation of any US Armed Force directive or regulation.
(n) It is an item fraudulently claimed.
(u) It is an inconvenience expense.
(y) It is damage to, or loss of a rental vehicle which TDY or PCS orders authorized.
(z) It is a cost to relocate a telephone or mobile or manufactured home due to a government ordered quarters move.
This subpart establishes policies and procedures for all administrative claims under the Military Claims Act for which the Air Force has assigned responsibility.
(b)
The revisions read as follows:
(a)
(3) The following individuals have delegated authority to settle claims for $25,000 or less and to deny claims in any amount:
(ii) The Director, Civil Law and Litigation.
(iii) The Chief, Associate Chief and Branch Chiefs, Claims and Tort Litigation Division.
(4) SJAs of the Air Force component commander of the US geographic combatant commands for claims arising within their respective combatant command areas of responsibility have delegated authority to settle claims payable or deny claims filed for $25,000 or less.
(5) SJAs of GCMs in PACAF and USAFE have delegated authority to settle claims payable, or deny claims filed for $15,000 or less.
(b)
(f)
(a)
Subpart P of this part sets forth procedures for advance payments.
(a) A claim must be filed in writing within 2 years after it accrues. It is deemed to be filed upon receipt by The Judge Advocate General, AFLOA/JACC, or a Staff Judge Advocate of the Air Force. A claim accrues when the claimant discovers or reasonably should have discovered the existence of the act that resulted in the claimed loss. The same rules governing accrual pursuant to the Federal Tort Claims Act should be applied with respect to the Military Claims Act. Upon receipt of a claim that properly belongs with another military department, the claim is promptly transferred to that department.
(c) A claim filed after the statute of limitations has run is considered if the US is at war or in an armed conflict when the claim accrues or if the US enters a war or armed conflict after the claim accrues, and if good causes shows how the war or armed conflict prevented the claimant from diligently filing the claim within the statute of limitations. But in no case will a claim be considered if filed more than two years after the war or armed conflict ends.
(a) Citizens and inhabitants of the United States. US inhabitants includes dependents of the US military personnel and federal civilian employees temporarily outside the US for purposes of US Government service.
(b) US military personnel and civilian employees. Note: These personnel are not proper claimants for claims for personal injury or death that occurred incident to their service.
(c) Foreign military personnel when the damage or injury occurs in the US. Do not pay for claims under the Military Claims Act (MCA) for personal injury or death of a foreign military personnel that occurred incident to their service.
(d) States, state agencies, counties, or municipalities, or their political subdivisions.
(e) Subrogees of proper claimants to the extent they have paid for the claim in question.
(a) Governments of foreign nations, their agencies, political subdivisions, or municipalities.
(b) Agencies and nonappropriated fund instrumentalities (NAFIs) of the US Government.
(c) Subrogees of § 842.42(a) and (b).
(d) Inhabitants of foreign countries.
The revision reads as follows:
(a) Claims arising from negligent or wrongful acts or omissions committed by United States military or civilian personnel while acting in the scope of their employment, subject to the exceptions listed in this subpart.
(a) Claims covered by the Federal Tort Claims Act (FTCA), Foreign Claims Act (FCA), International Agreements Claims Act (IACA), 10 U.S.C. 2734a and 2734b, Air Force Admiralty Claims Act (AFACA), 10 U.S.C. 9801-9804, 9806, National Guard Claims Act (NGCA), 32 U.S.C. 715, or covered under the Military Personnel and Civilian Employees' Claims Act (MPCECA), 31 U.S.C. 3701, 3721.
(1) MCA claims arising from noncombat activities in the US are not covered by the FTCA because more elements are needed to state an FTCA claim than are needed to state a claim under the MCA for noncombat activities. All FTCA claims are based on elements of traditional tort liability (
(2) Claims for incident-to-service damage to vehicles caused by the negligence of a member or employee of the armed forces acting in the scope of employment are paid under the MCA, instead of the Military Personnel and Civilian Employees' Claims Act.
(b) Arises with respect to the assessment or collection of any customs duty, or the detention of any goods or merchandise by any US officer of customs or excise, or any other US law enforcement officer. Note: This includes loss or damage to property detained by members of the Security Forces or Office of Special Investigation (OSI).
(c) Is cognizable under US admiralty and maritime law, to include:
(1) The Suits in Admiralty Act, 46 U.S.C. 30901 and following.
(2) The Death on the High Seas Act, 46 U.S.C. 30301 and following.
(3) The Public Vessels Act, 46 U.S.C. 31101 and following.
(4) Exception: Claims arising from noncombat activities may be paid under the MCA, even if they are also cognizable under paragraphs (c)(1) through (3) of this section.
(d) Arises out of assault, battery, false imprisonment, false arrest, malicious prosecution, or abuse of process. Exception: Unless such actions were committed by an investigative or law enforcement officer of the US who is empowered by law to conduct searches, seize evidence, or make arrests for violations of federal law.
(e) Arises out of libel, slander, misrepresentation, or deceit.
(f) Arises out of an interference with contract rights.
(g) Arises out of the combat activities of US military forces.
(h) Is for the personal injury or death of a member of the Armed Forces of the US incident to the member's service.
(i) Is for the personal injury or death of any person for workplace injuries covered by the Federal Employees' Compensation Act, 5 U.S.C. 8101, and following.
(j) Is for the personal injury or death of any employee of the US, including nonappropriated fund employees, for workplace injuries covered by the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901, and following.
(k) Is for a taking of property,
(l) Is for patent or copyright infringement.
(m) Results wholly from the negligent or wrongful act of the claimant.
(n) Is for the reimbursement of medical, hospital, or burial expenses furnished at the expense of the US, either directly or through contractual payments.
(o) Arises from contractual transactions, express or implied (including rental agreements, sales agreements, leases, and easements), that:
(1) Are payable or enforceable under oral or written contracts; or
(2) Arise out of an irregular procurement or implied contract.
(p) Is for the personal injury or death of military or civilian personnel of a foreign government incident to their service.
(q) Is based on an act or omission of an employee of the government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation is valid. Do not deny claims solely on this exception without the prior approval of USAF/JACC. Claims under the noncombat activities provision of this subpart may be paid even if this paragraph (q) applies. Is based on the exercise or performance of, or the failure to exercise or perform, a discretionary function or duty on the part of a federal agency or a Federal Government employee, whether or not the discretion involved is abused. Do not deny claims solely on this exception without the prior approval of USAF/JACC. Exception: Claims under the noncombat activities provision may be paid even if this paragraph (q) applies.
(r) Is not in the best interests of the US, is contrary to public policy, or is otherwise contrary to the basic intent of the MCA. Examples include, but are not limited to, when a claimant's criminal conduct or failure to comply with a nonpunitive regulation is a proximate cause of the loss. Prior approval must be obtained from USAF/JACC before denying claims solely on this exception.
(s) Arises out of an act or omission of any employee of the government in administering the provisions of the Trading With the Enemy Act, 50 U.S.C. app. 1-44.
(t) Is for damages caused by the imposition or establishment of a quarantine by the US.
(u) Arises from the fiscal operations of the Department of the Treasury or from the regulation of the monetary system.
(v) Arises from the activities of the Tennessee Valley Authority.
(w) Arises from the activities of a federal land bank, a federal intermediate credit bank, or a bank for cooperatives.
(x) Is for the personal injury or death of any government contractor employee for whom benefits are available under any worker's compensation law, or under any contract or agreement providing employee benefits through insurance, local law, or custom when the US pays insurance either directly or as part of the consideration under the contract. Only USAF/JACC may act on these claims.
(y) Is for damage, injury or death from or by flood or flood waters at any place.
(z) Is for damage to property or other losses of a state, commonwealth, territory, or the District of Columbia caused by Air National Guard personnel engaged in training or duty under 32 U.S.C. 316, 502, 503, 504, or 505 who are assigned to a unit maintained by that state, commonwealth, territory, or the District of Columbia.
(aa) Is for damage to property or for any death or personal injury arising out of activities of any federal agency or employee of the government in carrying out the provisions of the Disaster Relief Act of 1974 (42 U.S.C. 5121,
(bb) Arises from activities that present a political question.
(cc) Arises from private, as distinguished from government, transactions.
(dd) Is based solely on compassionate grounds.
(ee) Is for rent, damage, or other expenses or payments involving the
(ff) Is presented by a national, or a corporation controlled by a national, of a country at war or engaged in armed conflict with the US., or any country allied with such enemy country unless the appropriate settlement authority determines that the claimant is, and at the time of the incident was, friendly to the US. A prisoner of war or an interned enemy alien is not excluded as to a claim for damage, loss, or destruction of personal property in the custody of the US otherwise payable. Forward claims considered not payable under this paragraph (ff), with recommendations for disposition, to USAF/JACC.
(gg) Arises out of the loss, miscarriage, or negligent transmission of letters or postal matter by the US Postal Service or its agents or employees.
(hh) Is for damage to or loss of bailed property when the bailor specifically assumes such risk.
(ii) Is for property damage, personal injury, or death occurring in a foreign country to an inhabitant of a foreign country.
(jj) Is for interest incurred prior to the payment of a claim.
(kk) Arises out of matters which are in litigation against the US.
(ll) Is for attorney fees or costs in connection with pursuing an administrative or judicial remedy against the US or any of its agencies.
(mm) Is for bail, interest or inconvenience expenses incurred in connection with the preparation and presentation of the claim.
(nn) Is for a failure to use a duty of care to keep premises owned or under the control of the US safe for use for any recreational purpose, or for a failure by the US to give any warning of hazardous conditions on such premises to persons entering for a recreational purpose unless there is a willful or malicious failure to guard or warn against a dangerous condition, or unless consideration was paid to the US (including a nonappropriated fund instrumentality) to use the premises.
This section provides the existing law governing liability, measurement of liability and the effects of settlement upon awards.
(a)
(b)
(1)
(2)
(i) Foreign rules and regulations governing the operation of motor vehicles (rules of the road) are applied to the extent those rules are not specifically superseded or preempted by United States military traffic regulations.
(ii) Absolute or strict liability will not apply for claims not arising from noncombat activities.
(iii) Hedonic damages are not payable.
(iv) The collateral source doctrine does not apply.
(v) Joint and several liability does not apply. Payment will be made only upon the portion of loss, damage, injury or death attributable to the Armed Forces of the United States.
(vi) Future economic loss will be discounted to present value after deducting for federal income taxes and, in cases of wrongful death, personal consumption.
(c)
(i) Punitive damages.
(ii) Cost of medical or hospital services furnished at the expense of the United States.
(iii) Cost of burial expenses paid by the United States.
(d)
(1) The United States is not protected by the release executed by the claimant.
(2) The total amount received from such source is first deducted.
(a) A claimant may appeal the final denial of the claim. The claimant sends the request, in writing, to the settlement authority that issued the denial letter within 60 days of the date the denial letter was mailed. The settlement authority may waive the 60 day time limit for good cause.
(c) Where the settlement authority does not reach a final agreement on an appealed claim, he or she sends the entire claim file to the next higher settlement authority, who is the appellate authority for that claim. Any higher settlement authority may act upon an appeal.
(a)
(i) Settle claims for payment of $100,000 or less.
(ii) Settle claims for more than $100,000, pay the first $100,000, and report the excess to the Department of the Treasury for payment.
(iii) Deny claims in any amount.
(2) The Judge Advocate General, Deputy Judge Advocate General, Director of Civil Law, and the Chief, Deputy Chief and Branch Chiefs, Claims and Tort Litigation Staff are FCCs and have delegated authority to:
(i) Settle claims for payment of $100,000 or less.
(ii) Deny claims in any amount.
(3) The SJAs of the Air Force component commander of the US geographic combatant commands are FCC for claims arising in their respective combatant command Areas of Responsibility (AORs) and may deny claims of $50,000 or less and will pay claims filed in any amount when payment is for $50,000 or less.
(b)
(c)
(d)
(a)
Subpart P of this part outlines procedures for advance payments.
(a) A claim must be presented to the Air Force within 2 years after it accrues. It accrues when the claimant discovers or reasonably should have discovered the existence of the act that resulted in the claimed loss or injury.
(a) Foreign nationals. In a wrongful death case, if the decedent is an inhabitant of a foreign country, even though his or her survivors are US inhabitants, the FCA will apply.
(b) US nationals residing abroad, unless the claim arises from a benefit, privilege or service provided to them by the US Government, or they reside in the foreign country primarily because they are employed directly by the United States, or sponsored by or accompanying such a person, or employed by a US civilian contractor in furtherance of a contract with the US Government, or sponsored by or accompanying such a person.
(b) Persons determined to be US inhabitants. US inhabitants include dependents of US military personnel and US Government civilian employees.
(c) Foreign military personnel suffering personal injury, or death arising incident to service or pursuant to combined and/or joint military operations. Such operations include, but are not limited to, military exercises and United Nations, NATO, and other regional peacekeeping and humanitarian missions.
(e) National governments and their political subdivisions engaging in war or armed conflict with the United States or its allies. This includes factions that have not necessarily been recognized by the international community as a legitimate nation state.
The revision reads as follows:
(a) The incident causing the damage or injury must arise in a foreign country and be caused by noncombatant activities of the US Armed Forces or by the negligent or wrongful acts of civilian employees or military members of the Armed Forces.
(1) It is a prerequisite to US responsibility if the employee causing the damage or injury is a local inhabitant, a prisoner of war, or an interned enemy alien. These persons are “employees” within the meaning of the Foreign Claims Act (FCA) only when in the service of the United States. Ordinarily, a slight deviation as to time or place does not constitute a departure from the scope of employment. The purpose of the activity and whether it furthers the general interest of the United States is considered. If the claim arose from the operation or use of a US Armed Forces vehicle or other equipment by such a person, pay it provided local law imposes liability on the owner of the vehicle or other equipment in the circumstances involved.
(2) It is immaterial when the claim arises from the acts or omissions of any US Armed Forces member or employee not listed in § 842.64(c)(1). The Act imposes responsibility on the United States when it places a US citizen or non-US citizen employee in a position to cause the injury or damage. If the cause is a criminal act clearly outside the scope of employment, ordinarily pay the claim and consider disciplinary action against the offender.
The revisions and additions read as follows:
(a) Is waived under an applicable international agreement, or pursuant to an applicable international agreement, a receiving state should adjudicate and pay the claim. However, if a foreign government subject to such an international agreement disputes its legal responsibilities under the agreement, and the claimant has no other means of compensation, USAF/JACC may authorize payment.
(c) Is for attorney fees, punitive damages, a judgment or interest on a judgment, bail, or court costs. FCC should consider providing early notice to claimants that attorney fees are not payable as an item of damage under the FCA.
(f) Is a paternity claim.
(h) Results wholly from the negligent or wrongful act of the claimant or agent.
(m) Results from an action by an enemy, or directly or indirectly from an act of the US Armed Forces in combat, except that a claim may be allowed if it arises from an accident or malfunction incident to the operation of an aircraft
(o) Arises out of personal activities of family members, guests, servants, or activities of the pets of members and employees of the US Armed Forces.
(q) Is covered under US admiralty or maritime laws, unless authorized by The Judge Advocate General or Chief, Claims and Tort Litigation Staff.
(s) Is not in the best interest of the United States, is contrary to public policy, or otherwise contrary to the basic intent of the FCA. Claims considered not payable on this basis will be forwarded to USAF/JACC for final decision.
(t) Is presented by a national, or a corporation controlled by a national, of a country at war or engaged in armed conflict with the United States, or any country allied with such enemy country unless the settlement authority determines the claimant is, and at the time of the incident was, friendly to the United States. Exception: A prisoner of war or interned enemy alien is not excluded from filing a claim for damage, loss, or destruction of personal property within the US Armed Forces' custody if the claim is otherwise payable.
This section provides guidance to determine the applicable law for assessment of liability.
(a) In adjudicating FCA claims, settlement authorities will follow the law, customs, and standards of the country where the claim arose, except:
(1) Causation is determined based upon general principles of US tort law found in federal case law and standard legal publications.
(2) Joint and several liability does not apply. Payment is based solely on the portion of loss, damage, injury or death attributable to the US Armed Forces.
(3) If lost income or lost profits is recoverable under the law where the claim arose, they shall be limited to net lost income or net lost profits, taking into account appropriate deductions for taxes, regular business expenditures, and in the case of wrongful death, personal consumption during the loss period.
(b) Settlement authorities will not deduct compensation from collateral sources except for:
(1) Direct payments by a member or civilian employee of the US Armed Forces for damages (not solatia).
(2) Any payments recovered or recoverable from an insurance policy when premiums were paid, directly or indirectly, by the United States, or a member or civilian employee of the US Armed Forces; or when the member or employee has the benefit of the insurance (such as when a US member or employee borrows a vehicle of a local national, and the vehicle carries insurance for the benefit of any driver with permission to drive the vehicle).
This section provides the procedures used to reconsider a final denial.
(a) An FCC has the inherent authority to reconsider a final decision. The mere fact that a request for reconsideration is received does not obligate the settlement authority to reopen the claim.
(b) The FCC does not mention a reconsideration right in the original denial letter.
(c) A settlement authority must reconsider the final action when there is:
(1) New and material evidence concerning the claim; or
(2) Obvious errors in the original decision.
(d) The FCC must document in the claim file the reason for reconsideration.
(e) A FCC above the original settlement authority may direct a claim be forwarded to a higher FCC for reconsideration.
The Air Force has all the rights of subrogation, indemnity and contribution, as local law permits. However, settlement authorities will not seek contribution or indemnity from US military members or civilian employees whose conduct gave rise to US Government liability, or whenever it would be harmful to international relations.
This subpart governs Air Force actions in investigating, processing, and settling claims under the International Agreement Claims Act.
(a)
(d)
(e)
(f)
(g)
(a)
(b)
(c)
(d)
(b)
This subpart explains how to settle and pay claims against the United States, for property damage, personal injury, or death incident to the use of a government vehicle or any other government property on a government installation which are not payable under any other statute.
(a) * * *
(5) SJA of the Air Force component commands of the US geographic combatant commands.
The revision reads as follows:
(c) Arose from the use of a government vehicle at any place or from the use of other government property on a government installation.
(e) For pain and suffering or other general damages.
Do not pay a claim unless the claimant accepts the amount offered in full satisfaction of the claim and signs a settlement agreement to that effect, in which the claimant agrees to release any and all claims against the United States, its employees and agents arising from the incident in question. Use the settlement agreement approved for use by the Department of Justice for the settlement of FTCA claims, tailored to this claim.
The revisions read as follows:
(a) * * *
(1) * * *
(i) Settle or deny a claim in any amount. Settlements for payment of more than $500,000 are certified to Congress for payment.
(b) * * *
(3) * * *
(iv) The Chief and Deputy Chief, Claims and Tort Litigation Division.
(c) There is no time limit for submitting a request for reconsideration, but it is within the discretion of the settlement authority to decline to reconsider a claim based on the amount of time passed since the claim was originally denied.
This subpart, promulgated under the authority of 28 CFR 14.11, governs claims against the United States for property damage, personal injury, or death, from the negligent or wrongful acts or omission of Air Force military or civilian personnel while acting within the scope of their employment.
(a)
(1) The Judge Advocate General.
(2) The Deputy Judge Advocate General.
(3) The Director of Civil Law.
(4) The Division Chief of Claims and Tort Litigation.
(5) The Division Chief of Environmental Law and Litigation.
(b)
(c)
(d)
The claimant must sign a settlement agreement and general release before any payment is made.
When the Air Force is the proper agency to receive a claim pursuant to 28 CFR 14.2(b), for purposes of the provisions of 28 U.S.C. 2401(b), 2672 and 2675, a claim shall be deemed to have been presented when it is received by:
(a) The office of the Staff Judge Advocate of the Air Force installation nearest the location of the incident; or
(b) The Claims and Tort Litigation Division, 1500 West Perimeter Road, Suite 1700, Joint Base Andrews, MD 20762.
This subpart describes how to assert, administer, and collect claims for damage to or loss or destruction of government property and lost wages of Air Force servicemembers through negligent or wrongful acts. It does not cover admiralty, hospital recovery, or nonappropriated fund claims.
(a)
(i) The Judge Advocate General.
(ii) The Deputy Judge Advocate General.
(iii) The Director of Civil Law.
(iv) Chief, Deputy Chief, and Branch Chiefs, Claims and Tort Litigation Staff.
(2) Installation staff judge advocates have authority to assert claims in any amount, accept full payment on any claim and to compromise, suspend or terminate action on claims asserted for $25,000 or less.
(a) * * *
(2) Less than $100 but collection is practicable and economical.
(c) The claim is for property damage arising from the same incident as a hospital recovery claim.
(e) The claim is assertable as a counterclaim under an international agreement. (The claim should be processed under subpart G of this part).
(b) * * *
(2) Caused by a person who has accountability and responsibility for the damaged property under the Report of Survey system.
(f) Loss or damage caused by an employee of another federal agency while the employee was acting in the scope of his employment.
