Federal Register Vol. 81, No.71,

Federal Register Volume 81, Issue 71 (April 13, 2016)

Page Range21699-22021
FR Document

81_FR_71
Current View
Page and SubjectPDF
81 FR 22021 - Amending Executive Order 12137PDF
81 FR 22019 - National Former Prisoner of War Recognition Day, 2016PDF
81 FR 22017 - Pan American Day and Pan American Week, 2016PDF
81 FR 22015 - National Volunteer Week, 2016PDF
81 FR 22011 - National Crime Victims' Rights Week, 2016PDF
81 FR 21932 - Order of Suspension of Trading; In the Matter of Business Marketing Services, Inc., Diversified Corporate Resources, Inc., Great Lakes Recreation Co., Green Nature USA, Inc., Green St. Energy, Inc., International Total Services, Inc., J.P. Cabot Realty, Inc., Multicom Publishing, Pan American Resources, Inc., Printron, Inc., Seaboard Associates, Inc., Sona Mobile Holdings Group, Ltd., Standard Holdings Group, Ltd., TraceGuard Technologies, Inc., Tradings.net, Inc., US-Worldlink.com, Inc., Versadial, Inc., Voxcorp, Inc., and W3OTC, Inc.PDF
81 FR 21949 - Meeting of the Regional Resource Stewardship Council; CorrectionPDF
81 FR 21909 - Temporary Emergency Committee of the Board of Governors; Sunshine Act MeetingPDF
81 FR 21882 - Circulatory System Devices Panel of the Medical Devices Advisory Committee; Notice of MeetingPDF
81 FR 21887 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of MeetingsPDF
81 FR 21884 - National Institute on Deafness and Other Communication Disorders; Notice of Closed MeetingsPDF
81 FR 21908 - Mail Classification ChangePDF
81 FR 21881 - Board of Scientific Counselors, National Center for Health Statistics (BSC, NCHS)PDF
81 FR 21880 - Mine Safety and Health Research Advisory Committee, National Institute for Occupational Safety and Health (MSHRAC, NIOSH)PDF
81 FR 21878 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial ReviewPDF
81 FR 21878 - Advisory Board on Radiation and Worker Health (ABRWH or Advisory Board), National Institute for Occupational Safety and Health (NIOSH): Notice of Charter Re-establishmentPDF
81 FR 21880 - Advisory Committee on Immunization Practices: Notice of Charter RenewalPDF
81 FR 21906 - Agency Information Collection Activities: Comment RequestPDF
81 FR 21881 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial ReviewPDF
81 FR 21837 - Privacy Act of 1974; Amended System of RecordsPDF
81 FR 21752 - Acequinocyl; Pesticide TolerancesPDF
81 FR 21830 - Significant New Use Rule on Certain Chemical SubstancesPDF
81 FR 21950 - Notice of Request To Release Airport PropertyPDF
81 FR 21882 - Announcing the Award of a Single Source Expansion Supplement to Community Action Partnership in Washington, DCPDF
81 FR 21905 - Proposed Extension of Existing Collection; Comment RequestPDF
81 FR 21883 - Public Meeting of the Presidential Commission for the Study of Bioethical IssuesPDF
81 FR 21862 - Availability of Final NPDES General Permit for Stormwater Discharges From Small Municipal Separate Storm Sewer Systems in MassachusettsPDF
81 FR 21949 - Advisory Committee on International Economic PolicyPDF
81 FR 21840 - Freshwater Crawfish Tail Meat from the People's Republic of China: Final Results of Antidumping Duty Administrative Review and New Shipper Reviews; 2013-2014PDF
81 FR 21843 - Certain Steel Grating From the People's Republic of China: Preliminary Results of Antidumping Administrative Review and Preliminary Determination of No Shipments; 2014-2015PDF
81 FR 21842 - United States Investment Advisory CouncilPDF
81 FR 21864 - Orientation Session for the Chemical Safety Advisory Committee; Notice of Public MeetingPDF
81 FR 21887 - Chemical Security Assessment Tool (CSAT)PDF
81 FR 21891 - Exercise of Authority under Section 212(d)(3)(B)(i) of the Immigration and Nationality ActPDF
81 FR 21851 - Cheniere Marketing, LLC & Corpus Christi Liquefaction, LLC, Cheniere Marketing, LLC, Corpus Christi Liquefaction, LLC, Sabine Pass Liquefaction, LLC, Statement Regarding Change in ControlPDF
81 FR 21808 - Proposed Priorities, Requirements, and Definitions-Disability Innovation Fund-Transition Work-Based Learning Model DemonstrationsPDF
81 FR 21863 - Extension of Public Comment Period for the Draft EPA-USGS Technical Report: Protecting Aquatic Life From Effects of Hydrologic AlterationPDF
81 FR 21952 - Internal Revenue Service Advisory Council (IRSAC); NominationsPDF
81 FR 21840 - Manufacturing Council: Renewal of the Manufacturing Council CharterPDF
81 FR 21706 - Classes of PoultryPDF
81 FR 21756 - Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod in the Bering Sea Subarea of the Bering Sea and Aleutian Islands Management AreaPDF
81 FR 21849 - Negotiation of a Reciprocal Defense Procurement Memorandum of Understanding With the Ministry of Defense of LatviaPDF
81 FR 21870 - Notice of Agreements FiledPDF
81 FR 21699 - Margin Protection Program for DairyPDF
81 FR 21881 - Proposed Information Collection Activity; Comment RequestPDF