If collection efforts are unsuccessful, AFLOA/JACC may refer a claim to the appropriate US Attorney's Office or the Department of Justice for initiation of a lawsuit.
This subpart establishes policies and procedures for all administrative claims under the National Guard Claims Act for which the Air Force has assigned responsibility. Unless otherwise outlined in this subpart, follow procedures as outlined in subpart E of this part for claims arising out of noncombat activities.
(a)
(b)
(c)
(2)
(3)
(d)
The revisions read as follows:
(a) * * *
(4) The SJAs of the Air Force component commander of the US geographic combatant commands for claims arising within their respective combatant command areas of responsibility have delegated authority to settle claims payable or to deny claims filed for $25,000 or less.
(5) SJAs of GCMs in PACAF and USAFE have delegated authority to settle claims payable, and deny claims filed, for $15,000 or less.
(b)
(a)
(b)
Subpart P of this part sets forth procedures for such payments.
(a) A claim must be filed in writing within 2 years after it accrues. It is deemed to be filed upon receipt by The Judge Advocate General, USAF/JACC, or a Staff Judge Advocate of the Air Force. A claim accrues when the claimant discovers or reasonably should have discovered the existence of the act that resulted in the claimed loss. The same rules governing accrual pursuant to the Federal Tort Claims Act should be applied with respect to the National Guard Claims Act. Upon receipt of a claim that properly belongs with another military department, the claim is promptly transferred to that department.
(b) The statutory time period excludes the day of the incident and includes the day the claim was filed.
(c) A claim filed after the statute of limitations has run is considered if the US is at war or in an armed conflict when the claim accrues or if the US enters a war or armed conflict after the claim accrues, and if good causes shows how the war or armed conflict prevented the claimant from diligently filing the claim within the statute of limitations. But in no case will a claim be considered if filed more than two years after the war or armed conflict ends.
The following individuals may file a claim under this subpart.
(a) Owners of the property or their authorized agents may file claims for property damage.
(b) Injured persons or their duly authorized agents may file claims for personal injury.
(c) Duly appointed guardians of minor children or any other persons legally entitled to do so under applicable local law may file claims for minors' personal injuries.
(d) Executors or administrators of a decedent's estate or another person legally entitled to do so under applicable local law, may file claims based on:
(1) An individual's death.
(2) A cause of action surviving an individual's death.
(e) Insurers with subrogation rights may file claims for losses paid in full by them. The parties may file claims jointly or individually, to the extent of each party's interest, for losses partially paid by insurers with subrogation rights.
(f) Authorized agents signing claims show their title or legal capacity and present evidence of authority to present the claims.
(a) Citizens and inhabitants of the United States. US inhabitants includes dependents of the US military personnel and federal civilian employees temporarily outside the US for purposes of US Government service.
(b) US military personnel and civilian employees. Note: These personnel are not proper claimants for claims for personal injury or death that occurred incident to their service.
(c) Foreign military personnel when the damage or injury occurs in the US. Do not pay for claims under the MCA for personal injury or death of a foreign military personnel that occurred incident to their service.
(d) States, state agencies, counties, or municipalities, or their political subdivisions.
(e) Subrogees of proper claimants to the extent they have paid for the claim in question.
(a) Governments of foreign nations, their agencies, political subdivisions, or municipalities.
(b) Agencies and nonappropriated fund instrumentalities of the US Government including the District of Columbia government.
(c) Inhabitants of foreign countries.
(d) The state, territory and its political subdivisions whose Air National Guard member caused the loss.
(e) Subrogees of the claimants in paragraphs (a) through (d) of this section.
Claims arising from noncombat activities of the United States when caused by ANG members performing duty under 32 U.S.C. and acting within the scope of their employment, whether or not such injuries or damages arose out of their negligent or wrongful acts or omissions.
(a) Claims covered by the FTCA, FCA, IACA, 10 U.S.C. 2734a and 2734b, Air Force Admiralty Claims Act (AFACA), 10 U.S.C. 9801-9804, 9806, MCA, 10 U.S.C. 2733, or covered under the Military Personnel and Civilian Employees' Claims Act (MPCECA), 31 U.S.C. 3701, 3721.
(b) NGCA claims arising from noncombat activities in the US are not covered by the FTCA because more elements are needed to state an FTCA claim than are needed to state a claim under the NGCA for noncombat activities. All FTCA claims are based on elements of traditional tort liability (
(c) See subpart E of this part for other claims not payable.
(a)
(b)
(1)
(2)
(i) Absolute or strict liability will not apply for claims not arising from noncombat activities.
(ii) Hedonic damages are not payable.
(iii) The collateral source doctrine will not apply.
(iv) Joint and several liability does not apply. Payment will be made only upon the portion of loss, damage, injury or death attributable to the Armed Forces of the United States.
(v) Future economic loss will be discounted to present value after deducting for federal income taxes and, in cases of wrongful death, personal consumption.
(c)
(1) Punitive damages.
(2) Cost of medical or hospital services furnished at US expense.
(3) Cost of burial expenses paid by the United States.
(d)
(1) The United States is not protected by the release executed by the claimant.
(2) The total amount received from such source is first deducted.
This section explains the steps to take when a denial is appealed.
(a) A claimant may appeal the final denial of the claim. The claimant sends the request, in writing, to the settlement authority that issued the denial letter within 60 days of the date the denial letter was mailed. The settlement authority may waive the 60 day time limit for good cause.
(b) Upon receipt of the appeal, the original settlement authority reviews the appeal.
(c) Where the settlement authority does not reach a final agreement on an appealed claim, he or she sends the entire claim file to the next higher settlement authority, who is the appellate authority for that claim. Any higher settlement authority may act upon an appeal.
(d) The decision of the appellate authority is the final administrative action on the claim.
The Air Force becomes subrogated to the rights of the claimant upon settling a claim. The Air Force has the rights of contribution and indemnity permitted by the law of the situs or under contract. Do not seek contribution or indemnity from ANG members whose conduct gave rise to Government liability.
In the settlement of any claim pursuant to 32 U.S.C. 715 and this subpart, attorney fees will not exceed 20 percent of any award provided that when a claim involves payment of an award over $1,000,000, attorney fees on that part of the award exceeding $1,000,000 may be determined by the Secretary of the Air Force. For the purposes of this section, an award is deemed to be the cost to the United States at the time of purchase of a structured settlement, and not its future value.
This subpart explains how the United States asserts and settles claims for costs of medical care, against third parties under the Federal Medical Care Recovery Act (FMCRA) (10 U.S.C. 1095) and various other laws.
This section defines terms which are used within this subpart.
(a)
(h)
(i)
(a)
(1) The Judge Advocate General.
(2) The Deputy Judge Advocate General.
(3) The Director of Civil Law.
(4) Chief, Claims and Tort Litigation Staff and the Chief, MCRP.
(b)
(1) SJAs, when given Medical Cost Reimbursement (MCR) claims jurisdiction, are granted authority to waive, compromise, or settle claims in amounts of $25,000 or less. This authority may be re-delegated in writing with authority to re-delegate to subordinates.
(2) SJAs of numbered Air Forces, when given MCR claims jurisdiction, are granted authority to waive, compromise, or settle claims in amounts of $40,000 or less. This authority may be re-delegated in writing with authority to re-delegate to subordinates.
(3) SJAs of single base GCMs, the SJAs of GCMs in PACAF and USAFE, and the SJAs of each Air Force base, station, or fixed installation have delegated authority to compromise or waive claims for $15,000 or less and to accept full payment on any claim.
(c)
(d)
(e)
Telephonic approvals, in the discretion of the higher settlement authority, are authorized.
(f)
(1) Compromise or waiver of a claim for more than $300,000.
(2) Settlement previously referred to DOJ.
(3) Settlement where a third party files suit against the US or the injured party arising out of the same incident.
The following are considered nonassertable claims and should not be asserted:
(a)
(b)
(c)
(d)
(e)
(f)
(a) MCR personnel assert a claim against a tortfeasor or other third party using a formal letter on Air Force stationery. The assertion is made against all potential payers, including insurers. The demand letter should state the legal basis for recovery and sufficiently describe the facts and circumstances surrounding the incident giving rise to medical care. Applicable bases of recovery include US status as a third-party beneficiary under various types of insurance policies, workers' compensation laws, no-fault laws, or other Federal statutes, including Coordination of Benefits (COB) or FMCRA.
(b) The MCR authority must promptly notify the injured parties or their legal representatives, in writing, that the United States will attempt to recover from the third parties the reasonable value of medical care furnished or to be furnished and that they:
(1) Should seek advice from a legal assistance officer or civilian counsel.
(2) Must cooperate in the prosecution of all actions of the United States against third parties.
(3) Must furnish a complete statement regarding the facts and circumstances surrounding the incident which caused the injury.
(4) Must not execute a release or settle any claim which exists as a result of the injury without prior notice to the MCR authority.
(a) All cases that require forwarding to the DoJ must be routed through the Chief, MCRP. The MCR authority ensures that personnel review all claims for possible referral not later than two years after the date of the incident for tort based cases.
(b) The United States or the injured party on behalf of the United States must file suit within 3 years after an action accrues. This is usually 3 years after the initial treatment is provided in a federal medical facility or after the initial payment is made by Tricare, whichever is first.
The
Waivers and compromises of government claims can be made. This section lists the basic guidance for each action. (See this subpart for claims involving waiver and compromise of amounts in excess of settlement authorities' delegated amounts.)
(a)
(1) Risks of litigation.
(2) Questionable liability of the third party.
(3) Costs of litigation.
(4) Insurance (Uninsured or Underinsured Motorist and Medical Payment Coverage) or other assets of the tortfeasor available to satisfy a judgment for the entire claim.
(5) Potential counterclaim against the US.
(6) Jury verdict expectancy amount.
(7) Amount of settlement with proposed distribution.
(8) Cost of any future care.
(9) Tortfeasor cannot be located.
(10) Tortfeasor is judgment proof.
(11) Tortfeasor has refused to pay and the case is too weak for litigation.
(b)
(1) Permanent disability or disfigurement of the injured party.
(2) Decreased earning power of the injured party.
(3) Out of pocket losses to the injured party.
(4) Financial status of the injured party.
(5) Pension rights of the injured party.
(6) Other government benefits available to the injured party.
(7) An offer of settlement from a third party which includes virtually all of the thirty party's assets, although the amount is considerably less than the calculation of the injured party's damages.
(8) Whether the injured party received excessive treatment.
(9) Amount of settlement with proposed distribution, including reductions in fees or damages by other parties, medical providers, or attorneys in order to reduce the hardship on the injured party.
(c)
A settlement authority may reconsider its previous action on a request for waiver or compromise whether requested or not. Reconsideration is normally on the basis of new evidence or discovery of errors in the waiver submission or settlement, but can be based upon a re-evaluation of the claim by the settlement authority.
This subpart describes how to settle claims for and against the United States for property damage, personal injury, or death arising out of the operation of nonappropriated fund instrumentalities (NAFIs). Unless stated below, such claims will follow procedures outlined in other subparts of this part for the substantive law applicable to the particular claim. For example, a NAFI claim adjudicated under the Federal Tort Claims Act will follow procedures in this subpart as well as subpart K of this part.
(a)
(b)
(c)
(d)
Substantiated claims against NAFIs must not be paid solely from appropriated funds. Claims are sent for payment as set out in this subpart. Do not delay paying a claimant because doubt exists whether to use appropriated funds or NAFs. Pay the claim initially from appropriated funds and decide the correct funding source later.
(a)
(b)
(a) This subpart explains how to process certain administrative claims:
(1) Against the United States for property damage, personal injury, or death, arising out of Air Force assigned noncombat missions performed by the Civil Air Patrol (CAP), as well as certain other Air Force authorized missions performed by the CAP in support of the Federal Government.
(2) In favor of the United States for damage to US Government property caused by CAP members or third parties.
(b) Unless stated in this subpart, such claims will follow procedures outlined in other subparts of this part for the substantive law applicable to the particular claim. For example, a CAP claim adjudicated under the Military Claims Act will follow procedures in this subpart as well as subpart E of this part.
This subpart tells how to make an advance payment before a claim is filed or finalized under the Military Claims, Foreign Claims and National Guard Claims Acts.
(c) * * *
(4) SJAs of the Air Force component commander of the U.S. geographic combatant commands for claims arising within their respective combatant command areas of responsibility.
(b) The potential claimant has an immediate need amounting to a hardship for food, shelter, medical or burial expenses, or other necessities. In the case of a commercial enterprise, severe financial loss or bankruptcy will result if the Air Force does not make an advance payment.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is finalizing revisions to better define the requirements associated with conducting Method 303 training courses. Method 303 is an air pollution test method used to determine the presence of visible emissions (VE) from coke ovens. This action adds language that clarifies the criteria used by the EPA to determine the competency of Method 303 training providers, but does not change the requirements for conducting the test method. These revisions will help entities interested in conducting the required training courses by clearly defining the requirements necessary to do so.
The final rule is effective on December 22, 2016.
The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2014-0492. All documents in the docket are listed on the
Ms. Kim Garnett, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Assessment Division, Measurement Technology Group (Mail Code: E143-02), Research Triangle Park, NC 27711; telephone number: (919) 541-1158; fax number: (919) 541-0516; email address:
This action applies to you if you are a potential provider of Method 303 training services, someone seeking training to conduct Method 303, or a facility subject to Method 303.
This final action adds language that further clarifies the criteria used by the EPA to determine the competency of Method 303 training providers, but does not change the requirements for conducting the test method.
Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of this final rule is available by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by January 23, 2017. Under section 307(d)(7)(B) of the CAA, only an objection to this final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements that are the subject of this final rule may not be challenged later in civil or criminal proceedings brought by the EPA to enforce these requirements.
On October 27, 1993, we published Method 303 for determining VE from
Method 303 section 10.1 (40 CFR part 63, appendix B) presently states that
The first commenter suggested that the EPA should require the inspector to utilize digital imagery to document the visible emission observation. This comment is beyond the scope of the present action. This action does not involve the merits of Method 303, but rather training requirements in order for observers to be qualified to conduct Method 303 testing. No change to the rule was made in response to this comment.
The first commenter, also, stated that the quality of third-party Method 9 lectures is simply not good enough to ensure that any level of training is achieved, and seems to suggest that the Method 9 lecture is the only training involved. While attending the lecture portion of Method 9 is a prerequisite to receiving Method 303 certification, this requirement is to ensure individuals have a basic understanding of opacity measurement. It is not the sole training requirement. For example, the trainee must successfully complete the Method 303 training course, satisfy the field observation requirement, and demonstrate adequate performance and sufficient knowledge of Method 303 (see section 10.1). A trainee must also verify completion of at least 12 hours of field observation prior to attending the Method 303 certification course (see section 10.1.1). There are numerous other requirements as well. Therefore, the EPA believes an approved Method 303 training course will be comprehensive enough to assure that individuals who receive certification to determine VE from coke oven battery sources are proficient regardless of any perceived inadequacy of Method 9 lectures. No change to the rule was made in response to this comment.
The second commenter expressed concerns over the possible use of ad hoc panel members, stating these panel members may have inconsistent interpretations of Method 303 and different inspection practices at the plants. The EPA agrees with the comment regarding the make-up of the certification panel, and is amending the Method 303 rule language in section 10.1.3 to specify that the composition of the panel will be approved by the Administrator as part of the training course approval process. During this approval process, the experience of each panel member will be reviewed in order to ensure consistency.
This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA. This action better defines the requirements associated with conducting Method 303 training courses and does not impose additional regulatory requirements on sources.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action better defines the requirements associated with conducting Method 303 training courses and does not impose additional regulatory requirements on sources.
This action does not contain an unfunded mandate of $100 million or more for as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive Order 13175. This action clarifies the criteria used by the EPA to determine the competency of training providers, but does not change the requirements for conducting the test method. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This action would make corrections and updates to an existing protocol for assessing the precision and accuracy of alternative test methods to ensure they are comparable to the methods otherwise required; thus, it does not modify or affect the impacts to human health or the environment of any standards for which it may be used.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Air pollution control, Test methods.
For the reasons stated in the preamble, the EPA is amending title 40, chapter I of the Code of Federal Regulations as follows:
42 U.S.C. 7401
The revisions and additions read as follows.
5.2 Safety Training. Because coke oven batteries have hazardous environments, the training materials and the field training (section 10.0) shall cover the precautions required to address health and safety hazards.
10.1 Certification Procedures. This method requires only the determination of whether VE occur and does not require the determination of opacity levels; therefore, observer certification according to Method 9 in appendix A to part 60 of this chapter is not required to obtain certification under this method. However, in order to receive Method 303 observer certification, the first-time observer (trainee) shall have attended the lecture portion of the Method 9 certification course. In addition, the trainee shall successfully complete the Method 303 training course, satisfy the field observation requirement, and demonstrate adequate performance and sufficient knowledge of Method 303. The Method 303 training provider and course shall be approved by the Administrator and shall consist of classroom instruction, field training, and a proficiency test. In order to apply for approval as a Method 303 training provider, an applicant must submit their credentials and the details of their Method 303 training course to Group Leader, Measurement Technology Group (E143-02), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, NC 27711. Those details should include, at a minimum:
(a) A detailed list of the provider's credentials.
(b) An outline of the classroom and the field portions of the class.
(c) Copies of the written training and lecture materials, to include:
(1) The classroom audio-visual presentation(s).
(2) A classroom course manual with instructional text, practice questions and problems for each of the elements of the Method 303 inspection (
(3) A copy of the Method 303 demonstration video, if not using the one available at:
(4) Multiple-choice certification tests, with questions sufficient to demonstrate knowledge of the method, as follows: One (1) Initial certification test and three (3) third-year recertification tests (the questions on any one recertification test must be at least 25 percent different from those on the other recertification tests).
(5) A field certification checklist and inspection forms for each of the elements of the Method 303 inspection (
(6) The criteria used to determine proficiency.
(7) The panel members to be utilized (see Section 10.1.3) along with their qualifications.
(8) An example certificate of successful course completion.
10.1.1 A trainee must verify completion of at least 12 hours of field observation prior to attending the Method 303 certification course. Trainees shall observe the operation of a coke oven battery as it pertains to Method 303, including topside operations, and shall also practice conducting Method 303 or similar methods. During the field observations, trainees unfamiliar with coke battery operations shall receive instruction from an experienced coke oven observer who is familiar with Method 303 or similar methods and with the operation of coke batteries.
10.1.2 The classroom instruction shall familiarize the trainees with Method 303 through lecture, written training materials, and a Method 303 demonstration video. Successful completion of the classroom portion of the Method 303 training course shall be demonstrated by a perfect score on the initial certification test. Those attending the course for third-year recertification must complete one of the recertification tests selected at random.
10.1.3 All trainees must demonstrate proficiency in the application of Method 303 to a panel of three certified Method 303
Each panel member shall have at least 120 days experience in reading visible emissions from coke ovens. The visible emissions inspections that will satisfy the experience requirement must be inspections of coke oven battery fugitive emissions from the emission points subject to emission standards under subpart L of this part (
The panel shall observe the trainee in a series of training runs and a series of certification runs. There shall be a minimum of 1 training run for doors, topside port lids, and offtake systems, and a minimum of 5 training runs (
10.1.4 Those successfully completing the initial certification or third-year recertification requirements shall receive a certificate showing certification as a Method 303 observer and the beginning and ending dates of the certification period.
10.1.5 The training provider will submit to the EPA or its designee the following information for each trainee successfully completing initial certification or third-year recertification training: Name, employer, address, telephone, cell and/or fax numbers, email address, beginning and ending dates of certification, and whether training was for 3-year certification or 1-year recertification. This information must be submitted within 30 days of the course completion.
10.1.6 The training provider will maintain the following records, to be made available to EPA or its designee on request (within 30 days of a request):
(a) A file for each Method 303 observer containing the signed certification checklists, certification forms and test results for their initial certification, and any subsequent third-year recertifications. Initial certification records must also include documentation showing successful completion of the training prerequisites. Testing results from any interim recertifications must also be included, along with any relevant communications.
(b) A searchable master electronic database of all persons for whom initial certification, third-year recertification or interim recertification. Information contained therein must include: The observer's name, employer, address, telephone, cell and fax numbers and email address, along with the beginning and ending dates for each successfully completed initial, third-year and interim recertification.
10.1.7 Failure by the training provider to submit example training course materials and/or requested training records to the Administrator may result in suspension of the approval of the provider and course.
10.2 Observer Certification/Recertification. The coke oven observer certification is valid for 1 year. The observer shall recertify annually by reviewing the training material, viewing the training video and answering all of the questions on the recertification test correctly. Every 3 years, an observer shall be required to pass the proficiency test in section 10.1.3 in order to be certified. The years between proficiency tests are referred to as interim years.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of
This regulation is effective November 22, 2016. Objections and requests for hearings must be received on or before January 23, 2017, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0488, is available at
Robert McNally, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0488 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before January 23, 2017. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0488, by one of the following methods:
•
•
•
In the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or tolerance exemption and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . .” Additionally, FFDCA section 408(b)(2)(D) requires that EPA consider “available information concerning the cumulative effects of a particular pesticide's . . . residues and other substances that have a common mechanism of toxicity.”
EPA evaluated the available toxicity and exposure data on
An analytical method is not required for enforcement purposes for the reasons contained in the August 31, 2016, document entitled “Federal Food, Drug, and Cosmetic Act (FFDCA) Considerations for
This action establishes a tolerance exemption under FFDCA section 408(d) in response to a petition submitted to EPA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), or Executive
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance exemption in this action, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes. As a result, this action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, EPA has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, EPA has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require EPA's consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
An exemption from the requirement of a tolerance is established for residues of
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (Commission) adopts tailored service obligations for Alaska Communications Systems (ACS), a carrier serving a non-contiguous area that elected to receive nearly $20 million annually in Connect America Phase II frozen support amounts in lieu of model-based support.
Effective December 22, 2016, except for the certification in paragraph 33 which contains a new information collection requirement that will not be effective until approved by the Office of Management and Budget. The Commission will publish a document in the
Alexander Minard, Wireline Competition Bureau, (202) 418-7400 or TTY: (202) 418-0484.
This is a summary of the Commission's Order in WC Docket No. 10-90; FCC 16-143, adopted on October 24, 2016 and released on October 31, 2016. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street SW., Washington, DC 20554, or at the following Internet address:
1. In this Order, the Commission adopts tailored service obligations for Alaska Communications Systems (ACS), a carrier serving a non-contiguous area that elected to receive nearly $20 million annually in Connect America Phase II frozen support amounts in lieu of model-based support. The Commission finds these obligations are in the public interest and will advance the Commission's goal of ensuring universal availability of modern networks capable of providing voice and broadband service. Specifically, ACS will receive Phase II frozen support for a 10-year term and be required to offer voice service and broadband service at the same speed, latency, usage and pricing metrics as established for Phase II model-based carriers to at least 31,571 locations, primarily in census blocks identified as high-cost that are unserved by unsubsidized competitors, with limited exceptions. These service obligations strike the appropriate balance of ensuring Alaska consumers receive broadband service while also allowing ACS the flexibility to provide that service in a way that is logical, maximizes its network and is reasonable considering the unique climate and geographic conditions of its service territory.
2. As described below, the Commission adopts specific service obligations for ACS as a non-contiguous carrier electing to receive Phase II frozen support. The service obligations established today maintain many of the same public interest standards as those established for model-based price cap carriers, but allow flexibility in both buildout locations and the deployment schedule to account for the distinctive
3.
4. ACS stated in its comments in response to the
5. In the
6.
7. In the
8. ACS stated in its comments that it intends to meet the Phase II parameters for roundtrip latency of 100 ms or less. Further, ACS confirms that none of the areas where it proposes to deploy new broadband rely exclusively on the use of satellite backhaul to deliver service. Accordingly, there is no reason in the record before us to relax the latency standard for ACS' proposed Phase II deployment. The Commission adopts the same requirement as implemented by the Bureau for model-based carriers in the
9.
10. In the
11. ACS stated in its comments that it intends to meet the Phase II obligations for usage and did not suggest any relaxation of the usage requirement was necessary. ACS also later explained that it is not its practice or policy to impose a data usage cap on its customers, and ACS has no intention of limiting usage in the future. ACS proposes to be subject to the same usage standard as that required for those carriers accepting the offer of model-based support.
12. Earlier this year, the Bureau announced that, based on the most recent publicly available Measuring Broadband America data, 80 percent of cable subscribers nationwide are using 156 GB, and it therefore set the 2016 minimum usage allowance for eligible telecommunications carriers subject to broadband public interest obligations at 150 GB per month. The Commission concludes that ACS as a non-contiguous carrier should be subject to the same general approach as implemented by the Bureau for the carriers that accepted model-based support. Like the price cap carriers receiving model-based support, the Commission requires ACS to offer at least one service option that provides a usage allowance that meets or exceeds the usage level of 80 percent of cable or fiber-based fixed broadband subscribers, whichever is higher, according to the most current publicly available Measuring Broadband America usage data. This minimum will be announced
13.
14. In the
15. In a separate order, the Commission recently directed the Wireline Competition Bureau to establish an Alaska-specific reasonable comparability benchmark using data from its urban rate survey or other sources, as appropriate. The Commission will provide ACS the same two options for demonstrating compliance with this statutory requirement: by meeting the Alaska-specific benchmark or offering the same or lower rates in rural areas as it does in urban areas. As with model-based carriers, ACS will be required to certify annual compliance with this requirement as explained further below.
16. The Commission adopts a 10-year term of support for ACS's Phase II frozen support (2016-2025). As noted above, in the
17. ACS stated in its proposal that it will require a 10-year term of support to complete buildout to the stated number of locations and that buildout within five years is impossible. ACS explained that due to the harsh weather conditions of Alaska it is forced into a shortened construction season of three to four summer months throughout its service territory and thus a slower pace of progress. Further, ACS states it is challenged by decreased availability of experienced and qualified professionals knowledgeable in designing and deploying these services in Alaska—extending the time required to plan for deployment. Also, due to its remote northern location and unique construction limitations, ACS claims that it also confronts higher costs for broadband deployment. Ultimately, ACS argues these factors together require a 10-year term of support.
18. The Commission recognizes the climate and geographic challenges ACS faces in serving Alaska and find that adopting a 10-year term of support for ACS is in the public interest. While the Commission expects ACS to use its best efforts to expedite deployment, the Commission recognizes the shortened construction season and limited availability of experienced personnel is a unique limitation for ACS in Alaska that could slow the pace of buildout. Accordingly, the Commission adopts a 10-year term of support for ACS as a non-contiguous carrier electing Phase II frozen support, which will run from January 1, 2016, and end on December 31, 2025. For administrative reasons, the Commission finds it necessary to conform the term of support to the calendar year, to align reporting and other monitoring activities with that of other carriers. As discussed more completely below, ACS will be required to report its proposed list of locations by October 1, 2018. In year eight, the Commission expects it will conduct a rulemaking to determine how support will be awarded to serve these locations after the end of the ten-year period.
19. In the
20. ACS elected to receive Phase II frozen support for its entire service territory, and therefore, none of the census blocks in its service territory are eligible for the Phase II competitive bidding process. Below, the Commission addresses the specific geographic parameters for ACS' provision of voice and broadband service within its existing designated service territory and provide ACS with flexibility in its broadband deployment to account for the unique nature of serving Alaska. The Commission also provides ACS with forbearance relief consistent with the relief it provided other price cap carriers.
21.
22. ACS proposes to use Phase II frozen support to offer service to a minimum of 26,000 locations that are not served by any provider, which would occur in those census blocks that were identified as high-cost by the cost model with certain exceptions discussed below. Initially, ACS proposed to offer service to 29,418 locations but later revised that number to 26,000. ACS explains that its initial calculation was based on CAM v4.1.1 and the revision was due to a recalculation using newer data from CAM v4.2, which excluded locations served by subsidized competitors. ACS then adjusted its initial estimate to exclude the off-road census blocks in the Alaskan Bush that ACS does not
23. While ACS proposes to establish a deployment obligation with a minimum number of locations, it does not provide a specific list of proposed census blocks or locations at this time. Instead, ACS suggests that two years will be necessary for planning, coordination and identifying the total number and precise locations for buildout. ACS claims that it needs this time to “fully explore the most efficient options for network infrastructure deployment.” Once the pre-planning and coordination stage is completed, ACS intends to submit a list to the Commission of its proposed locations.
24. Based on our review of June 2015 FCC Form 477 data for the number of high-cost locations, the Commission finds that requiring ACS to serve 31,571 locations is reasonable, given the other flexibility provided in this Order. While the Commission hopes that ACS will find after it engages in this planning process that it is possible to offer broadband services to more than 31,571 locations with the amount of funding provided, the Commission adopts this number as a strict minimum. Additionally, while ACS has proposed to select these locations using coverage data from the 2014 National Broadband Map, the Commission instead requires ACS to select its locations in blocks not served by a qualifying competitor using the June 2015 FCC Form 477 data. The Commission also adopts a challenge process for locations in blocks where another provider is reporting service, and for those blocks it requires ACS to utilize more recent publicly available data. This will ensure that support is targeted appropriately to those areas where there are no other providers offering broadband service meeting the Commission's requirements for high-cost support.
25. Consistent with the approach taken with respect to other price cap carriers, the Commission does not dictate which
26.
27. In the
28. ACS requests the flexibility to substitute up to 25 percent of its eligible locations with unserved locations in partially-served census blocks. ACS explains these substitutions are necessary, because even though the census block is treated as served, due to the geography and topography of the census block, some specific locations within a census block are not in fact served by any carrier. Compared to other states, Alaska has relatively large census blocks. ACS argues it would be more logical and economically efficient for ACS to serve these “stranded” customer locations, because in many cases these locations are very near or contiguous to ACS service territory and are clearly not easily served by the competitor given the particular geography of the census block. ACS proposes a public challenge process to ensure the substituted locations are actually unserved. ACS promises the substitutions would be made conservatively and would be limited to unserved locations in eligible census blocks in outlying areas—primarily surrounding Fairbanks and on the Kenai Peninsula.
29. In the
30.
31.
32. ACS requests the flexibility to substitute up to 10 percent of its eligible locations with unserved locations in census blocks that were not deemed high-cost by the cost model. ACS argues that the cost model did not accurately capture all of the costs of serving particular census blocks in Alaska, and excluded unserved areas and customers that are truly rural and where the cost to deploy service is in-fact high. For example, ACS explains there are several instances where all the census blocks surrounding a location are identified as high-cost,
33. The Commission grants ACS the flexibility to count towards its service obligation up to 2,714 locations in census blocks identified by the model as low-cost, so long as those locations are unserved with broadband by either ACS or a competitor, and the “low-cost” census block is immediately adjacent to high-cost census blocks. The Commission finds that it is in the public interest to permit ACS to use its Phase II frozen support to deploy to these unserved locations given the unique geographic characteristics of Alaska. However, as suggested by ACS, the Commission finds a limitation is appropriate. The model calculates that there are 2,714 low-cost, unserved, on-road locations, using June 2015 FCC Form 477 data. As such, the Commission finds it is reasonable and in the public interest to limit ACS to no more than 2,714 location substitutions in such census blocks that are not identified as high-cost by the model. Further, for each location ACS substitutes under the terms of this flexibility, the Commission requires ACS to certify that deployment to that location was, in fact, high cost. Specifically, the Commission requires ACS to certify that the capital expenditures (capex) it incurs to build out to each location within a qualifying “low-cost” census block was at least $5,000. According to the model, the average capital expenditure for high-cost locations in Alaska is at least $5,007.95, so the Commission concludes that ACS should only be able to count towards its total these locations if they in fact require at least this amount of capex to newly serve the location. This certification will be due along with the annual location report. ACS may be required to produce documentation regarding its actual capex for such locations to support its certification when USAC validates completion of its deployment obligations or in the course of an audit. Any location that cannot meet this certification will not be counted toward the minimum location requirement.
34.
35.
36.
37. Above the Commission adopted a 10-year term of support. The Commission also acknowledged the unique challenges that ACS confronts as a non-contiguous carrier building in Alaska. However, the Commission also wants to ensure that ACS begins construction no later than 2019. Accordingly, the Commission adopts a timeframe that requires ACS to complete its planning by October 1, 2018, with the remaining time to complete deployment of voice and broadband-capable networks. As such, the Commission will require ACS to complete initial planning and submit its proposed list of census blocks and locations to the Commission by October 1, 2018. Thereafter, as explained above, the Commission will conduct an efficient challenge process for those locations in partially served blocks to determine final deployment locations, which the Commission anticipates will be completed during first quarter 2019. ACS will then be able to commence deployment in those partially served census blocks no later than the summer of 2019. Full completion of the planning process is not a requisite, however, for it to begin deployment in the high-cost census blocks not subject to a challenge process. The Commission emphasizes that ACS is not precluded from, and indeed it is encouraged to begin, extending broadband to unserved locations in those high-cost blocks (the high-cost blocks lacking an unsubsidized competitor according to the June 2015 FCC Form 477 data).
38. The Commission is not persuaded that ACS should only be subject to two intermediate milestones for the 10-year term. The Commission recently adopted evenly spaced interim deployment milestones for rate-of-return carriers electing to receive Phase II model-based support. For similar reasons, the Commission concludes here that annual interim milestones are appropriate for ACS. This will enable the Commission to monitor ACS' progress throughout the term of support. Accordingly, the Commission adopts the following timeline for offering broadband service meeting the Commission's requirements: 30 percent of all locations by the end of 2018, 40 percent by the end of 2019, 50 percent by the end of 2020, 60 percent by the end of 2021, 70 percent by the end of 2022, 80 percent by the end of 2023, 90 percent by the end of 2024, and all locations by the end of 2025.
39.
40. In the
41. Consistent with the general approach adopted for price cap carriers accepting model-based support in the
42. The Commission requires ACS to comply with our existing high-cost reporting and oversight mechanisms, unless otherwise modified as described below. In the
43.
44.
45. Additionally, price cap ETCs' geolocation data and associated deployment certifications no longer be are provided pursuant to the deadlines specified in section 54.313. The penalties in section 54.313(j) for failure to timely file that information do not apply absent additional conforming modifications to our rules. Therefore, as is the case for rate-of-return ETCs, the penalties for price cap ETCs to fail to timely file geolocation data and associated deployment certifications are located in new section 54.316(c).
46. The Commission adopts similar reporting obligations for ACS as a recipient of Phase II frozen high-cost support. ACS will be required to submit the requisite information to USAC no later than March 1 of each year, for locations where they offered service in the prior year. Similar to the rate-of-return carriers, ACS will be required to separately identify the number of locations where it is offering speeds of at least 10/1 Mbps or 25/3 Mbps. While ACS's deployment obligation is to offer at least 10/1 Mbps broadband to the requisite number of locations, depending on network design, some of those locations may receive better than 10/1 Mbps service, and the Commission sees value in tracking progress at the higher speed tier as well. As with other carriers subject to obligations to report their progress in broadband deployment, ACS is encouraged to submit information on a rolling basis throughout the year, as soon as service is offered, to avoid filing all of its locations at the deadline.
47.
48.
49. The Commission also finds that ACS's Phase II frozen support is sufficient to carry out its deployment obligations as well as maintain existing voice service in the high-cost and extremely high-cost census blocks in its territory, and the Commission clarifies that ACS may use its support for either such purpose.
50. This Order contains a modified information collection, which will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new information collection requirement contained in this Order. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, it previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees. The Commission describes impacts that might affect small businesses, which includes most businesses with fewer than 25 employees, in the Supplemental Final Regulatory Flexibility Analysis (FRFA) below,
51. The Commission previously sent a copy of the
52. As required by the Regulatory Flexibility Act of 1980 (RFA), as amended, an Initial Regulatory Flexibility Analyses (IRFA) was incorporated in the
53. In this Order, the Commission adopts tailored public service obligations for Alaska Communications Systems (ACS), a price-cap carrier serving Alaska, to support the deployment of voice and broadband-capable networks in Alaska.
54. In the
55. In this Order, the Commission adopts targeted changes to the price cap model-based support public service obligations to accommodate the unique circumstances of ACS service in Alaska. Specifically, the Commission makes an adjustment to the term of support, establish a minimum number of locations where service must be offered, establish a planning phase deadline, adopt revised interim deployment milestones, and allow a limited number of location substitutions—allowing ACS to use its support to provide service in locations that are in partially-served census blocks and “high-cost” locations in “low-cost” census blocks. The Commission establishes a challenge process for determining the substitute locations in partially-served census blocks, and amend the location certification requirement to effectively monitor substitutions in “low-cost” census blocks. The Commission also forbears from the federal high-cost universal service obligation of ACS to offer voice service in low-cost areas where it does not receive high-cost support, in areas served by an unsubsidized competitor, and in areas where ACS is replaced by another eligible telecommunications carrier (ETC).
56. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rule(s) as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rule(s) in this proceeding.
57. As noted above, a FRFA was incorporated into the
58. The rule changes in this Order will affect one entity, Alaska Communications Systems, which fits the descriptions of entities outlined in the FRFA.
59. The data, information and document collection required by the
60. In this Order, the Commission amends the reporting requirements by requiring ACS to file a report at the conclusion of its planning phase, and no later than October 1, 2018. This report will provide the Commission with a list of the proposed locations to which ACS intends to offer service over the 10-year support term.
61. In this Order, the Commission amends the interim milestones reports to accommodate the extended term. ACS will be provided support for a 10-year term and will be required to offer voice and broadband service meeting certain latency, data usage, speed and reasonably comparable rate obligations to a certain number of locations. Accordingly, ACS will be required to report that it has built 30 percent of all locations by the end of 2018, 40 percent by the end of 2019, 50 percent by the end of 2020, 60 percent by the end of 2021, 70 percent by the end of 2022, 80 percent by the end of 2023, 90 percent by the end of 2024, and all locations by the end of 2025. Should ACS fail to meet these milestones, it will be subject to certain non-compliance measures, including support reductions and reporting.
62. Lastly, in this Order, the Commission amends the collection to include a new cost certification requirement. In that certification, ACS must certify that the capital investment cost incurred to newly extend service to a location in a “low-cost” census block is at least $5,000. ACS may be required to maintain documentation regarding this certification. The Commission concludes that requiring this certification will ensure that the Commission can monitor compliance with the section 254(b) principle that “[c]onsumers in all regions of the Nation . . . including . . . those in . . . high cost areas, should have access to telecommunications and information services . . .”
63. The analysis of the Commission's efforts to minimize the possible significant economic impact on small entities as described in the previous FRFA in this proceeding is hereby incorporated by reference. It is unchanged by this Order, save the addition of the reporting and certification obligations described above. This increased burden is outweighed by the importance of monitoring the use of the public's funds and ensuring support is used for its intended purpose.
64. The Commission notes that the reporting and certification requirements it adopts for ACS are tailored to its unique circumstance. Additionally, the information that the Commission is requiring ACS report and certify is information it expects the company will already be tracking to ensure its system is built economically and effectively.
65.
66.
67.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice on applicability.
Section 219(d) of the Motor Carrier Safety Improvement Act of 1999 (MCSIA) restricted Mexico-domiciled motor carriers from leasing commercial motor vehicles (CMVs) to U.S. carriers to transport property into the United States until the international obligations under the North American Free Trade Agreement (NAFTA) chapter on cross-border trade in services were met. Given FMCSA's acceptance of applications for long-haul operating authority from Mexico-domiciled motor carriers following the conclusion of the U.S.-Mexico Cross Border Long-Haul Trucking Pilot Program, the obligations are fulfilled and the restriction is no longer applicable.
Effective November 22, 2016.
Bryan Price, Chief, North American Borders Division, FMCSA, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. Telephone (202) 366-2995; email
The Motor Carrier Safety Improvement Act of 1999
Section 219(d) prohibited the leasing by a Mexico-domiciled motor carrier (lessor) of its equipment to a U.S. motor carrier (lessee) for operation beyond the commercial zones on the U.S.-Mexico border. This restriction specifically applied “Before the implementation of the land transportation provisions of NAFTA . . .” The second clause in section 219(d) further states that this prohibition exists “during any period in which a suspension, condition, restriction or limitation imposed under section 13902(c) of title 49 . . . applies to a [long-haul] motor carrier (as defined in section 13902(e)).” Section 13902(c) addresses “Restrictions on motor carriers domiciled in or owned or controlled by nationals of a contiguous foreign country.”
Section 13902(c)(3) provides that only “The President” or his delegate may “remove or modify in whole or in part any action taken under paragraph (1)(A) if the President or such delegate determines that such removal or modification is consistent with the obligations of the United States under a trade agreement or with United States transportation policy.” In November 2002, President Bush issued a presidential memorandum lifting the moratorium on granting long-haul operating authority to qualified Mexico-domiciled motor carriers of property and of passengers.
In March 2002, FMCSA issued Interim Final Rules that fulfilled a Congressional mandate to ensure the safe operation of Mexican vehicles in the United States. Several organizations filed suit in the U.S. Court of Appeals for the Ninth Circuit challenging those rules. The Court set aside the rules, and the United States sought Supreme Court review of the decision. In 2004, the Supreme Court reversed the Ninth Circuit and upheld the Agency's Interim Final Rules (
Congress, however, subsequently passed Section 6901 of the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007,
From October 14, 2011, through October 10, 2014, FMCSA conducted a pilot program to determine the ability of Mexican motor carriers to operate safely in the United States. FMCSA delivered the requisite report to Congress in January, 2015. On January 15, 2015 (80 FR 2179), FMCSA announced that it would begin accepting and processing applications for long-haul operating authority from Mexico-domiciled property carriers under 49 U.S.C. 13902.