81 FR 21847 - Fisheries of the South Atlantic; South Atlantic Fishery Management Council (Council)-Scientific and Statistical Committee Meeting; Social and Economic Sciences Panel MeetingPDF
81 FR 21848 - Fisheries of the Gulf of Mexico; Southeast Data, Assessment and Review (SEDAR); Gulf of Mexico Data-limited Species (Red Drum, Lane Snapper, Wenchman, Yellowmouth Grouper, Speckled Hind, Snowy Grouper, Almaco Jack, Lesser Amberjack)PDF
81 FR 21758 - Eligibility of Honduras To Export Poultry Products to the United StatesPDF
81 FR 21858 - City of Loveland, Co; Notice of Authorization for Continued Project OperationPDF
81 FR 21861 - Yuba County Water Agency; Notice of Authorization for Continued Project OperationPDF
81 FR 21860 - Notice of Commission Staff AttendancePDF
81 FR 21862 - Live Oak Solar, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 21859 - Commission Information Collection Activities (FERC-539); Comment Request; ExtensionPDF
81 FR 21850 - Notice of Intent To Grant Partially Exclusive Patent License; BladeBeam, Inc.PDF
81 FR 21850 - Notice of Availability of Government-Owned Inventions; Available for LicensingPDF
81 FR 21898 - Notice of 2-year Extension of the Temporary Closure of the Ash Springs Recreation Site on Public Lands in Lincoln County, NVPDF
81 FR 21949 - SJI Board of Directors MeetingPDF
81 FR 21944 - Social Security Ruling, SSR 16-4p; Titles II and XVI: Using Genetic Test Results To Evaluate DisabilityPDF
81 FR 21907 - Proposed Emergency Preparedness Frequently Asked QuestionsPDF
81 FR 21846 - Mid-Atlantic Fishery Management Council (MAFMC); MeetingPDF
81 FR 21951 - Developing Evidence Based Fatigue Risk Management Guidelines for Emergency Medical Services: First Expert Panel MeetingPDF
81 FR 21873 - GSA Labor-Management Relations Council Meeting CancellationPDF
81 FR 21768 - Airworthiness Directives; International Aero Engines AG Turbofan EnginesPDF
81 FR 21870 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
81 FR 21837 - South Central Idaho Resource Advisory CommitteePDF
81 FR 21892 - Endangered and Threatened Wildlife and Plants; Permit ApplicationsPDF
81 FR 21904 - Petitions for Modification of Application of Existing Mandatory Safety StandardsPDF
81 FR 21951 - Notice To Rescind a Notice of Intent for an Environmental Impact Statement for the Kake Access Project in Southeast AlaskaPDF
81 FR 21899 - Notice of Inventory Completion: History Colorado, Formerly Colorado Historical Society, Denver, COPDF
81 FR 21902 - Notice of Intent To Repatriate Cultural Items: History Colorado, formerly Colorado Historical Society, Denver, COPDF
81 FR 21899 - Notice of Intent To Repatriate Cultural Items: History Colorado, Formerly Colorado Historical Society, Denver, COPDF
81 FR 21901 - Notice of Inventory Completion: U.S. Department of the Interior, Bureau of Land Management, Nevada State Office, Reno, NVPDF
81 FR 21903 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Reinstatement, With Change, of a Previously Approved Collection for Which Approval Has Expired: 2016 Law Enforcement Administrative and Management Statistics (LEMAS) SurveyPDF
81 FR 21872 - Submission for OMB Review; Change Order AccountingPDF
81 FR 21909 - Public Company Accounting Oversight Board; Notice of Filing of Proposed Amendments to Board Rules Relating to InspectionsPDF
81 FR 21876 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
81 FR 21878 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
81 FR 21865 - Information Collections Being Submitted for Review and Approval to the Office of Management and BudgetPDF
81 FR 21867 - Information Collections Approved by the Office of Management and BudgetPDF
81 FR 21868 - Information Collections Being Submitted for Review and Approval to the Office of Management and BudgetPDF
81 FR 21869 - Public Safety and Homeland Security Bureau; Federal Advisory Committee Act; Task Force on Optimal Public Safety Answering Point ArchitecturePDF
81 FR 21885 - Office of the Director, Office of Science Policy, Office of Biotechnology Activities; Notice of MeetingPDF
81 FR 21885 - National Institute on Alcohol Abuse and Alcoholism; Notice of Closed MeetingPDF
81 FR 21885 - National Eye Institute; Notice of MeetingPDF
81 FR 21886 - National Center for Advancing Translational Sciences; Notice of Closed MeetingPDF
81 FR 21884 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 21886 - Center for Scientific Review; Notice of Closed MeetingPDF
81 FR 21849 - Public Availability of Fiscal Year 2015 Service Contract InventoryPDF
81 FR 21847 - Ocean Exploration Advisory BoardPDF
81 FR 21935 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to PIXLPDF
81 FR 21933 - Self-Regulatory Organizations; ISE Mercury; Notice of Filing of Proposed Rule Change To Limit Mandatory Participation in Scheduled Functional and Performance Testing Under Regulation SCI to Only Those Primary Market Makers That Meet Specified CriteriaPDF
81 FR 21928 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule To Amend the Fees SchedulePDF
81 FR 21931 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Order Approving a Proposed Rule Change Relating to LMMs and DPMsPDF
81 FR 21921 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rules 7015(g)(1) and 7034PDF
81 FR 21914 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Order Approving a Proposed Rule Change To Require Registration as Securities Traders of Associated Persons Primarily Responsible for the Design, Development, Significant Modification of Algorithmic Trading Strategies or Responsible for the Day-to-Day Supervision of Such ActivitiesPDF
81 FR 21924 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Order Approving Proposed Rule Change To Adopt FINRA Rule 3210 (Accounts at Other Broker-Dealers and Financial Institutions), as Modified by Partial Amendment No. 1 and Partial Amendment No. 2, in the Consolidated FINRA RulebookPDF
81 FR 21916 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 1, To List and Trade Shares of the WBI Tactical Rotation Shares Under NYSE Arca Equities Rule 8.600PDF
81 FR 21950 - Aerospace Fuel, Engine Oil, and Hydraulic Hose AssembliesPDF
81 FR 21836 - Kootenai National Forest; Fortine Ranger District; Montana; Ten Lakes Travel Management ProjectPDF
81 FR 21845 - Nondestructive Evaluation Techniques for Assessing Alkali-Silica Reaction Degradation of Concrete ConsortiumPDF
81 FR 21860 - Combined Notice of FilingsPDF
81 FR 21859 - Combined Notice of Filings #2PDF
81 FR 21857 - Records Governing Off-the-Record Communications; Public NoticePDF
81 FR 21856 - Public Utility District No. 2 of Grant County; Notice of Application and Soliciting Comments, Motions To Intervene, and ProtestsPDF
81 FR 21861 - Grand River Dam Authority; Notice Granting Waiver Request To Reduce Comment Period From 60 to 30 Days on Draft Amendment ApplicationPDF
81 FR 21861 - Tennessee Gas Pipeline Company, L.L.C.; Notice of Revised Schedule for Environmental Review of the Triad Expansion ProjectPDF
81 FR 21853 - Combined Notice of FilingsPDF
81 FR 21858 - Combined Notice of Filings #1PDF
81 FR 21839 - Environmental Technologies Trade Advisory Committee Public MeetingPDF
81 FR 21943 - Texas Disaster Number TX-00465PDF
81 FR 21943 - Mississippi Disaster Number MS-00084PDF
81 FR 21951 - Reports, Forms and Record Keeping Requirements; Agency Information Collection Activity Under OMB ReviewPDF
81 FR 21943 - Louisiana Disaster Number LA-00062PDF
81 FR 21874 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
81 FR 21850 - Notice of Public Meeting for EAC Standards Board (Correction)PDF
81 FR 21871 - Information Collection; Notification of Ownership ChangesPDF
81 FR 21873 - Information Collection; Contract Funding-Limitation of Costs/FundsPDF
81 FR 21870 - Submission for OMB Review; Economic Price AdjustmentPDF
81 FR 21735 - Establishment of Class E Airspace, South Bend, WAPDF
81 FR 21772 - Proposed Amendment of Class D and E Airspace and Revocation of Class E Airspace; Sioux City, IAPDF
81 FR 21774 - Proposed Amendment of Class E Airspace for the Following Louisiana Towns; De Quincy, LA; Minden, LA; Slidell, LA; and Revocation of Class E Airspace; Homer, LAPDF
81 FR 21814 - Finding of Attainment and Approval of Attainment Plan for Klamath Falls, Oregon Fine Particulate Matter Nonattainment AreaPDF
81 FR 21730 - Airworthiness Directives; Airbus AirplanesPDF
81 FR 21762 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 21716 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 21732 - Airworthiness Directives; Airbus AirplanesPDF
81 FR 21770 - Airworthiness Directives; Dassault AviationPDF
81 FR 21766 - Airworthiness Directives; Airbus Defense and Space S.A. (Formerly Known as Construcciones Aeronauticas, S.A.) AirplanesPDF
81 FR 21709 - Airworthiness Directives; Bombardier, Inc. AirplanesPDF
81 FR 21953 - Debt Management Advisory Committee MeetingPDF
81 FR 21726 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 21722 - Airworthiness Directives; Airbus AirplanesPDF
81 FR 21711 - Airworthiness Directives; SOCATA AirplanesPDF
81 FR 21795 - Deemed Distributions Under Section 305(c) of Stock and Rights to Acquire StockPDF
81 FR 21747 - Approval and Promulgation of Implementation Plans; Texas; Control of Air Pollution From Nitrogen Compounds State Implementation PlanPDF
81 FR 21775 - Rules of Practice for Adjudicative ProceedingsPDF
81 FR 21955 - National Organic Program; Organic Livestock and Poultry PracticesPDF
81 FR 21713 - Airworthiness Directives; Airbus Helicopters (formerly Eurocopter France)PDF
81 FR 21735 - Promulgation of Air Quality Implementation Plans; Arizona; Regional Haze Federal Implementation Plan; ReconsiderationPDF
81 FR 21720 - Airworthiness Directives; The Boeing Company AirplanesPDF