Because Mexico-domiciled motor carriers may now apply for and receive long-haul operating authority, the land transportation provisions of NAFTA for property carriers have been implemented. Therefore, the previous leasing restrictions are not applicable, consistent with Section 219(d) of MCSIA.
This notice is being issued to prevent inconsistent enforcement of a law that is no longer applicable. It also serves to inform all motor carriers and the general public that, in accordance with NAFTA and MCSIA, Mexican-domiciled motor carriers (lessors) are allowed to lease their equipment to U.S. motor carriers (lessees) regardless of the destination of the cargo, as long as the carriers meet the requirements of 49 CFR part 376. Included in part 376 are requirements that the “authorized carrier” (in this case, the U.S. motor carrier) assume “complete responsibility for the operation of the equipment for the duration of the lease” [49 CFR 376.12(c)]. These types of leasing arrangements are compliant with MCSIA and the Agency's regulations.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; approval of quota transfer.
NMFS announces its approval of a transfer of 2016 commercial bluefish quota from the State of Maine to the State of Rhode Island. The approval of the transfer complies with the Atlantic Bluefish Fishery Management Plan quota transfer provision. This announcement also informs the public of the revised commercial quotas for Maine and Rhode Island.
Effective November 21, 2016, through December 31, 2016.
Reid Lichwell, Fishery Management Specialist, (978) 281-9112.
Regulations governing the Atlantic bluefish fishery are found in 50 CFR 648.160 through 648.167. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through Florida. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.162.
The final rule implementing Amendment 1 to the Bluefish Fishery Management Plan was published in the
Maine and Rhode Island have requested the transfer of 32,000 pounds (lb) (14,515 kilogram (kg)) of bluefish commercial quota from Maine to Rhode Island. Both states have certified that the transfer meets all pertinent state requirements. This quota transfer was requested by Rhode Island to ensure that its 2016 quota would not be exceeded. The Regional Administrator has approved this quota transfer based on his determination that the criteria set forth in § 648.162(e)(1)(i) through (iii) have been met. The revised bluefish quotas for calendar year 2016 are: Maine, 655 lb (297 kg); and Rhode Island, 464,561 lb (210,721 kg). These quota adjustments revise the quotas specified in the final rule implementing the 2016-2018 Atlantic Bluefish Specifications published on August 4, 2016 (81 FR 51370), and reflect all subsequent commercial bluefish quota transfers completed to date. For information of previous transfers for fishing year 2016 visit:
This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is closing the U.S. pelagic longline fishery for bigeye tuna in the western and central Pacific Ocean because the fishery will reach the 2016 allocation limit for the Commonwealth of the Northern Mariana Islands (CNMI). This action is necessary to comply with regulations managing this fish stock.
Effective 12:01 a.m. local time December 1, 2016, through December 31, 2016.
Ariel Jacobs, NMFS PIRO Sustainable Fisheries, 808-725-5182.
On July 22, 2016, NMFS restricted the retention, transshipment and landing of bigeye tuna captured by longline gear in the western and central Pacific Ocean (WCPO) because the U.S. longline fishery reached 2016 U.S. bigeye tuna limit of 3,554 mt (81 FR 45982, July 15, 2016). 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 September 9, 2016, NMFS specified a 2016 catch limit of 2,000 mt of longline-caught bigeye tuna for the U.S. territories of American Samoa, Guam and the Commonwealth of the Northern Mariana Islands or CNMI (81 FR 63145, September 14, 2016). NMFS also authorized each territory 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 September 9, 2016, 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 April 14, 2016. NMFS reviewed the agreement 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 (81 FR 64356, September 20, 2016). 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 September 9, 2016. 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
Effective 12:01 a.m. local time December 1, 2016, through December 31, 2016, 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 2016 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 15, 2016. 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 July 22, 2016, as a result of the U.S. longline fishery reaching the 2016 U.S. bigeye tuna limit of 3,554 mt (81 FR 45982, July 15, 2016) shall remain valid and effective.
If, prior to December 1, 2016, NMFS receives a valid specified fishing agreement between a U.S. longline fishing vessel(s) and another U.S. territory, any vessel included in the CNMI/QMI agreement that is also included in the subsequent agreement may continue to transship, retain, and land bigeye tuna caught by longline gear in the WCPO. Additionally, if any such vessel is engaged in a longline fishing trip in the WCPO on December 1, 2016, that vessel would not need to return to port before December 15, 2016. NMFS would announce any valid specified fishing agreement in the
There is good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment on this action, because it would be impracticable and contrary to public interest, as discussed below. 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 2016 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 April 14, 2016.
NMFS forecasted that the fishery would reach the 2016 CNMI allocation limit by December 1, 2016. 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 2016 catch and progress of the fishery in reaching the U.S. bigeye tuna 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 under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for this temporary rule. NMFS must close the fishery 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 before the limit is reached 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.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; inseason adjustment.
NMFS is adjusting the 2016 D seasonal apportionments of the total allowable catch (TAC) for pollock in the Gulf of Alaska (GOA) by re-apportioning unharvested pollock TAC in Statistical Areas 610, 620, and 630 of the GOA. This action is necessary to provide opportunity for harvest of the 2016 pollock TAC, consistent with the goals and objectives of the Fishery Management Plan for Groundfish of the Gulf of Alaska.
Effective 1200 hours, Alaska local time (A.l.t.), November 17, 2016, until 2400 hours A.l.t., December 31, 2016.
Josh Keaton, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council (Council) under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The annual pollock TACs in Statistical Areas 610, 620, and 630 of the GOA are apportioned among four seasons, in accordance with § 679.23(d)(2). Regulations at § 679.20(a)(5)(iv)(B) allow the underharvest of a seasonal apportionment to be added to subsequent seasonal apportionments, provided that any revised seasonal apportionment does not exceed 20 percent of the seasonal apportionment for a given statistical area. Therefore, NMFS is increasing the D season
The D seasonal apportionment of the 2016 pollock TAC in Statistical Area 610 of the GOA is 24,421 metric tons (mt) as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016). In accordance with § 679.20(a)(5)(iv)(B), the Administrator, Alaska Region, NMFS (Regional Administrator), hereby increases the D season apportionment for Statistical Area 610 by 3,508 mt to account for both the Statistical Area 610 C season overharvest of 1,376 mt and the Statistical Areas 620 C season TAC underharvest. This increase is in proportion to the estimated pollock biomass and is not greater than 20 percent of the D seasonal apportionment of the TAC in Statistical Area 610. Therefore, the revised D seasonal apportionment of the pollock TAC in Statistical Area 610 is 27,929 mt (24,421 mt plus 3,508 mt).
The D seasonal apportionment of the pollock TAC in Statistical Area 620 of the GOA is 15,402 mt as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016). In accordance with § 679.20(a)(5)(iv)(B), the Regional Administrator hereby increases the D seasonal apportionment for Statistical Area 620 by 3,080 mt to account for the underharvest of the TAC in Statistical Areas 620 in the C season. This increase is not greater than 20 percent of the D seasonal apportionment of the TAC in Statistical Area 620. Therefore, the revised D seasonal apportionment of the pollock TAC in Statistical Area 620 is 18,482 mt (15,402 mt plus 3,080 mt).
The D seasonal apportionment of pollock TAC in Statistical Area 630 of the GOA is 19,822 mt as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016). In accordance with § 679.20(a)(5)(iv)(B), the Regional Administrator hereby increases the D seasonal apportionment for Statistical Area 630 by 3,964 mt to account for the underharvest of the TAC in Statistical Areas 620 and 630 in the C season. This increase is in proportion to the estimated pollock biomass and is not greater than 20 percent of the D seasonal apportionment of the TAC in Statistical Area 630. Therefore, the revised D seasonal apportionment of pollock TAC in Statistical Area 630 is 23,786 mt (19,822 mt plus 3,964 mt).
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement 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 requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would provide opportunity to harvest increased pollock seasonal apportionments. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of November 16, 2016.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Small Business Administration.
Notice of proposed rulemaking.
The U.S. Small Business Administration (SBA) is seeking comments on this Notice of Proposed Rulemaking (NPRM) regarding the Women's Business Center (WBC) Program. An Advance Notice of Proposed Rulemaking (ANPRM) was published on April 22, 2015, which received eight comments. This NPRM is being issued to continue the consultative process with stakeholders to examine the proposed WBC regulations. This NPRM also proposes to codify policy and procedural changes that have been included in the Notice of Award, such as language on risk determination as required by, limitations on carryovers, who is considered key personnel and a reduction in the reporting requirements. Implementing these regulations will result in standardization and transparency to the delivery of the WBC Program.
Comments must be received on or before January 23, 2017.
You may submit comments, identified by RIN 3245-AG02, by one of the following methods:
(1)
(2)
(3)
(4)
The SBA will post all comments on
Sheila Williams, Lead Program Analyst, U.S. Small Business Administration, 409 3rd Street SW., Washington, DC 20416, telephone number (202) 205-7285 or
The Women's Business Center (WBC) Program was created under the authority of Title II of the Women's Business Ownership Act of 1988(Pub. L. 100-533). The WBC Program authority is now codified in section 29 of the Small Business Act (the Act), 15 U.S.C. 656. The initial Demonstration Training Program, later renamed the WBC Program, was created with the congressional intent to remove barriers to the creation and development of small businesses owned and controlled by women and to stimulate the economy by aiding and encouraging the growth and development of such businesses. The specific objectives of the Demonstration Training Program were to provide long-term Training and Counseling to potential and current women business owners, including those who are Socially and Economically Disadvantaged as defined in 13 CFR 124.103 and 124.104.
Since its creation, the Women's Business Center Program has changed through a number of public laws that have turned the WBC Program from a Demonstration Training Program into a permanent program. The laws that have impacted the WBC Program include: The Women's Business Development Act of 1991 (Pub. L. 102-191); The Women's Business Centers Sustainability Act of 1999 (Pub. L. 106-165): U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007 (Pub. L. 110-28); and, The Small Business Jobs Act of 2010 (Pub. L. 111-240).
Section 29 of the Act, 15 U.S.C. 656, authorizes the SBA to provide financial assistance to private nonprofit organizations to conduct 5-year projects for the benefit of small business concerns owned and controlled by women. The Act further authorizes SBA to renew a grant for additional 3-year periods and provides that there are no limitations on the number of times a grant may be renewed.
On April 22, 2015, the SBA published an Advance Notice of Proposed Rulemaking (ANPRM) soliciting comments on the interpretations of statutory language, including “distinct population that would otherwise not be served,” “whose services are targeted to women” and “full-time program director or program manager to manage the program” (80 FR 22434). The SBA also requested comments on how to define what is acceptable for activities that fall under “in-kind,” what guidelines grantees should use in determining reasonable costs associated with in-kind activities, acceptable guidelines for documenting in-kind match, selection criteria used in deciding whether to award an initial WBC grant, guidelines SBA should use in evaluating “the experience of the Applicant Organization” and “the proposed location for the women's business center,” and what an appropriate “minimum amount of time” would be to commence operating as a women's business center following receipt of an award. Comments from the ANPRM have been considered in the drafting of these proposed regulations.
Currently, there are over 100 nonprofit entities that participate in the WBC Program and provide services as described in the Act. These participants are known as SBA Women's Business Centers (WBCs) and receive annual Federal funding limited by the authority of the Act and subject to the appropriations of Congress and the nonprofit's ability to provide the required Matching Funds.
Through its authority, the SBA's Office of Women's Business Ownership
The proposed rule would incorporate the SBA's oversight of the WBC Program into regulations in a new Part 131 of the SBA's regulations by: (A) Creating standard definitions for the program (13 CFR 131.110); (B) incorporating program-participation requirements and application procedures (13 CFR 131.300, 13 CFR 131.400); (C) incorporating financial-management and grant-administration requirements (13 CFR 131.500); (D) incorporating reporting requirements (13 CFR 131.600); (E) incorporating oversight and programmatic and financial-examination provisions (13 CFR 131.700 and 13 CFR 131.720); (F) incorporating procedures for Dispute resolution (13 CFR 131.840), and suspension, termination and non-renewal of a grant (13 CFR 131.830); and G) privacy requirements (13 CFR 131.900).
The WBC Program was created under the authority of Title II of the Women's Business Ownership Act of 1988 (Pub. L. 100-533) to remove barriers to the creation and development of small businesses owned and controlled by women and to stimulate the economy by aiding and encouraging the growth and development of such businesses. Since its creation, the WBC Program has changed through a number of public laws that have turned the WBC Program from a Demonstration Training Program into a permanent program. The WBC Program has grown and evolved to provide a variety of services to many entrepreneurs, ranging from those interested in starting businesses to those looking to expand existing businesses.
Over the last several years, the SBA has incorporated processes to monitor the WBC Program, including conducting financial examinations required by statute. The SBA proposes to implement this rule to incorporate its oversight of the WBC Program into regulations to ensure consistency in application and provide transparency for applicants and participants.
This section defines 57 words and phrases used in the management and oversight of the WBC Program. These definitions have been consolidated from existing documents, including Program Announcements and Cooperative Agreements, to ensure consistency and clarity within the WBC Program.
Through the ANPRM, commenters raised concerns on whether Distinct Populations were limited to Socially and Economically Disadvantaged populations. Under this proposed rule, definitions are provided for Distinct Population and Socially and Disadvantaged populations. Under the statute, 15 U.S.C. 656, a representative portion of clients should be Socially and or Economically Disadvantaged women. However, WBCs are expected to serve all women entrepreneurs and not just those that are Socially and Economically Disadvantaged.
This proposed section codifies the types of organizations that are eligible by statute to participate in the WBC Program and those organizations that are prohibited from participating in the program. Section 29 of the Act, 15 U.S.C. 656, identifies eligible entities as private nonprofit organizations that are described in section 501(c) of title 26 and exempt from taxation under section 501(a) of that title.
This section describes how SBA proposes to provide financial assistance to private nonprofit organizations to conduct projects for the benefit of small business concerns owned and controlled by women, as authorized in 15 U.S.C. 656. In addition, under 15 U.S.C. 656(5), the SBA may renew a grant for an additional 3-year period, if the nonprofit organization submits an Application for such renewal at such time, in such manner, and accompanied by such information as the SBA establishes. This section describes the SBA's proposed process for renewal applicants to continue in the WBC Program.
This proposed section codifies the statutory requirement at 15 U.S.C. 656, on the process by which the SBA must issue Notices of Award, which outline the terms and conditions of the awards to the WBC Recipient Organizations. To ensure that the Recipient Organization maintains clear and separate functions from the WBC, as stated in the Cooperative Agreement, this rule proposes to require that the Recipient Organization manage the WBC Program as a separate entity within its organization, consistent with 2 CFR part 303, Internal Controls.
Historically, Women's Business Centers that have established partnerships in the community in conjunction with an advisory board have had less difficulty working within the community and meeting the match requirements of the program. This section proposes to require that each WBC establish an advisory board that will confer with and provide recommendations to the WBC Program Director on matters pertaining to the operation of the WBC and assist the WBC in raising Matching Funds.
This section also provides a proposed description of WBC facilities and administrative infrastructure requirements, including the requirement that the facility comply with the Americans with Disabilities Act of 1990 (42 U.S.C. 12101
In the past, the SBA has found that some WBCs do not clearly reference that they are Women's Business Centers, with an emphasis on providing services to prospective or existing women entrepreneurs. Therefore, the SBA is proposing that any new WBC accepted into the WBC Program after the effective date of the rule be required to include the specific identification “WBC” as part of its official name. The SBA is further proposing that all other WBCs prominently include on their Web sites and promotional documents that the “Women's Business Center is funded in part by the U.S. Small Business Administration”. This transparency would ensure that WBCs are clearly discernable and are easily recognized by women attempting to contact organizations for business services focused on women.
Historically, WBCs with insufficient staff have been identified as more likely to face difficulties in providing services at an adequate level as outlined in their statements of work. The SBA also has concerns related to the inability for a WBC to grow or expand services when the WBC is not properly staffed. To ensure maximum productivity of a WBC, this rule proposes to require that
This section proposes to require WBCs to identify their geographic service area(s) as part of the application process. Currently, many WBCs do not clearly define their proposed geographic service areas; rather, they indicate that services will be provided for an entire state. Historically, this has caused some confusion, as some WBCs include service areas where an existing SBA-funded WBC is already providing services. This is especially true in states where there is more than one WBC and more than one Recipient Organization. Under this proposed rule, SBA plans to define, in writing, the geographic area for each Recipient Organization funded under the WBC Program. WBCs would also be required to submit a written request to change a geographic service area so as to ensure that no two WBCs are awarded WBC Project Funds to provide services in the same area while some areas remain underserved. To that end, this rule proposes that Applicant Organizations submitting new WBC projects within proximity of an existing WBC include a justification of need, including a discussion of the population density, submitted in its proposal. The SBA is seeking comment on how to best define proximity.
This proposed section lists the required services that Women's Business Centers must provide to participate in the WBC Program. Consistent with the statute, 15 U.S.C. 656, the Office of Women's Business Ownership requires in its program announcement(s) that Women's Business Centers provide Training and Counseling services to women, as well as services that will assist their businesses in securing business credit and investment capital. In accordance with this requirement, WBCs assist women business owners in identifying available funds from lenders, the SBA and other resources. These resources include collaboration with state, local and federal government agencies and assisting its clients pursue designation as women-owned, small businesses. This section also names the proposed services that a WBC can provide to assist a women business owner access capital. To assist with delivery of its access to capital services, the WBCs rely on programs provided by other agencies. These programs include, but are not limited to, use of the FDIC Smart Money Curriculum, Census Bureau data tools, and the SBA's Microloan Program. Further, many of the WBC host organizations are microlenders and work with other lenders in the community.
Historically, (see links below) men have started their businesses with significantly more capital than women, and women's access to capital remains an obstacle to women growing their businesses. This has been included in reports by the U.S. Department of Commerce and the National Women's Business Council included here.
Given the SBA's involvement in disaster-relief assistance and the WBCs' participation in addressing the business needs in communities impacted by catastrophes, the SBA is also proposing to include a section on Specialized Services.
This proposed section outlines the role of the Assistant Administrator/OWBO, as defined in 15 U.S.C. 656. This rule also proposes to explicitly define the roles of the WBC Program Director and Principal Investigator of the Recipient Organization. Additionally, under this proposed rule, the SBA clearly defines the tasks and responsibilities for the WBC Program Director, as the Full-time Key Employee for the WBC, as those completed solely for the WBC project.
This section outlines the proposed competencies for the WBC Program Director, as well as the process the WBC must undertake if the position is vacant. The WBC Program Director, considered by the Agency as the key position for the WBC project, is responsible for managing the day-to-day operation of the WBC. Responsibilities related to the overall management of the WBC may include providing direct services (
This section outlines the proposed grant application submission process for new and existing WBC Applicant Organizations to participate in the WBC Program. It also identifies proposed general selection criteria. In the ANPRM, comments were received that suggest the SBA should not use geography to help determine the location of a WBC and that proximity to another WBC is not a disqualifier. The SBA follows statutory guidance that individual Applicant Organizations reach a Distinct Population that would not be otherwise served. The Agency proposes Applicant Organizations within proximity of an existing WBC provide a justification for the need of an additional WBC within that area including information about the population density. This helps to ensure that the WBC Program is serving the maximum number of clients with as much coverage as possible, while meeting the statutory requirement of reaching a Distinct Population that would otherwise not be served. This section also outlines the proposed criteria that SBA will use to determine a WBC's level of risk, consistent with 2 CFR part 200, subpart C.
This proposed section codifies the Agency's statutory authority at 15 U.S.C. 656 (B)(1), to use unawarded amounts to fund new Women's Business Centers. This section outlines the process proposed by the SBA to fund new WBCs.
This proposed section proposes to codify the Agency's statutory authority at U.S.C. Code 656 (2), to fund
This section outlines the proposed conditions for approval or rejection of an Application for the WBC Program, as authorized by 15 U.S.C. 656 (3)(C). This section also proposes the appeal process WBCs can complete if a renewal application is rejected, as outlined in Section 131.840.
This proposed section codifies the Agency's statutory authority at 15 U.S.C. 656 to fund projects following grant administration guidance under 2 CFR part 200—Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards.
This proposed section codifies the Agency's statutory requirement that no individual WBC project receive funds in excess of the amount authorized by statute. This rule proposes to include this section to clarify that while an individual WBC project cannot exceed the statutory limit, a Recipient Organization is not limited from establishing multiple WBC projects so long as the projects are distinct from each other and are serving Distinct Populations that would not otherwise be served. A Recipient Organization seeking additional funding for a new project shall follow the Application process, as defined in section 131.400 of this proposed rule for new Applications.
This proposed section outlines the requirements for the use of Carryover Funds and proposes to limit the number of Carryovers to prevent a WBC from creating a cycle of dependency on Carryover funding. Historically, a significant number of WBCs have consistently requested Carryover of funds. A Carryover of funds generally occurs when a WBC does not fully spend the Federal funds or the Matching Funds as requested and approved in the WBC's budget. This Carryover results in a Recipient Organization having both the Carryover Funds and Option Year funding running concurrently, both of which require Matching Funds. When the Carryover is granted, the Recipient Organization has the responsibility of raising Matching Funds for the Carryover Funds, if not already matched, as well as Option Year funding. This often creates a cycle in which the Recipient Organization will match and spend the Carryover funding, but is then not able to spend the current year funding, thus creating a situation where it must request Carryover funding the following year. While there is never a penalty to requesting less funding, Carryover funding represents an underutilization of the Federal funds provided. The rule proposes to limit Carryover of Federal funds to those WBCs in the first or second year of an initial phase grant.
WBCs in an initial phase of funding may have fewer expenses in the first year as the WBC is establishing itself. However, the WBCs may need additional resources as the programming offered grows. Permitting new WBCs the flexibility to carry over funds during the first two years of participating in the WBC Program ensures that the SBA is utilizing WBC funding efficiently. If a WBC in the initial phase requests a Carryover for both of the first two years, SBA proposes to reduce the funding in the third year by the amount of the second year Carryover to eliminate the cycle of Carryover funding.
This proposed section codifies the statutory requirement at 15 U.S.C. 656 for a Recipient Organization to provide Matching Funds equal to half of the Federal amount of the SBA funding for the first two years of its initial award. For the remainder of the time the Recipient Organization participates in the WBC Program, it must provide match of one dollar for every one Federal dollar of its annual Federal award amount, as prescribed in the statute, 15 U.S.C. 656. This rule proposes language which clarifies the process of documenting the match funds and also identifies types of funding that cannot be used as match, such as other Federal funding.
Section 200.306 of Title 2 requires any funds used to match the Federal grant, to be verifiable from the Non-Federal Entity's records. The WBC Program requires a 1 to 1 match for WBCs that have been in the WBC Program for more than two years. A 2 to 1 match (for every two dollars of Federal funds used, 1 dollar of Matching Funds) is required for WBCs in the first two years of the WBC Program). In other words, the statute requires a 2:1 (Federal to non-Federal dollars) match for the first year; 2:1 match for the second year; 1:1 match for the third year; 1:1 match for the fourth year; and a 1:1 match for the fifth year. WBCs can provide Overmatch if they choose to do so; however, if they have used Federal funds to raise match above the required amount, these funds must be used to meet the Federal objective of the WBC Program and must be verifiable. This does not prohibit the Recipient Organization from raising funds separate and apart from the WBC Program. Those funds that are not used as match and are not raised with WBC funds are not subject to the same recordkeeping requirements, as they are not tied to the WBC Program.
Consistent with 2 CFR 200.307, Recipient Organizations are allowed to charge clients fees for WBC Program services and use the income to defray the costs of delivering the objectives of the grant. This rule proposes to codify that WBCs may charge fees for services provided to their clients. This rule also proposes to identify the type of activities for which the WBC can charge fees and allows WBCs to use the fee income to be counted towards the cash portion of Matching Funds required under section 131.530 of this proposed rule. Historically, WBCs have often collected fees for Training classes to cover the cost of materials and supplies affiliated with providing a Training session or fees when helping clients complete a loan package. Some WBCs have also used a membership model that includes fees. Over the past several years, many WBCs have been exploring ways to charge fees for Counseling in order to ensure that clients commit to participation for a Counseling session. This rule proposes to allow WBCs to charge a retainer fee for Counseling services; however, such fees must not restrict access to any services for economically disadvantaged entrepreneurs.
Consistent with 2 CFR part 200, subpart E, Recipient Organizations must follow the cost principles when completing and submitting a budget along with an Application or Annual Work Plan. The budget must include justification for the expenses. This section clarifies several specific cost categories, including Indirect Cost rates and audit expenses. This rule proposes to include guidance on salaries and travel. Under the cost principle section, all costs must be reasonable. Salaries vary by state and region and position. Using a reasonableness standard, SBA proposes that salaries for WBC staff be comparable to similar positions within similarly sized programs in other states
Consistent with 2 CFR part 200, subpart E, Recipient Organizations must not use Federal funds or Matching Funds to pay for certain items that are prohibited. This rule proposes language that establishes what costs are considered prohibited. For example, there have been instances in which WBCs have requested the use of WBC Project Funds as collateral for loans. Because this would bind the Federal dollars for a purpose other than delivering the WBC project, the viability of the WBC could be jeopardized. Recipient Organizations have also inquired about using Project Funds to purchase items that could be viewed either as promotional materials, marketing materials, or gifts. Although marketing/advertising the WBC Program is considered an allowable cost under 2 CFR 200.421, certain types of materials are considered gifts for individual use and are not broad-based marketing materials that will reach the population that the women's business center serves.
This proposed section codifies the Agency's statutory authority at 15 U.S.C. 656, to provide payments in lump sum or installments, and in advance or by way of reimbursement to Recipient Organizations. The Agency may disburse up to 25 percent of each year's Federal share awarded to a recipient organization after the Notice of Award has been issued and before the non-Federal Matching Funds are obtained. This rule proposes payments be disbursed as quarterly advances for the first three quarters and on a reimbursement basis for the final quarter, except in cases where a Recipient Organization has not demonstrated its ability to obtain match or has not provided adequate information to demonstrate the use of the Project Funds. On a case-by-case basis, the Agency may determine that a Recipient Organization has not fully complied with the terms of the grant, in which case payments may be made by reimbursement.
This section proposes a list of the types of reports required to be submitted and the frequency of submission of the reports. This rule proposes using semi-annual reporting of programmatic and financial reports, and quarterly reporting of Counseling and Training data. In instances where the Agency may have reasons to believe that a Recipient Organization poses a higher risk of non-performance or non-compliance, the Agency will include any additional requirements to report quarterly in the annual Notice of Award. Consistent with 2 CFR part 200, subpart C, the Agency is required to assess the risk level of each WBC or WBC Applicant Organization prior to making an award. Section 131.400 of this rule proposes the risk assessment criteria the Agency will use for WBC awards. This rule also proposes to require Recipient Organizations to submit client activity reports, including Counseling and Training Records. These reports are submitted electronically and allow the Agency to monitor and report on WBC Program performance for each Recipient Organization and the WBC Program as a whole. The information also enables the Agency, in a streamlined process, to conduct detailed WBC Program evaluations, assess program management and performance, and conduct performance monitoring and program-outcome reporting. Performance reports should be consistent with the budget justification that is submitted as part of the application process or Annual Work Plan submission.
This proposed section codifies the statutory requirement at 15 U.S.C. 656 for the Agency to conduct annual programmatic and financial examinations of each WBC. Currently, to satisfy these requirements, the Agency utilizes reports submitted by the WBCs, reports submitted by the SBA District Office staff, programmatic site visits, and financial examinations. This combination of oversight allows the Agency to effectively monitor the WBC portfolio without requiring WBCs to submit all of the documentation for the program. Additionally, the Agency has also recently changed the frequency of the reporting schedule outlined in 131.600 to minimize the burden on WBCs that are effectively delivering the program.
This section of the rule proposes how the SBA will monitor program performance consistent with 2 CFR 200.328.
This section proposes to require new Women's Business Centers participating in the Women's Business Center Program for the first time to have post-award financial examinations conducted by Agency staff or designee(s). Many new initial Recipient Organizations have never received Federal funds and may never have been required to meet Federal financial management standards. As part of the proposed post-award examination process, the examiner would determine the adequacy of the WBC's financial management system and make recommendations for improvement, if needed. The Agency anticipates that the examinations and recommendations will assist the WBC in avoiding financial findings and/or recoupment during future financial examinations or audits.
In addition to the post-award examination, this section outlines the SBA's proposed requirement, consistent with the statute 15 U.S.C. 656, that all other WBCs receive comprehensive financial examinations, as scheduled by the SBA's Financial Examination Unit. The proposed process for complying with this requirement is outlined in this section.
This proposed section codifies the statutory requirement at 15 U.S.C. 656 for the Agency to provide financial assistance to Recipient Organizations in the form of grants, contract, or Cooperative Agreement. Currently, a Cooperative Agreement serves as the vehicle to provide the financial assistance to the Recipient Organization to establish and maintain a WBC. The Cooperative Agreement is signed annually and contains the amount of Federal funding, a negotiated budget and agreed-upon performance milestones. The Cooperative Agreement contains the terms and conditions of the award and identifies any special considerations, including the annual determination of risk level. This rule proposes to require SBA District Offices to negotiate the annual performance goals with each Recipient Organization. SBA District Offices have a better understanding of local and regional economic conditions and the needs of women entrepreneurs, and can therefore make a better informed determination of the appropriate performance milestones with Recipient Organizations in their
It is the Agency's policy that contracting out more than 49 percent of a grant (except in certain circumstances) constitutes a subgrant. Consistent with this policy, this rule proposes that the WBC not expend more than 49 percent of its total Project Funds on contractors and consultants.
This proposed section codifies the statutory requirement at 15 U.S.C. 656(d) to allow a WBC to enter into a contract with other Federal departments or agencies to provide specific assistance to women entrepreneurs. With the exception of Community Development Block Grants (CBDG), grants received from other Federal entities may not be used as Matching Funds for the WBC grant. CDBG statutory language allows CDBG funds to be used as Matching Funds to other Federal programs. The CDBG regulations at 24 CFR 570.201(g) further elaborate on this eligibility criterion. On occasion, the Agency may provide additional assistance to a WBC through programs such as the Recovery Improvements for Small Entities (RISE) After Disaster Act. These funds are separate from the regular WBC grants but are provided to WBCs to spur disaster recovery.
Consistent with 2 CFR part 200, subpart D, Post Federal Award Requirements, Recipient Organizations are required to report deviations from budget or project scope or objective, and request Prior Approvals from Federal awarding agencies for budget and WBC Program plan revisions. This proposed rule outlines the common revisions that require Prior Approval by the Agency. These include changes in the staffing of the WBC Program Director, changes in project scope, program activity or location that could potentially alter the negotiated milestones in the Cooperative Agreement.
Consistent with 2 CFR 200.338, the Agency may take action to suspend, terminate or non-renew a grant to a Recipient Organization for cause. This rule proposes the instances for which the Agency may take action, identifies the administrative procedures for each action, and outlines the appeal rights for each action. This rule also proposes the process that the SBA will take when an action is reversed.
Consistent with 2 CFR 200.341, the Agency currently provides opportunity for Recipient Organizations to Dispute financial and programmatic decisions of the Office of Women's Business Ownership. This rule proposes to codify the current Dispute procedures to provide an opportunity for a Recipient Organization to submit a written statement describing the subject of a Dispute and to submit an appeal if the Recipient Organization receives an unfavorable decision from the Agency.
Consistent with 2 CFR 200.343, this rule proposes to codify the current process by which the Agency would close out a Federal award if it is determined that all applicable administrative actions and all required work of the Federal award have been completed by the Recipient Organization. These actions help to ensure that the final proper payment can be made to the Recipient Organization after completing a reconciliation of all accounts, including an inventory of property and usable supplies, WBC Program Income balances, and client and financial records. After receiving the final annual financial report to ensure proper final payments, the Agency would issue a final letter indicating that all financial and WBC Program issues are fully reconciled.
SBA proposes to codify the legislative requirements for WBCs and the Administration to protect the privacy of any individual or small business receiving assistance in the Program. Under this proposed rule, in accordance with Section 21(a)(7) of the Act, a WBC, including its contractors and other agents, is not permitted to disclose to an entity outside the individual WBC, the name, address, or telephone number, referred to as `client contact data' of any individual or small business without the consent of such individual or small business with three exceptions.
This rule proposes to require WBCs to provide an opportunity for clients to opt in to allow the SBA to obtain their contact data. The rule would codify how the SBA could use the permitted client contact data only to conduct studies that help stakeholders better understand how the services the client received affect their business outcomes over time. These studies would include, but not be limited to, program evaluation and performance management studies.
In the past, SBA District Offices may have used client contact data to solicit loan applications. The functions and goals of the District Offices have changed over the years. Today this type of solicitation is not a function of SBA District Offices and has not been in recent years. The agency will not allow use of client contact data for any other purpose beyond program studies.
This rule also proposes to prohibit the denial of services to clients solely based on a client's refusal to provide consent to use their contact data for study purposes. Section 21(a)(7)(C) of the Act directs the agency to publish standards for requiring disclosures of client information during a financial audit. This rule proposes to require other Federal or State agencies making such disclosure requests to submit formal requests including a justification for the need for individual client contact and/or program activity data for the Administrator's review on a case-by-case basis. Public comments on these proposed standards are encouraged.
This rule also proposes to codify the current privacy protections in place in the Program currently employed by the agency. Under this proposed rule, any reports on the Program produced by a WBC, including its contractors and other agents, and the agency, cannot disclose individual client information without consent from the client. Any such reports must only report activity data in the aggregate, unless given consent, so as to protect the individual privacy of clients.
Readers are encouraged to review closely each section of the proposed rule in conjunction with current regulations to fully comprehend the extent of the rule and its changes. The SBA invites comment on all aspects of this proposed rule, including the underlying policies. Submitted comments will be available to any person or entity upon request.
The Office of Management and Budget has determined that this proposed rule constitutes a “significant regulatory action” under Executive Order 12866.
The WBC Program was established in 1988 as a pilot program and became permanent in 2007. Regulations for the WBC Program had not been previously promulgated. The SBA has used the Program Announcement and Notice of Award to incorporate statutory requirements to implement the WBC Program. The annual Program Announcement and Notice of Award have become, for all practical purposes, documents which interpret the statute. The SBA believes it is past time for regulations outlining guidance for the policies and procedures for the WBC Program. This regulation incorporates the changes required by the OMB circular published by OMB and other program changes that have taken place since the WBC Program was initially established. Additionally, the Association of Women's Business Centers has supported implementing regulations to streamline and standardize processes.
Further, the SBA received eight comments to the ANPRM that was published on April 22, 2015. All of the comments relevant to the WBC Program regulations were considered in the drafting of this proposed rule.
The WBC Program received $17 million in Federal funds which it provided to over 100 Women's Business Centers in fiscal year 2016. The Grantees are required to supply a 1-to-1 match of those funds, except in the first two initial years in the program for which the match is 2 to 1 (Federal to match). The benefit of this requirement is that the Grantee is invested as much as the Federal government in making the WBC Program a success. The small businesses benefit from the no-cost or low-cost Counseling and Training. Specifically, in 2015, the WBC Program counseled 20,473 entrepreneurs; trained 120,030 entrepreneurs, created 771 new businesses and raised $87,630,000 in capital infusion. Further, as stated above, the potential benefits of this proposed rule are based on incorporating all the changes that have occurred with the publication of 2 CFR part 200 and a streamlining of both the Program Announcement and the Notice of Award. The new regulations will provide additional clarification for the Program Announcement(s) issued by the Office of Women's Business Ownership.
The costs to the SBA in making this revision are minimal, as most of the requirements of this rule are currently being followed. The estimated annual cost to the Federal government for oversight of these WBCs is currently provided for in the existing SBA infrastructure. Similarly, the costs to the grantees is also minimal as they, too, are following the requirements in this NPRM, which are currently included in their annual Cooperative Agreement. No additional direct costs are projected to be incurred by WBCs for oversight and related functions in this proposed rule.
After publishing the ANPRM on April 22, 2015, and reviewing the comments submitted, the SBA believes that publishing regulations for the WBC Program would be the best way to create long-lasting consistency in the implementation of the WBC Program. Another alternative would be to do nothing and continue to rely on grant documents to implement the WBC Program. Furthermore, the statute requires SBA to publish regulations in general and specifically in regards to the Privacy Act Requirements of the WBC Program. The Privacy Act Requirements are included in this regulation to satisfy that requirement.
The ANPRM was published on April 22, 2015, (Docket Number 2015-09391) and eight comments were received. The comments varied greatly from specific to general and covered a wide variety of topics, from providing clearer definitions to streamlining procedures and identifying actions requiring Prior Approval from the SBA. The SBA reviewed all the comments and took them under consideration when revising these proposed regulations. Further, SBA held monthly conference calls with the grantees, discussing various current topics which included the proposed regulations. Additionally, the Office of Women's Business Ownership staff attends the annual Women's Business Center training conferences that include discussions of policy, procedures and the proposed regulations. A summary and disposition of the comments includes, but is not limited to, the following: (1) Training should be ongoing for Women's Business Centers. The Office of Women's Business Ownership has initiated ongoing training for Women's Business Centers through its monthly conference calls and one-on-one teleconference calls, as requested; (2) The SBA should provide full funding to WBCs and not require fundraising. The funding levels and match requirements that are included are consistent with the statute, 15 U.S.C. 656; (3) The SBA data collection system must be upgraded. SBA is currently working to improve the system; (4) The regulation should provide a definition for Distinct Population. A definition is included in the proposed regulations; (5) Develop a repository of information that could be used by all of the WBCs, including templates, program updates and training materials. While, the Office of Women's Business Ownership did not include the requirement for a repository in these draft regulations, the office will work with women's organizations to develop information that will be available to all WBCs; 6) Provide a definition for in-kind services and do not limit the amount a volunteer can provide as in-kind activity. The draft regulations references 2 CFR 200.96 for the definition of in-kind. Also, the SBA does not limit the amount of In-kind Contributions from a service provider, but the amount of in-kind that can be used as match is limited and is consistent with the statute, 15 U.S.C. 656. Comments for the ANPRM can be located at:
The SBA did not consult with any other agencies when drafting the proposed regulations as the Women's Business Center Program does not have any joint grants with other agencies.
For the purposes of Executive Order 12988, Civil Justice Reform, the SBA has determined that this proposed rule is drafted, to the extent practicable, in accordance with the standards set forth in Sec. 3(a) and 3(b)(2), to minimize litigation, eliminate ambiguity and reduce burden. The proposed regulations would provide for rights of appeal to the SBA's WBC Program participants in the event they are aggrieved by an Agency decision, thereby limiting the possibility of litigation by these entities. This proposed rule would not have retroactive or pre-emptive effect.
For the purposes of Executive Order 13132, the SBA determined that this rule has no federalism implications warranting preparation of a federalism assessment.
When an agency promulgates a proposed rule, the Regulatory Flexibility Act requires the agency to prepare an initial regulatory flexibility analysis (IRFA), which describes the potential economic impact of the rule on small entities and alternatives that may minimize that impact. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an IRFA, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities. This rule covers both the application process to become funded as a Women's Business Center and the on-going operations for currently funded WBCs. As the populations are different for the application process and the existing WBCs, the analysis is included for each.
This proposed rule could theoretically affect all nonprofit entities as the statute requires that an entity be organized as a nonprofit in order to participate. According to the IRS, for tax year 2010, there are over 269,000 entities that filed returns as a 501(c)(3). The NAICs codes that are most relevant to participate in the program are 541611, Administrative Management and General Management Consulting Services and 541990, All Other Professional, Scientific and Technical Services. The size standard for both of these NAICs codes is $15 million in average annual receipts. According to the IRS, 92 percent of all 501(c)(3) filers had total revenue greater than $10 million. The majority of the 501(c)(3) entities would fall under the threshold as a small entity. In addition, as the application process is voluntary and does not require a nonprofit entity to apply, the vast majority of nonprofits would not be affected. Over the past 5 years, there were a total of 133 new applications submitted for the WBC Program—averaging 25-35 applications per year. The SF 424 (Application for Federal Assistance) on
There are currently 114 entities that participate in the WBC Program, all of which are small entities. However, the SBA has determined that the impact on these entities affected by the proposed rule will not be significant. The proposed rule codifies current policies and procedures that are already achieved through a Cooperative Agreement with the SBA. It does not include new reporting requirements. Rather it standardizes existing policies to ensure transparency and consistency which in theory will reduce the cost to both the WBC participants and SBA. A WBC participating in the WBC Program submits a Federal Financial Report and attachments twice a year. The estimated burden for these reports is 2 hours twice a year. The annual submission of a work plan is substantially less than the Application and is only to update any changes from the initial Application. The estimate for these forms on an annual basis is a total of 14 hours. For a grants writer at $30 per hour, the annual estimated cost would be $420. Accordingly, the Administrator of the SBA hereby certifies that this proposed rule will not have a significant impact on a substantial number of small entities.
SBA has determined that this proposed rule would not impose additional reporting and recordkeeping requirements under the Paperwork Reduction Act (PRA), 44 U.S.C. Chapter 35. Currently, there are eight Paperwork Reduction Act submissions associated specifically with the WBC Program: (1) OMB control number 3245-0140 Notice of Award and Cooperative Agreement; (2) OMB control number 3245-0169, Federal Cash Transaction Report, Financial Status Report, Program Income Report, and Narrative Program Report; (3) OMB control number 3245-0324, EDMIS data collection (641 and 888 forms); (4) OMB control number 4040-0004, SF 424, Application for Financial Assistance; (5) OMB control number 4040-0006, SF 424A, Budget Summary for non-construction projects; (6) OMB control number 4040-0007, SF 424B, Assurances for non-construction projects; (7)OMB control number 4040-0013, SF-LLL, Disclosure of Lobbying Activities; and, (8) 4040-0014SF-425, Federal Financial Report. These reports will not change and no new reports are required in the proposed rule.
Entrepreneurship, Grant programs—business, Minority businesses—women, Reporting and recordkeeping requirements, Small businesses.
For the reasons set forth above, SBA proposes to add 13 CFR part 131 as follows:
15 U.S.C. 656.
The Women's Business Centers (WBC) program has grown and evolved to provide a variety of services to many entrepreneurs ranging from those interested in starting businesses to those looking to expand existing businesses.
SBA, through the Office of Women's Business Ownership (OWBO) is responsible for the general management and oversight of the Women's Business Center Program (WBC program). SBA issues an annual cooperative agreement to recipient organizations for the delivery of assistance to individuals and small businesses. The WBC program acts as a catalyst for providing in-depth,
(a)
(b)
(1) Any organization that owes an outstanding and unresolved financial obligation to the Federal government;
(2) Any organization, employee or principal investigator of an organization that is currently suspended, debarred or otherwise prohibited from receiving awards, contracts or grants from the Federal government;
(3) Any organization with an outstanding and unresolved material deficiency reported under the requirements of the Single Audit Act within the past three years, consistent with 2 CFR 200.501;
(4) Any organization that has had a grant or cooperative agreement involuntarily terminated or non-renewed by the SBA for cause;
(5) Any organization that has filed for bankruptcy within the past five years;
(6) Any organization that does not propose to hire and employ a full-time WBC Program Director whose time is solely dedicated to managing the day-to-day operation of the WBC and staff;
(7) Any organization that proposes to serve as a pass-through and permit another organization to manage the day-to-day operations of the project;
(8) Any organization that had an officer or agent acting on its behalf convicted of a felony criminal violation under any Federal law within the preceding 24 months; and,
(9) Any other organization the SBA reasonably determines to be ineligible to receive Federal funds to manage a WBC project.
Women's Business Centers (WBCs) are established under the statutory authority of the SBA through cooperative agreements with nonprofit recipient organizations. WBC program announcements and requests for work plans and budgets establish the operating and performance parameters, initiatives, and strategies for each project period.
(a)
(2) At any time during the current fiscal year, and based on the availability of funds, the SBA may, at its discretion, also issue a program announcement for the upcoming fiscal year, detailing the goals, objectives and other terms and conditions for new WBC projects. New WBC projects may be awarded a maximum of one base year and 4 additional option years of funding.
(3) The SBA reserves the right to cancel a program announcement, in whole or in part, at the agency's discretion.
(b)
(2) The SBA reserves the right to revise the submission requirements, in whole or in part, at the agency's discretion.
(3) Awarding option year funding is at the sole discretion of the SBA and is subject to continuing program authority, the availability of funds and satisfactory performance by the recipient organization.
(c)
(2) The SBA will issue a notice of award annually to each eligible WBC participant, based on the acceptance of the annual proposal or work plan.
(d)
(1) Collaborating with the local SBA district office to develop annual goals for the WBC project;
(2) Receiving written concurrence from the SBA district office staff for inclusion in the application submission;
(3) Developing data and analyses to design the WBC services needed by the small business community, with focus on women and women-owned businesses;
(4) Proposing services and the appropriate structure to deliver those services to meet the needs of the small business community, specifically targeting women, including a representative number of women whom are socially and economically disadvantaged;
(5) Ensuring that adequate technical and managerial resources are proposed for the WBC to achieve the performance goals and program objectives as set forth in the cooperative agreement.
(e)
(a) The recipient organization has the contractual responsibility for the duties of the WBC project, which must be a separate and distinct entity within the recipient organization, having its own budget, its own staff, and a full-time WBC Program Director.
(b) The Women's Business Center must establish an advisory board that is representative of the community it will serve and that will confer with and provide recommendations to the WBC Program Director on matters pertaining to the operation of the WBC. The advisory board will also assist the WBC in meeting the match requirements of the program.
(c) An employee who is full-time under the Women's Business Center program should not engage in activities that do not pertain to the WBC project. The WBC is not prohibited from operating other Federal programs that focus on women or other underserved small business concerns as long as doing so does not hinder the ability to deliver the services of the WBC program.
(d) The WBC must have the facilities and administrative infrastructure sufficient to operate a center, including program development, program management, financial management, reports management, promotion and public relations, program assessment, program evaluation and internal quality control. The Women's Business Center must document annual financial and programmatic reviews and evaluations of its center(s) consistent with § 131.600(a).
(e) Any new WBC that is accepted into the WBC program after the effective date of this rule must include the specific identification “Women's Business Center” as part of its official name. Any WBC that is applying for a renewal grant after the effective date of this rule must also include the specific identification “WBC” as part of its official name. Any existing WBC that does not include “Women's Business Center” in its name must include the following language prominently on their Web site and promotional documents: “The Women's Business Center is funded in part by the U.S. Small Business Administration.”
(f) The WBC must maintain adequate staff to operate the WBC, including the WBC Program Director and at least one other person, preferably a business counselor.
(g) The WBC must use an enforceable conflict-of-interest policy that is consistent with the requirements of 2 CFR 2701.112 and which is signed annually by each WBC employee, contractor, consultant and volunteer. The policy must be uniform among all employees, contractors, consultants and volunteers working for or with the WBC program.
(h) The WBC must be open to the public a minimum of 40 hours a week (which must include evening and weekend hours) and meet other requirements as specified in the program announcement. Emergency closures must be reported to the district office technical representative and OWBO Program Manager as soon as is feasible.
(i) The WBC will comply with 13 CFR parts 112, 113, 117, and 136 requiring that no person be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the WBC. However, all WBC marketing programs and services must target women.
(j) The WBC project must not be listed in the organizational structure under any other federal grant.
(a)
(b)
(c)
(a)
(b)
(2) WBCs may provide loan packaging services and other services to WBC clients, and may charge a fee for such assistance. See § 131.540. Any fees so generated will constitute program income. The WBC must ensure that these services are not credited to both the WBC program and any other Federally-funded program, thereby double counting the efforts.
(3) WBCs shall prepare their clients to represent themselves to lending institutions. WBC personnel may attend meetings with lenders to assist clients in preparing financial packages; however, neither WBC staff nor their agents may take a direct or indirect role in representing clients in any loan negotiations.
(4) WBCs shall disclose to their clients that financial counseling assistance, including loan packaging, will not guarantee receipt or imply approval of a loan or loan guarantee.
(5) WBCs must not intervene in loan decisions, service loans, make credit recommendations or influence decisions regarding the award of any loans or lines of credit on behalf of the WBC's clients unless the WBC operates as an SBA microlender and is awarding an individual or small business concern an SBA microloan.
(6) When the recipient organization operates both a WBC and a separate loan program, the WBC must disclose to the client other financing options that may be available besides the one offered by the recipient organization to ensure that the client has the opportunity to seek financing outside of the recipient organization.
(7) WBCs must disclose to loan packaging clients any financial relationships between the WBC and a lender or the sale of their credit products.
(8) With respect to loan programs, allowable activities include: assisting clients in formulating a business plan, preparing financial statements, completing forms that are part of a loan application, and accompanying an applicant appearing before the SBA or other lenders. See paragraph (5) of this section for further limitations.
(9) WBCs are to collaborate with state, local and federal government agencies to identify other resources that may be available to its clients and to facilitate interactions deriving from these collaborations.
(c)
(a)
(b)
(c)
(2) The WBC Program Director must have the necessary authority from the recipient organization to control all WBC budgets and expenditures, as well as any hiring and staffing decisions required to meet the program objectives, under the cooperative agreement.
(3) The WBC Program Director may not manage any other programs under the recipient organization.
(4) The WBC Program Director will serve as the SBA's principal contact for all matters involving the WBC.
(d)
(a)
(2) The recipient organization must provide written notification to the local
(3) Within 30 days of the position becoming vacant, the recipient organization must appoint an Interim Program Director to serve during the period of the vacancy. The recipient organization must document the appointment of the Interim Program Director in accordance with its policies and procedures and the cooperative agreement.
(4) The recipient organization must provide the name, qualifications and contact information for the Interim WBC Program Director to the SBA district office and the AA/OWBO within 10 days of the appointment.
(5) An Interim Program Director must allocate his/her time and effort solely to the WBC program until a permanent WBC Program Director is in position.
(6) If it is anticipated that the Interim Program Director will be in the position for more than 60 days, the recipient organization must submit a key personnel change request to the district office and the AA/OWBO for prior approval.
(7) The recipient organization must submit a request for a key personnel change (including the resume of the candidate) to the local SBA district office within the timeframe specified in the notice of award prior to hiring a new WBC Program Director. This should be completed within the 90 days allotted to fill the vacancy. Failure to comply with this section may subject the recipient organization to corrective actions, restrictions, disallowances, suspension, revocation or termination proceedings.
(b)
(2) If the AA/OWBO upholds the district office technical representative's objection, he/she must send written justification for the decision to the recipient organization, district office technical representative and OWBO Program Manager. The recipient organization must then proceed to the selection of another candidate. If the AA/OWBO denies the objection, then the AA/OWBO must send written justification for the denial to the recipient organization, district office technical representative and OWBO Program Manager.
(c)
(a) Each applicant organization seeking a new or renewal grant is required to submit its application electronically to the SBA, via
(b) The selection criteria for new or renewal grants will include, but is not limited to the following:
(1) Expertise of the applicant organization to provide long-term and short-term training and counseling programs, and, most specifically, experience in providing targeted business development services to a distinct population; and,
(2) The ability of the applicant organization to commence the WBC project within 90 days from execution of the cooperative agreement. All other specific criteria will be published in each program announcement issued by the SBA.
(c) As required by 2 CFR 200.205(b), applicant organizations receiving acceptable scores will be further evaluated by OWBO to assess the possible risks they may pose. An assessment of the possible risks posed by an applicant organization will include, but is not limited to, the applicant organization's financial stability, management systems and ability to effectively implement statutory, regulatory and other requirements, as determined by the SBA.
(d) Each WBC within its final option year period is required to submit an application consistent with the date and instructions listed in the program announcement.
(a) An application for initial funding must follow the format and requirements outlined in the program announcement and set forth in these regulations for initial funding.
(b) All new awards will be made using an open and competitive process. After completion of the review process, the AA/OWBO will make a determination and notify the applicant organization of the final decision.
(a) Women's Business Centers must comply with the requirements in the annual program announcement and set forth in these regulations to receive consideration of their three year renewal applications. WBCs must have successfully completed an initial five year period or a three year renewal period in order to receive funding under the program announcement. Recipient organizations that have not been renewed and recipient organizations that have been terminated or suspended are not eligible to apply for renewal funds. The recipient organization must submit the complete renewal application to the SBA through the
(b) Significant factors considered in the renewal application review will include, but shall not be limited to:
(1) The applicant organization's continued ability to contribute matching funds;
(2) The quality of prior performance under the cooperative agreement as determined by compliance with projects goals, and outputs/outcomes; and
(3) The results of any examination conducted pursuant to § 131.710(b).
(c) The SBA will review the renewal application for conformity with the program announcement. OWBO staff may request supplemental information and documentation prior to issuing the cooperative agreement.
(d) If the SBA rejects renewal of an existing recipient organization (see due process procedures set forth in
The AA/OWBO may approve, conditionally approve, or reject any initial or renewal Application.
(a)
(b)
(2) In the event of a conditional approval, SBA may fund a recipient organization for one or more specified periods of time up to a maximum of 90 days.
(c)
Upon approval of the WBC's initial or renewal application, the SBA will enter into a cooperative agreement with the recipient organization, setting forth the programmatic and fiscal responsibilities of the recipient organization and SBA, the scope of the project to be funded, and the budget for the period covered by the cooperative agreement. The WBC program adopts and implements Office of Management and Budget regulations as published and amended in 2 CFR part 200. Additional qualifications or clarifications may be promulgated through the program announcement, a revised notice of award or the regulatory process.
No individual WBC project will receive a WBC grant, in any fiscal year under a cooperative agreement, in excess of the amount authorized by statute. While an individual WBC project cannot exceed the statutory limit, a recipient organization is not limited from establishing multiple WBC projects as long as the projects are distinct from each other and are serving distinct populations that would not otherwise be served.
Only a WBC in the first or second year of an initial phase project may request permission to carry over any unexpended funds remaining under its award.
(a) Such a recipient organization may request that the SBA reauthorize any remaining unexpended and unobligated Federal funds from their cooperative agreement for use in the subsequent program year/period of performance. All carryover requests must be completed within 90 days after the end of the budget period identified in block 5 of the notice of award or page 2 of the modification of the award. The request must be submitted in writing to OWBO with the final semi-annual financial report and reimbursement request package. If the carryover request is not submitted within this timeframe, OWBO may elect to de-obligate all remaining Federal funds and the funds will no longer be available to the recipient organization.
(b) The AA/OWBO will determine the funding priorities for the awarding of carryover funds. Notification of the approval of carryover funds will be provided in writing by modification to the award.
(c) Carryover funds must be used in accordance with the approved option year work plan and budget. Furthermore, expenditures of carryover funds must not be commingled with current year WBC project funds or other non-WBC funds, and must be reported separately from the current year award.
(d) Any organization that requests carryover funds for two consecutive budget periods will be subject to a reduction of the next budget period. The award amount for the next budget period available will be reduced by the average amount of the two consecutive carryover amounts.
(a) The recipient organization must provide matching funds equal to one-half of the Federal amount of SBA funding for the first two years of its initial award. For the remainder of the time the recipient organization is in the WBC program, it must provide matching funds of one dollar for every Federal dollar of their annual Federal award amount. The statutory match ratio is 2:1 (Federal to non-Federal) for the first and second years and 1:1 for the third, fourth, and fifth years. At least 50% of the matching funds must be in cash (the sum of cash and program income). The remaining 50 percent may be provided through allowable combinations of cash, In-kind contributions (third party), or authorized indirect costs.
Once the cash match and total match requirements have been met, any additional matching funds are considered overmatch. WBCs may provide overmatch if they choose to do so; however, if they have used Federal funds to raise match above the required amount, these funds must only be used to meet the Federal objective of the WBC program and must be verifiable from the non-Federal entity's records. When applied to a WBC project through a budget proposal, all funds for use by the WBC for the budget period are subject to Federal rules and regulations, consistent with 2 CFR part 200. This does not prohibit WBC recipient organizations from raising funds separate and apart from the WBC program. Those funds that are not used as match and are not raised with WBC funds are not subject to the same recordkeeping requirements as they are not tied to the WBC Program.
(b) If the recipient organization indicates difficultly in meeting the match requirement, it can request a reduction of the Federal award.
(c) All sources of matching funds must be identified as specifically as possible with supporting documentation. Cash sources must be identified by name, amount, and account. Any additional requirements, specifications, or deliverables must be clearly identified in the budget narrative.
(d) All applicant organizations must submit a certification of cash match and program income. This certification must be executed by an authorized official of the recipient organization and the WBC Program Director.
(e) All matching funds, in addition to the Federal and program income funds, must be under the direct management of the WBC Program Director.
(f) Program income generated by the WBC may be used as matching funds. All WBC program income must be accounted for within the WBC's semi-annual financial reports (unless otherwise specified in the cooperative agreement) and the WBC's general ledger as validation for the district office technical representative's mid-year and year-end review.
(g) The Grants Management Specialist will determine whether matching funds and cash match set forth in the budget proposal are sufficient to recommend the proposal for funding.
(h) When applied to a WBC project through a budget proposal, all funds for use by the WBC for the budget period
(i) The following will not be considered as sources of matching funds for the WBC:
(1) Uncompensated student labor;
(2) SCORE, SBA, or other SBA resource partners;
(3) Federal funds other than Community Development Block Grant (CDBG) funds. CDBG funds may be used to match WBC grants where the WBC project activities are consistent with the authorized CDBG activities, and are identified either in the consolidated plan of the CDBG grantee or in the agreement between the CDBG grantee and the WBC recipient of the funds;
(4) Funds, in-kind contributions (third party), or indirect costs used as match for other programs, not solely dedicated to the WBC program, or under its control; and
(5) Funds or other resources provided for an agreed upon scope of work inconsistent with the authorized activities of the WBC program.
(a) Program income, including any interest earned on program income, may only be used for authorized purposes and in accordance with the cooperative agreement. Program income may be used as matching funds and, when expended, is counted towards the cash match requirement of the award. Program income must be used to expand the quantity or quality of services, and for resources or outreach provided by the WBC project.
(b) Unused program income may be carried over to the subsequent budget period by the WBC. The WBC must report the consolidated program income sources and uses.
(c) A WBC may charge clients a reasonable fee for services, including items such as the costs of training and counseling provided by the WBC (sponsored or cosponsored), the sale of books, and the rental of equipment or space. Any fees so generated will constitute program income, and such fees must not restrict access to any services for economically disadvantaged entrepreneurs.
(a)
(b)
(c)
(d)
(e)
(2) Salaries for all other positions within the WBC should be based upon level of responsibility, and should be comparable to salaries for similar positions in the area served by the WBC.
(f)
(g)
(2) Transportation costs must be justified in writing, including the estimated cost, purpose of travel, number of persons traveling, and the benefit to be derived by the small business community from the proposed travel.
(3) A request to include any travel outside of the WBC's area of service that was not included in the approved budget must be submitted to SBA through the district office technical representative for OWBO prior approval on a case-by-case basis.
SBA prohibitions are consistent with those set forth in 2 CFR part 200.
(a) A WBC may not use project funds as collateral for a loan, assign an interest in them, or use them for any other such monetary purpose.
Project funds found to be used in violation of these restrictions may be cause for termination, suspension, or non-renewal of the cooperative agreement.
(a) Advancement and reimbursement of Federal funds to WBCs from the SBA are accomplished electronically. Detailed instructions for the WBCs will be included in the annual cooperative agreement.
(b) Advancement and reimbursement requests allow for quarterly draw down of funds required to meet the estimated or actual quarterly Federal share of WBC expenses.
(c) For guidance regarding interest earned on advances of Federal funds, See 2 CFR 200.305 (b)(7) through (9).
(d) If there is a determination that an overpayment of Federal funds to a WBC has been made, the overpayment amount will be due and payable to the agency within 30 days of written notice to the WBC.
(a)
(b)
In each budget period and unless otherwise instructed in correspondence from the Office of Women's Business Ownership, the recipient organization of the WBC project must submit semi-annual programmatic and financial reports no later than 30 calendar days after each six-month reporting period, as specified in the program announcement.
(c)
(d)
(2) The final performance report must also include a brief overall summary of effort expended to deliver the core services in the cooperative agreement for the full budget period. A discussion of performance measurements achieved as well as an explanation of those objectives or measurements not met should be included. The performance report should include a brief summary of the activities, events or achievements by reportable category with an accompanying management analysis.
(e)
(a) The AA/Office of Women's Business Ownership will monitor the WBC's performance and its ongoing operations under the cooperative agreement to determine if the WBC is making effective and efficient use of program funds, in compliance with applicable law and other requirements, for the benefit of the small business community.
(b) The AA/Office of Women's Business Ownership may revoke delegated authority of oversight responsibilities at any time it is deemed necessary and will notify the recipient organization of such a change in a timely manner.
(a)
(2) The SBA Office of Inspector General or its agents may inspect, audit, investigate or otherwise review the WBC as the Inspector General deems appropriate.”
(b)
(2) The examinations by the SBA will not serve as a substitute for audits required of Federal recipients under the Single Audit Act of 1984, 31 U.S.C Chapter 75 or applicable Office of Management and Budget guidelines (see 2 CFR part 200), nor will such internal reviews serve as a substitute for audits to be conducted by the SBA Office of the Inspector General under authority of the Inspector General Act of 1978, as amended.
(c)
(d)
(a)
(b)
(2) Failing to meet the goals and milestones of the cooperative agreement may result in suspension, termination, non-renewal in accordance with § 131.830.
(c)
(2) The SBA may direct or otherwise approve any obligations or expenditures by recipient organizations, including those related to vendors or contractors, as deemed appropriate by the agency.
(a)
(1) Any additional contract or grant funds obtained from a Federal source may not be used as matching funds for the WBC project, with the exception of Community Development Block Grant funds.
(2) Federal funds from the SBA and match expenditures reported to the SBA
(3) The SBA does not impose any requirements for additional matching funds for those recipient organizations managing other Federal contracts.
(4) The WBC must report these other Federal funds and any associated matching funds separately to the SBA.
(b)
(2) Matching funds are not required for any grant, contract or cooperative agreement under this paragraph. (See section 7(b) of the Small Business Act 15 U.S.C. 636 (b)).
The notice of suspension will recommend that the recipient organization cease work on the project immediately. The SBA is under no obligation to reimburse any expenses incurred by a recipient organization while its cooperative agreement is under suspension. Where the SBA decides to lift a suspension and reinstate a recipient organization's cooperative agreement, the agency may, at its discretion, choose to make funds available to reimburse a recipient organization for some or all of the expenses it incurred in furtherance of project objectives during the period of suspension. However, there is no guarantee that the agency will elect to accept such expenses and recipient organizations incurring expenses while under suspension do so at their own risk.
Funds remaining under the cooperative agreement may be made available by the SBA to satisfy financial obligations properly incurred by the recipient organization prior to the date of termination. Award funds will not be available for obligations incurred subsequent to the effective date of termination unless expressly authorized under the notice of termination. A recipient organization that has had its cooperative agreement terminated will have 90 days to submit final closeout documents as instructed by the SBA.
Funds remaining under a non-renewed cooperative agreement may be utilized to satisfy financial obligations the recipient organization properly incurred prior to the end of the budget period. Award funds will not be available for obligations incurred subsequent to the end of the current budget period. A recipient organization that has had its cooperative agreement non-renewed will have until the end of the current budget period or 120 days, whichever is longer, to conclude its operations and submit close-out documents as instructed by the SBA.
(1) Non-performance;
(2) Poor performance;
(3) Unwillingness or inability to implement changes to improve performance;
(4) Willful or material failure to comply with the terms of the cooperative agreement, including relevant OMB circulars;
(5) Conduct reflecting a lack of business integrity or honesty on the part of the recipient organization, the WBC Program Director, or other significant employee(s), which has not been properly addressed;
(6) A conflict of interest on the part of the recipient organization, the WBC Program Director, or other significant employees causing real or perceived detriment to a small business concern, a contractor, the WBC or the SBA;
(7) Improper use of federal funds;
(8) Failure of a WBC to consent to audits, examinations, or to maintain required documents or records;
(9) Failure to implement recommendations from the audits or examinations within 30 days of their receipt;
(10) Failure of the WBC Program Director to work at the WBC on a 100 percent full-time basis on the WBC project;
(11) Failure to promptly suspend or terminate the employment of a WBC Program Director, or other significant employee upon receipt of knowledge or written information by the recipient organization and/or the SBA indicating that such individual has engaged in conduct which may result or has resulted in a criminal conviction or civil judgment which would cause the public
(12) Failure to maintain adequate client service facilities or service hours;
(13) Any other action that the SBA believes materially and adversely affects the operation or integrity of a WBC or the WBC program.
(c)
(2)
(3)
(d)
(i) Name and address of the recipient organization;
(ii) Identification of the relevant SBA office/program (
(iii) Cooperative agreement number;
(iv) Copy of the notice of suspension, termination, or non-renewal;
(v) Statement regarding why the recipient organization believes the SBA's actions were arbitrary, capricious, an abuse of discretion, and/or otherwise not in accordance with the law;
(vi) Identification of the specific relief being sought (
(vii) Statement as to whether the recipient organization is requesting a hearing and, if so, the reasons why it believes a hearing is necessary; and
(viii) Copies of any documents or other evidence the recipient organization believes support its position.
(2)
Associate Administrator for the Office of Entrepreneurial Development, U.S. Small Business Administration, 409 Third St. SW., 6th Floor, Washington, DC 20416. Email:
Assistant Administrator for the Office of Women's Business Ownership, U.S. Small Business Administration, 409 Third St. SW., 6th Floor, Washington, DC 20416. Email:
Associate General Counsel for Procurement Law, U.S. Small Business Administration, 409 Third St. SW., 5th Floor, Washington, DC 20416. Facsimile number: 202-205-6846.
(e)
In addition, if the AA/OED does not receive a request for administrative review within the 30-day deadline, then the decision by the AA/Office of Women's Business Ownership to suspend, terminate, or non-renew a recipient organization's cooperative agreement will automatically become the final agency decision on the matter.
(f)
(g)
After receiving the SBA's response to the request for administrative review or the passage of the 30-day deadline for filing such a response, the AA/OED will take one or more of the following actions, as applicable:
(i) Notify the parties whether she/he has decided to grant a request for a hearing;
(ii) direct the parties to submit further arguments and/or evidence on any issues which she/he believes require clarification;
(iii) notify the parties that she/he has declared the record to be closed and therefore she/he will refuse to admit any further evidence or argument.
Within 10 calendar days of declaring the record to be closed, the AA/OED will provide all parties with a copy of her/his written decision on the merits of the administrative review.
(h)
(i)
Where an enforcement action has been reversed on administrative review, the SBA will have no more than 10 calendar days to implement the AA/OED's decision. However, to the extent permitted under the applicable OMB circulars, the SBA reserves the right to impose such special conditions in the recipient organization's cooperative agreement as it deems necessary to protect the government's interests.
(a)
(2) If the recipient organization receives an unfavorable decision from the SBA, it may file an appeal with the AA/OED within 30 calendar days from receipt of the decision.
(3) The AA/Office of Entrepreneurial Development may request additional information or documentation from the recipient organization at any stage of the proceedings. The response to the request for additional information must be provided, in writing, to the AA/OED within 15 calendar days of receipt of the request. The AA/OED will transmit a written decision to the recipient organization within 15 calendar days of receipt of the appeal, or within 15 calendar days of receipt of additional information requested.
(4) If the recipient organization receives an unfavorable decision from the AA/OED, it may make a final appeal to the SBA Grants and Cooperative Agreements Appeals Committee (the “committee”). The final appeal to the committee must be filed within 30 calendar days of the date of receipt of the AA/Office of Entrepreneurial Development's written decision. Copies of the appeal must also be sent to the AA/Office of Women's Business Ownership and the OWBO grants management specialist. If the recipient organization elects not to file an appeal with the committee, the decision of the AA/Office of Entrepreneurial Development becomes the final decision. (See paragraph (a)(3) of this section).
(5) Requests for an appeal before the committee will not be granted unless the agency determines there are substantial material facts in dispute. Legal briefs and other technical forms of pleading are not required. Final appeals must be in writing and contain all of the following:
(i) Name and address of the recipient organization;
(ii) Name and address of the appropriate SBA district office(s);
(iii) The cooperative agreement number, including amendments;
(iv) A statement of the grounds for appeal, with reasons why the appeal should be sustained;
(v) The specific relief desired on appeal; and
(vi) If an appeal is requested, a statement of the material facts that are substantially in dispute.
(6) The committee may request additional information or documentation from the recipient organization at any stage in the proceedings. The recipient organization's response to the committee's request for additional information or documentation must be submitted, in writing, to the committee within 15 calendar days of receipt of the request. In the event that the recipient organization fails to follow the procedures specified in paragraph (a)(5) of this section, the committee may dismiss the appeal by a written order.
(7) If a request for an appeal is granted, the committee will provide the recipient organization with written instructions, and will afford the parties an opportunity to present their positions to the committee in writing.
(8) The chairperson of the committee, with advice from the SBA Office of General Counsel, will issue a final written decision within 30 calendar days of receipt of all information or inform the recipient organization that additional time to issue a decision is necessary. A copy of the decision will be transmitted to the recipient organization, with copies to the AA/Office of Women's Business Ownership, the grants management specialist, and the SBA district office.
(9) At any time within 120 days of the end of the budget period, the recipient organization may submit a written request to use an expedited dispute appeal process. The committee, by an affirmative vote of a majority of its total membership, may expedite the appeals process to attain final resolution of a dispute before the issuance date of a new cooperative agreement.
(a)
(b)
(i) An inventory of WBC property must be compiled, evaluated, and all property and the aggregate of usable supplies and materials accounted for in this inventory.
(ii) Program income balances will be reconciled and unused WBC program income which is not used as match or cannot otherwise be used to offset legitimate expenditures of the WBC, must be returned to SBA.
(iii) Client counseling and training records, paper and electronic, will be compiled to facilitate an SBA program closeout review.
(iv) Financial records will be compiled to facilitate a closeout of the SBA financial examination.
(2)
(c)
(2) The AA/OWBO will issue written disposition instructions to the recipient organization providing:
(i) The name and address of the entity or agency to which property and program income must be transferred;
(ii) A date by which the transfer must be completed;
(iii) Actions to be taken regarding property and WBC program income;
(iv) Actions to be taken regarding WBC program records such as client and training files; and
(v) Authorization to incur costs for accomplishing the transfer. Such costs may, when authorized, be applied to residual WBC program income, or Federal or matching funds.
(a) Women's Business Centers, including their contractors and other agents, are not permitted to disclose the name, address, or telephone number of individuals or small businesses that obtain any type of assistance from the program, hereafter referred to as “client contact data,” to any person or entity other than the WBC, without the consent of the Client, except in instances where:
(1) Court orders require the Administrator to do so in any civil or criminal enforcement action initiated by a Federal or State agency;
(2) the Administrator considers such a disclosure to be necessary for the purpose of conducting a financial audit of a center, not including those required under section 130.830, as determined on a case-by-case basis when formal requests are made by a Federal or State agency. Such formal requests must justify and document the need for individual client contact and/or program activity data to the satisfaction of the Administrator;
(3) the agency requires client contact data to directly survey WBC clients.
(b) Women's Business Centers must provide an opportunity for a client to opt-in to allow the SBA to obtain client contact data. The SBA may use the permitted client contact data only to conduct surveys and studies that help stakeholders better understand how the services the client received affect their business outcomes over time. These studies would include, but not be limited to:
(1) Program evaluation and performance management studies;
(2) Measuring the effect and economic or other impact of agency programs;
(3) Assessing public and WBC partner needs;
(4) Measuring customer satisfaction;
(5) Guiding program policy development;
(6) Improving grant-making processes; and
(7) Other areas the SBA determines would be valuable to strengthen the WBC program and/or enhance support for WBC clients.
(c) Women's Business Centers may not deny access to services to clients solely based on their refusal to provide consent as referenced in this section.
(d) All data collections will adhere to 5 CFR 1320. The collection standards and oversight will be coordinated with SBA Office of General Counsel and approved by OMB in compliance with the Paperwork Reduction Act. That process is designed to reduce, minimize and control burdens and maximize the practical utility and public benefit of the information created, collected, disclosed, maintained, used, shared and disseminated.
(e) Any reports or studies on program activity produced by the Administrator and/or a WBC, including its contractors and other agents, may not disseminate client contact data and must only report data in the aggregate. Individual client contact data will not be disclosed in any way that could individually identify a client.
(f) The Administrator and the WBC, including its contractors and other agents, must obtain consent from the client prior to publishing media or reports that identify an individual client.
(g) This section does not restrict the agency in any way from access and use of program performance data.
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for the Cessna Aircraft Company model 525 airplane. This airplane as modified by Cranfield Aerospace Limited will have a novel or unusual design features associated with the installation of a Tamarack Active Technology Load Alleviation System and Cranfield Winglets. These design features will include winglets and an Active Technology Load Alleviation System. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Send your comments on or before December 22, 2016.
Send comments identified by docket number FAA-2016-9409 using any of the following methods:
Mike Reyer, Continued Operational Safety, ACE-113, Small Airplane Directorate, Aircraft Certification Service, 901 Locust; Kansas City, Missouri 64106; telephone (816) 329-4131; facsimile (816) 329-4090.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.
On January 25, 2016, Cranfield Aerospace Limited (CAL) applied for a supplemental type certificate to install winglets on the Cessna Aircraft Company (Cessna) model 525. The Cessna model 525 twin turbofan engine airplane is certified in the normal category for eight seats, including a pilot, a maximum gross weight of 10,700 pounds, and a maximum altitude of 41,000 feet mean sea level.
Special conditions have been applied on past 14 CFR part 25 airplane programs in order to consider the effects on systems on structures. The regulatory authorities and industry developed standardized criteria in the Aviation Rulemaking Advisory Committee (ARAC) forum based on the criteria defined in Advisory Circular 25.672-1, dated November 15, 1983. The ARAC recommendations have been incorporated in the European Aviation Safety Agency Certification Specifications (CS) 25.302 and CS 25, appendix K. The special conditions used for part 25 airplane programs, can be applied to part 23 airplane programs in order to require consideration of the effects of systems on structures. However, some modifications to the part 25 special conditions are necessary to address differences between parts 23 and 25 as well as differences between parts 91 and 121 operating environments.
Winglets increase aerodynamic efficiency. However, winglets also increase wing design static loads, increase the severity of the wing fatigue spectra, and alter the wing fatigue stress ratio, which under limit gust and maneuvering loads factors, may exceed the certificated wing design limits. The addition of the Tamarack Active Technology Load Alleviation System (ATLAS) mitigates the winglet's adverse structural effects by reducing the aerodynamic effectiveness of the winglet when ATLAS senses gust and maneuver loads above a predetermined threshold.
The ATLAS functions as a load-relief system. This is accomplished by measuring airplane loading via an accelerometer and moving an aileron-like device called a Tamarack Active Control Surface (TACS) that reduces lift at the tip of the wing. The TACS are located outboard and adjacent to the left and right aileron control surfaces. The TACS movement reduces lift at the tip of the wing, resulting in the wing spanwise center of pressure moving inboard, thus reducing bending stresses along the wing span. Because the ATLAS compensates for the increased wing root bending at elevated load factors, the overall effect of this modification is that the required reinforcement of the existing Cessna wing structure due to the winglet installation is reduced. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature.
The ATLAS is not a primary flight control system, a trim device, or a wing flap. However, several regulations under Part 23, Subpart D—Design and Construction—Control Systems, have applicability to ATLAS, which might otherwise be considered “Not Applicable” under a strict interpretation of the regulations. These Control System regulations include §§ 23.672, 23.675, 23.677, 23.681, 23.683, 23.685, 23.693, 23.697, and 23.701.
An airplane designed with a load-relief system must provide a equivalent level of safety to an airplane with similar characteristics designed without a load-relief system. In the following special conditions, an equivalent level of safety is provided by relating the required structural safety factor to the probability of load-relief system failure and the probability of exceeding the frequency of design limit and ultimate loads.
These special conditions address several issues with the operation and failure of the load-relief system. These issues include the structural requirements for the system in the fully operational state; evaluation of the effects of system failure, both at the moment of failure and continued safe flight and landing with the failure annunciated to the pilot; and the potential for failure of the failure monitoring/pilot annunciation function.
The structural requirements for the load-relief system in the fully operational state are stated in special condition 2(e) of these special conditions. In this case, the structure must meet the full requirements of part 23, subparts C and D with full credit given for the effects of the load-relief system.
In the event of a load-relief system failure in-flight, the effects on the structure at the moment of failure must be considered as described in special condition 2(f)(l) of these special conditions. These effects include, but are not limited to the structural loads induced by a hard-over failure of the load-relief control surface and oscillatory system failures that may excite the structural dynamic modes. In evaluating these effects, pilot corrective actions may be considered and the airplane may be assumed to be in 1g (gravitation force) flight prior to the load-relief system failure. These special conditions allows credit, in the form of reduced structural factors of safety, based on the probability of failure of the load-relief system. Effects of an in-flight failure on flutter and fatigue and damage tolerance must also be evaluated.
Following the initial in-flight failure, the airplane must be capable of continued safe flight and landing. Special condition 2(f)(2) in these special conditions assumes that a properly functioning, monitoring, and annunciating system has alerted the pilot to the load-relief failure. Since the pilot has been made aware of the load-relief failure, appropriate flight limitations, including speed restrictions, may be considered when evaluating structural loads, flutter, and fatigue and
Special condition 2(g) of these special conditions addresses the failure of the load-relief system to annunciate a failure to the pilot. These special conditions addresses this concern with maintenance actions and requirements for monitoring and annunciation systems.
These special conditions have been modified from previous, similar part 25 special conditions because of the differences between parts 23 and 25 as well as to address the part 91 operating and maintenance environment. Paragraph (c)(3) of the part 25 special condition
Under the provisions of § 21.101, Cranfield Aerspace Limited must show that the Cessna model 525, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A1WI, revision 24, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. A1WI, revision 24 are 14 CFR part 23 effective February 1, 1965, amendments 23-1 through 23-38 and 23-40.
If the Administrator finds the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same or similar novel or unusual design feature, the FAA would apply these special conditions to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Cessna 525 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.
The Cessna model 525 will incorporate the following novel or unusual design features: Cranfield winglets with a Tamarack Active Technology Load Alleviation System.
Airplanes equipped with systems that affect structural performance, either directly or as a result of a failure or malfunction, the applicant must take into account the influence of these systems and their failure conditions when showing compliance with the requirements of part 23, subparts C and D.
The applicant must use the following criteria for showing compliance with these special conditions for airplanes equipped with flight control systems, autopilots, stability augmentation systems, load alleviation systems, flutter control systems, fuel management systems, and other systems that either directly or as a result of failure or malfunction affect structural performance. If these special conditions are used for other systems, it may be necessary to adapt the criteria to the specific system.
As discussed above, these special conditions are applicable to the Cessna model 525. Should Cranfield Aerspace Limited apply at a later date for a supplemental type certificate to modify any other model included on A1WI, revision 24 to incorporate the same novel or unusual design feature, the FAA would apply these special conditions to that model as well.
This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability and it affects only the applicant who applied to the FAA for approval of these features on the airplane.
Aircraft, Aviation safety, Signs and symbols.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Cessna Aircraft Company 525 airplanes modified by Cranfield Aerospace Limited.
The load alleviation system must comply with the following:
(a) A warning, which is clearly distinguishable to the pilot under expected flight conditions without requiring the pilot's attention, must be provided for any failure in the load alleviation system or in any other automatic system that could result in an unsafe condition if the pilot was not aware of the failure. Warning systems must not activate the control system.
(b) The design of the load alleviation system or of any other automatic system must permit initial counteraction of failures without requiring exceptional pilot skill or strength, by either the deactivation of the system or a failed portion thereof, or by overriding the failure by movement of the flight controls in the normal sense.
(1) If deactivation of the system is used to counteract failures, the control for this initial counteraction must be readily accessible to each pilot while operating the control wheel and thrust control levers.
(2) If overriding the failure by movement of the flight controls is used, the override capability must be operationally demonstrated.
(c) It must be shown that, after any single failure of the load alleviation system, the airplane must be safely controllable when the failure or malfunction occurs at any speed or altitude within the approved operating limitations that is critical for the type of failure being considered;
(d) It must be shown that, while the system is active or after any single failure of the load alleviation system—
(1) The controllability and maneuverability requirements of part 23, subpart D, are met within a practical operational flight envelope (
(2) The trim, stability, and stall characteristics are not impaired below a
(a) Proper precautions must be taken to prevent inadvertent or improper operation of the load alleviation system. It must be demonstrated that with the load alleviation system operating throughout its operational range, a pilot of average strength and skill level is able to continue safe flight with no objectionable increased workload.
(b) The load alleviation system must be designed so that, when any one connecting or transmitting element in the primary flight control system fails, adequate control for safe flight and landing is available.
(c) The load alleviation system must be irreversible unless the control surface is properly balanced and has no unsafe flutter characteristics. The system must have adequate rigidity and reliability in the portion of the system from the control surface to the attachment of the irreversible unit to the airplane structure.
(d) It must be demonstrated the airplane is safely controllable and a pilot can perform all maneuvers and operations necessary to effect a safe landing following any load allevation system runaway not shown to be extremely improbable, allowing for appropriate time delay after pilot recognition of the system runaway. The demonstration must be conducted at critical airplane weights and center of gravity positions.
(a) It must be shown by operation tests that, when the flight control system and the load alleviation systems are operated and loaded as prescribed in paragraph (c) of this section, the flight control system and load alleviation systems are free from—
(1) Jamming;
(2) Excessive friction; and
(3) Excessive deflection.
(b) The operation tests in paragraph (a) of this section must also show the load alleviation system and associated surfaces do not restrict or prevent aileron control surface movements, or cause any adverse response of the ailerons, under the loading prescribed in paragraph (c) of this section that would prevent continued safe flight and landing.
(c) The prescribed test loads are for the entire load alleviation and flight control systems, loads corresponding to the limit airloads on the appropriate surfaces.
(a) Each detail of the load alleviation system and related moveable surfaces must be designed and installed to prevent jamming, chafing, and interference from cargo, passengers, loose objects, or the freezing of moisture.
(b) There must be means in the cockpit to prevent the entry of foreign objects into places where they would jam any one connecting or transmitting element of the load alleviation system.
(c) Each element of the load alleviation system must have design features, or must be distinctively and permanently marked, to minimize the possibility of incorrect assembly that could result in malfunctioning of the control system.
(a) The load alleviation control surface must be designed so that during normal operation, when the surface has been placed in any position, it will not move from that position unless the control is adjusted or is moved by the operation of a load alleviation system.
(b) The rate of movement of the control surface in response to the load alleviation system controls must give satisfactory flight and performance characteristics under steady or changing conditions of airspeed, engine power, attitude, flap configuration, speedbrake position, and during landing gear extension and retraction.
(a) The load alleviation system and related movable surfaces as a system must—
(1) Be synchronized by a mechanical interconnection between the movable surfaces or by an approved equivalent means; or
(2) Be designed so the occurrence of any failure of the system that would result in an unsafe flight characteristic of the airplane is extremely improbable; or
(b) The airplane must be shown to have safe flight characteristics with any combination of extreme positions of individual movable surfaces.
(c) If an interconnection is used in multiengine airplanes, it must be designed to account for unsymmetrical loads resulting from flight with the engines on one side of the plane of symmetry inoperative and the remaining engines at takeoff power. For single-engine airplanes, and multiengine airplanes with no slipstream effects on the load alleviation system, it may be assumed that 100 percent of the critical air load acts on one side and 70 percent on the other.
The load alleviation system must comply with §§ 23.675, 23.681, and 23.693 as written and no unique special condition will be required for these regulations.
The load alleviation system must comply with §§ 23.675, 23.681, and 23.693 as written and no unique special condition will be required for these regulations.
(a) The criteria defined herein only address the direct structural consequences of the system responses and performances and cannot be considered in isolation but should be included in the overall safety evaluation of the airplane. These criteria may in some instances duplicate standards already established for this evaluation. These criteria are only applicable to structure whose failure could prevent continued safe flight and landing. Specific criteria that define acceptable limits on handling characteristics or stability requirements when operating in the system degraded or inoperative mode are not provided in this special condition.
(b) Depending upon the specific characteristics of the airplane, additional studies may be required that go beyond the criteria provided in this special condition in order to demonstrate the capability of the airplane to meet other realistic conditions such as alternative gust or maneuver descriptions for an airplane equipped with a load alleviation system.
(c) The following definitions are applicable to this special condition.
(1)
(2)
(3) Reserved.
(4)
(5)
(d)
(e)
(1) Limit loads must be derived in all normal operating configurations of the system from all the limit conditions specified in subpart C (or defined by special condition or equivalent level of safety in lieu of those specified in subpart C), taking into account any special behavior of such a system or associated functions or any effect on the structural performance of the airplane that may occur up to the limit loads. In particular, any significant nonlinearity (rate of displacement of control surface, thresholds or any other system nonlinearities) must be accounted for in a realistic or conservative way when deriving limit loads from limit conditions.
(2) The airplane must meet the strength requirements of part 23 (static strength and residual strength for failsafe or damage tolerant structure), using the specified factors to derive ultimate loads from the limit loads defined above. The effect of nonlinearities must be investigated beyond limit conditions to ensure the behavior of the system presents no anomaly compared to the behavior below limit conditions. However, conditions beyond limit conditions need not be considered when it can be shown that the airplane has design features that will not allow it to exceed those limit conditions.
(3) The airplane must meet the aeroelastic stability requirements of § 23.629.
(f)
(1)
(i) For static strength substantiation, these loads, multiplied by an appropriate factor of safety that is related to the probability of occurrence of the failure, are ultimate loads to be considered for design. The factor of safety is defined in figure 1.
(ii) For residual strength substantiation, the airplane must be able to withstand two thirds of the ultimate loads defined in subparagraph (f)(1)(i).
(iii) For pressurized cabins, these loads must be combined with the normal operating differential pressure.
(iv) Freedom from aeroelastic instability must be shown up to the speeds defined in § 23.629(f). For failure conditions that result in speeds beyond V
(v) Failures of the system that result in forced structural vibrations (oscillatory failures) must not produce loads that could result in detrimental deformation of primary structure.
(2)
(i) The loads derived from the following conditions (or defined by special condition or equivalent level of safety in lieu of the following conditions) at speeds up to V
(A) The limit symmetrical maneuvering conditions specified in §§ 23.321, 23.331, 23.333, 23.345, 23.421, 23.423, and 23.445.
(B) The limit gust and turbulence conditions specified in §§ 23.341, 23.345, 23.425, 23.443, and 23.445.
(C) The limit rolling conditions specified in § 23.349 and the limit unsymmetrical conditions specified in §§ 23.347, 23.427, and 23.445.
(D) The limit yaw maneuvering conditions specified in §§ 23.351, 23.441, and 23.445.
(E) The limit ground loading conditions specified in §§ 23.473 and 23.493.
(ii) For static strength substantiation, each part of the structure must be able to withstand the loads in paragraph (f)(2)(i) of this special condition multiplied by a factor of safety depending on the probability of being in this failure state. The factor of safety is defined in figure 2.
(iii) For residual strength substantiation, the airplane must be able to withstand two thirds of the ultimate loads defined in paragraph (f)(2)(ii) of this special condition. For pressurized cabins, these loads must be combined with the normal operating pressure differential.
(iv) If the loads induced by the failure condition have a significant effect on fatigue or damage tolerance then their effects must be taken into account.
(v) Freedom from aeroelastic instability must be shown up to a speed determined from figure 3. Flutter clearance speeds V′ and V″ may be based on the speed limitation specified for the remainder of the flight using the margins defined by § 23.629.
(vi) Freedom from aeroelastic instability must also be shown up to V′ in figure 3 above, for any probable system failure condition combined with any damage required or selected for investigation by §§ 23.571 through 23.574.
(3) Consideration of certain failure conditions may be required by other sections of 14 CFR part 23 regardless of calculated system reliability. Where analysis shows the probability of these failure conditions to be less than 10
(g)
(1) The system must be checked for failure conditions, not extremely improbable, that degrade the structural capability below the level required by part 23 or significantly reduce the reliability of the remaining system. As far as reasonably practicable, the flightcrew must be made aware of these failures before flight. Certain elements of the control system, such as mechanical and hydraulic components, may use special periodic inspections, and electronic components may use daily checks, in lieu of detection and indication systems to achieve the objective of this requirement. These certification maintenance requirements must be limited to components that are not readily detectable by normal detection and indication systems and where service history shows that inspections will provide an adequate level of safety.
(2) The existence of any failure condition, not extremely improbable, during flight that could significantly affect the structural capability of the airplane and for which the associated reduction in airworthiness can be minimized by suitable flight limitations, must be signaled to the flightcrew. The probability of not annunciating these failure conditions must be extremely improbable (unannunciated failure). For example, failure conditions that result in a factor of safety between the airplane strength and the loads of subpart C below 1.25, or flutter margins below V″, must be signaled to the flightcrew during flight.
(h)
(i)
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM); Reopening of comment period.
This action reopens the comment period for an NPRM that was published on October 17, 2016. In that document, the FAA proposed to revise its rules for pilot compartment view to allow ground tests to demonstrate compliance for night operations. The FAA is extending the comment period closing date to allow time to adequately analyze the draft advisory circulars (ACs) associated with the proposed rule and prepare comments.
The comment period for the NPRM published on October 17, 2016, and closed November 16, 2016, and is reopened until December 13, 2016.
You may send comments identified by docket number FAA-2016-9275 using any of the following methods:
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Thuy H. Cooper, ARM-106, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591, telephone (202) 267-4715; email
See the “Additional Information” section for information on how to comment on this proposal and how the FAA will handle comments received. The “Additional Information” section also contains related information about the docket, privacy, the handling of proprietary or confidential business information. In addition, there is information on obtaining copies of related rulemaking documents.
On October 17, 2016, the FAA issued Notice No. 16-07, entitled “Rotorcraft Pilot Compartment View” (81 FR 71415). Comments to that document were to be received on or before November 16, 2016.
The FAA did not post for public comment the draft ACs associated with the NPRM until November 9, 2016.
Absent unusual circumstances, the FAA does not anticipate any further extension of the comment period for this rulemaking.
The FAA has determined that extension of the comment period is consistent with the public interest, and that good cause exists for taking this action.
Accordingly, the comment period for Notice No. 16-07 is reopened until December 13, 2016.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The agency may change this proposal in light of the comments it receives.
An electronic copy of rulemaking documents may be obtained from the Internet by—
1. Searching the Federal eRulemaking Portal (
2. Visiting the FAA's Regulations and Policies Web page at
3. Accessing the Government Printing Office's Web page at
Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Commenters must identify the docket or notice number of this rulemaking.
All documents the FAA considered in developing this proposed rule,
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede Airworthiness Directive (AD) 2008-12-04, which applies to certain Boeing Model 737-600, -700, -700C, -800, and -900 series airplanes. AD 2008-12-04 currently requires various repetitive inspections to detect cracks along the chem-milled steps of the fuselage skin, and to detect missing or loose fasteners in the area of the preventive modification or repairs, replacement of the time-limited repair with the permanent repair if applicable, and applicable corrective actions, if necessary, which would end certain repetitive inspections. Since we issued AD 2008-12-04, an evaluation by the design approval holder (DAH) has indicated that the upper skin panel at the chem-milled step above the lap joint is subject to widespread fatigue damage (WFD) if the modification was installed after 30,000 total flight cycles. This proposed AD would reduce the post-modification inspection compliance times, limit installation of the preventive modification to airplanes with fewer than 30,000 total flight cycles, and add repetitive inspections for modified airplanes. We are proposing this AD to detect and correct cracking of the upper skin panel at the chem-milled step above the lap joint, which could result in reduced structural integrity of the airplane.
We must receive comments on this proposed AD by January 6, 2017.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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• Fax: 202-493-2251.
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For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740; telephone 562-797-1717; Internet
You may examine the AD docket on the Internet at
Gaetano Settineri, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6577; fax: 425-917-6590; email:
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
We will post all comments we receive, without change, to
Fatigue damage can occur locally, in small areas or structural design details, or in widespread areas. Multiple-site damage is widespread damage that occurs in a large structural element such as a single rivet line of a lap splice joining two large skin panels. Widespread 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. This condition is known as widespread fatigue damage. It is associated with general degradation of large areas of structure with similar structural details and stress levels. 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
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 May 29, 2008, we issued AD 2008-12-04, Amendment 39-15547 (73 FR 32991, June 11, 2008) (“AD 2008-12-04”), for certain Boeing Model 737-600, -700, -700C, -800, and -900 series airplanes. AD 2008-12-04 requires various repetitive inspections to detect cracks along the chem-milled steps of the fuselage skin, and to detect missing or loose fasteners in the area of the preventive modification or repairs, replacement of the time-limited repair with the permanent repair if applicable, and applicable corrective actions, if necessary, which would end certain repetitive inspections. AD 2008-12-04 resulted from a fatigue test that revealed numerous cracks in the upper skin panel at the chem-milled step above the lap joint. We issued AD 2008-12-04 to detect and correct such fatigue-related cracks, which could result in the crack tips continuing to turn and grow to the point where the skin bay flaps open, causing decompression of the airplane.
Since we issued AD 2008-12-04, an evaluation by the DAH indicated that the upper skin panel at the chem-milled step above the lap joint is subject to WFD if the modification was installed after that airplane had accumulated 30,000 total flight cycles. We have determined that it is necessary to reduce the post-modification inspection compliance times, limit installation of the preventive modification to airplanes that have accumulated fewer than 30,000 total flight cycles, and add repetitive inspections for modified airplanes.
We reviewed Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. This service information describes procedures for an external detailed inspection and an external nondestructive inspection (NDI) for cracks in the fuselage skin at chem-milled steps. Corrective actions include a permanent or time-limited repair, a preventive modification, and replacement of loose and missing fasteners. Related investigative actions include internal and external detailed inspections of the repair area. 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
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.
Although this proposed AD does not explicitly restate the requirements of AD 2008-12-04, this proposed AD would retain all requirements of AD 2008-12-04. Those requirements are referenced in the service information identified previously, which, in turn, is referenced in paragraphs (g), (h), and (i) of this proposed AD. This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between this AD and the Service Information.” This proposed AD would reduce the post-modification compliance times required by AD 2008-12-04, limit installation of the preventive modification to airplanes that have not yet accumulated 30,000 total flight cycles, and add repetitive post-modification inspections and applicable corrective actions.
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.
Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, specifies to contact the manufacturer for certain instructions, but this proposed AD would require accomplishment of repair methods, modification deviations, and alteration deviations 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.
We estimate that this proposed AD affects 376 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary repairs and replacements that would be required based on the results of the proposed inspections. We have no way of determining the number of aircraft that might need these replacements:
We have received no definitive data that would enable us to provide cost estimates for the related investigative actions, certain repairs, and other applicable actions specified in this proposed AD.
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.
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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this AD action by January 6, 2017.
This AD replaces AD 2008-12-04, Amendment 39-15547 (73 FR 32991, June 11, 2008) (“AD 2008-12-04”).
This AD applies to The Boeing Company Model 737-600, -700, -700C, -800, and -900 series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by an evaluation by the design approval holder (DAH) that indicated that the upper skin panel at the chem-milled step above the lap joint is subject to widespread fatigue damage (WFD) if the modification was installed after 30,000 total flight cycles. We are issuing this AD to detect and correct cracking of the upper skin panel at the chem-milled step above the lap joint, which could result in reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
At locations where a preventive modification, time-limited repair, or permanent repair has not been installed as specified in Boeing Service Bulletin 737-53A1232: At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, do an external detailed inspection and an inspection specified in either paragraph (g)(1) or (g)(2) of this AD, for any crack in the fuselage skin at the chem-milled steps at specified locations, in accordance with Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. Do all applicable related investigative and corrective actions before further flight in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, except as required by paragraph (l)(1) of this AD. Repeat the inspections thereafter at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015.
(1) Do an external medium frequency eddy current (MFEC), or magneto optic imager (MOI), or C-Scan inspection.
(2) Do an external ultrasonic phased array (UTPA) inspection.
At any location with a preventive modification installed as specified in Boeing Alert Service Bulletin 737-53A1232: At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, except as required by paragraph (l)(2) of this AD, do the actions specified in paragraphs (h)(1) and (h)(2) of this AD.
(1) Do external detailed and external high frequency and medium frequency eddy current inspections for any crack, in accordance with Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. If no crack is found during the inspection, repeat the inspections thereafter at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. If any crack is found during any inspection required by this paragraph, repair before further flight, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, except as required by paragraph (l)(1) of this AD.
(2) Do a detailed inspection for any crack and any loose or missing fasteners, in accordance with Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. Repeat the inspections thereafter at applicable time specified in paragraph 1.E, “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. If a crack is found during the inspection, or any loose or missing fastener is found, before further flight, do all applicable corrective actions, in accordance with Part V of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, except as specified in paragraph (l)(1) of this AD.
(1) Except for preventive modifications installed on airplanes listed in Appendix A of Boeing Alert Service Bulletin 737-53A1232 at the specified total flight cycles, at any location where a preventive modification as specified in Boeing Alert Service Bulletin 737-53A1232 was installed after the accumulation of 30,000 total flight cycles: At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, except as required by paragraph (l)(2) of this AD, do all applicable investigative and corrective actions using a method approved in accordance with the procedures specified in paragraph (p) of this AD.
(2) For airplanes which have installed supplemental type certificate (STC) ST01697SE (
At any location where a permanent repair has been installed as specified in Boeing Service Bulletin 737-53A1232: At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015: Do the inspections specified in paragraph (j)(1) or (j)(2) of this AD, in accordance with Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. Repeat the inspections thereafter at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. Do all applicable related investigative and corrective actions before further flight in accordance with Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, except as required by paragraph (l)(1) of this AD.
(1) Do an external low frequency eddy current (LFEC) inspection for any crack, and doubler external LFEC and external detailed inspections for any crack and loose or missing fasteners.
(2) Do an external LFEC inspection for any crack, and doubler external LFEC and external detailed inspections for any crack and loose or missing fasteners; and an internal MFEC for any crack.
At any location where a chem-milled time-limited repair is installed, do the actions specified in paragraphs (k)(1) and (k)(2) of this AD, at the applicable time specified in 1.E. “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015.
(1) Do internal and external detailed inspections of the time-limited repair for any crack, or loose or missing fasteners, in accordance with Part IV of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. Repeat the inspections thereafter at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. If any crack is found during the inspection, or if any loose or missing fastener is found, before further flight, do all applicable corrective actions, in accordance with Part IV of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, except as specified in paragraph (l)(1) of this AD.
(2) Replace the time-limited repair with the permanent repair, in accordance with Part IV of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015.
(1) Where Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, specifies to contact Boeing for repair instructions, this AD requires repair before further flight using a method approved in accordance with the procedures specified in paragraph (p) of this AD.
(2) Where paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, specifies a compliance time “after the date of Revision 2 of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.
(1) For airplanes that have accumulated 30,000 total flight cycles or fewer, or for airplanes on which supplemental type certificate (STC) ST0l697SE (
(2) Installation of a permanent repair as specified in Part III of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, or a time-limited repair as specified in Part IV of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, terminates the inspections required by paragraph (g) of this AD in the repaired areas only.
As of the effective date of this AD, installation of the preventive modification specified in Boeing Alert Service Bulletin 737-53A1232, is prohibited on the airplanes identified in paragraphs (n)(1) and (n)(2) of this AD.
(1) Airplanes that have accumulated more than 30,000 total flight cycles.
(2) Airplanes which have installed STC ST01697SE and that have accumulated more than 15,000 total flight cycles.
This paragraph provides credit for the corresponding actions specified in paragraphs (g), (h), (i), (j), (k), and (m) of this AD, if those actions were performed before the effective date of this AD using the service information identified in paragraph (o)(1), (o)(2), or (o)(3) of this AD.
(1) Boeing Special Attention Service Bulletin 737-53A1232, dated April 2, 2007, which was incorporated by reference in AD 2008-12-04.
(2) Boeing Special Attention Service Bulletin 737-53A1232, Revision 1, dated May 18, 2012, which is not incorporated by reference in this AD.
(3) Boeing Special Attention Service Bulletin 737-53A1232, Revision 2, dated July 26, 2013, which is not incorporated by reference in this AD.
(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 (q)(1) of this AD. Information may be emailed to:
(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
(4) AMOCs approved previously for repairs or preventive modifications for AD 2008-12-04 are approved as AMOCs for the installation of the repair or preventive modification specified in this AD, provided all post-repair or post-modification inspections are done at the applicable times specified in the AMOC, or in tables 1a, 1b, 2, and 3 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, whichever occurs first.
(1) For more information about this AD, contact Gaetano Settineri, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6577; fax: 425-917-6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740; telephone 562-797-1717; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E airspace extending upward from 700 feet above the surface at Manti-Ephraim Airport, Manti, UT, to accommodate new Instrument Flight Rules (IFR) operations for standard instrument approach and departure procedures. The establishment of Class E airspace is necessary to support the safety and management of IFR operations at the airport.
Comments must be received on or before January 6, 2017.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1-800-647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2016-8164; Airspace Docket No. 15-ANM-25, at the beginning of your comments. You may also submit comments through the Internet at
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4511.
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 establish Class E airspace at Manti-Ephraim Airport, Manti, UT.
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. Persons 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-2016-8164/Airspace Docket No. 15-ANM-25.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11A, Airspace
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet above the surface at Manti-Ephraim Airport, Manti, UT. Class E airspace would be established within a 4-mile radius of the Manti-Ephraim Airport, with segments extending from the 4-mile radius to 11 miles southwest of the airport, and 7.2 miles northeast of the airport. This airspace is necessary to support the development of IFR operations in standard instrument approach and departure procedures at the airport.
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
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.
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.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 4-mile radius of Manti-Ephraim Airport, and that airspace 2 miles either side of the airport 225° bearing extending from the 4-mile radius to 11 miles southwest of the airport, and 1.8 miles east of the line beginning at lat. 39°17′50″ N., long. 111°39′27″ W., to lat. 39°14′35″ N., long. 111°41′06″ W., and that airspace beginning at the point where the 065° bearing from the airport intersects the 4-mile radius to lat. 39°26′34″ N., long. 111°31′41″ W., to lat. 39°26′54″ N., long. 111°36′20″ W., to the point where the 001° bearing from the airport intersects the 4-mile radius, thence clockwise along the 4-mile radius to the point of beginning.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E airspace at Kill Devil Hills, NC, to accommodate new Area Navigation (RNAV) Global Positioning System (GPS) Standard Instrument Approach Procedures (SIAPs) serving First Flight Airport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at the heliport.
Comments must be received on or before January 6, 2017.
Send comments on this rule to: U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Bldg Ground Floor, Rm W12-140, Washington, DC 20590; Telephone: 1-800-647-5527, or 202-647-9826.You must identify the Docket No. FAA-2016-9266; Airspace Docket No. 16-ASO-5, at the beginning of your comments. You may also submit and review received comments through the Internet at
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
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 proposed 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 establish Class E airspace at First Flight Airport, Kill Devil Hills, NC.
Interested persons are invited to comment on this proposed rule 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. You may also submit comments through the Internet at
Persons 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 Docket No. FAA-2016-9266; Airspace Docket No. 16-ASO-5.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace at Kill Devil Hills, NC, providing the controlled airspace required to support the new RNAV (GPS) standard instrument approach procedures for First Flight Airport. Controlled airspace extending upward from 700 feet above the surface within a 6.5-mile radius of the airport would be established for IFR operations.
Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
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 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.
This proposal would 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.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of First Flight Airport.
Alcohol and Tobacco Tax and Trade Bureau.