Issue

81 71 Wednesday, April 13, 2016 Contents Agency Health Agency for Healthcare Research and Quality NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 21874-21876 2016-08403 Agency Toxic Agency for Toxic Substances and Disease Registry NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 21876-21878 2016-08443 Agricultural Marketing Agricultural Marketing Service PROPOSED RULES National Organic Program: Organic Livestock and Poultry Practices, 21956-22009 2016-08023 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Commodity Credit Corporation

See

Food Safety and Inspection Service

See

Forest Service

Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 21878-21880 2016-08442 Charter Renewals: Advisory Board on Radiation and Worker Health, 21878 2016-08517 Advisory Committee on Immunization Practices, 21880-21881 2016-08516 Meetings: Board of Scientific Counselors, National Center for Health Statistics, 21881 2016-08520 Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, 21878, 21881 2016-08514 2016-08518 Mine Safety and Health Research Advisory Committee, National Institute for Occupational Safety and Health, 21880 2016-08519 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Child Care and Development Fund (CCDF) Tribal Reporting Requirements, 21881-21882 2016-08481 Single-Source Expansion Supplements: Community Action Partnership in Washington, DC, 21882 2016-08506 Commerce Commerce Department See

International Trade Administration

See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

NOTICES Privacy Act; Systems of Records, 21837-21839 2016-08513
Commodity Credit Commodity Credit Corporation RULES Margin Protection Program for Dairy, 21699-21706 2016-08482 Commodity Futures Commodity Futures Trading Commission NOTICES Public Availability of Fiscal Year 2015 Service Contract Inventory, 21849 2016-08431 Consumer Product Consumer Product Safety Commission PROPOSED RULES Rules of Practice for Adjudicative Proceedings, 21775-21795 2016-08125 Defense Acquisition Defense Acquisition Regulations System NOTICES Negotiation of a Reciprocal Defense Procurement Memorandum of Understanding with the Ministry of Defense of Latvia, 21849-21850 2016-08485 Defense Department Defense Department See

Defense Acquisition Regulations System

See

Navy Department

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Change Order Accounting, 21872-21873 2016-08447 Contract Funding -- Limitation of Costs/Funds, 21873 2016-08400 Economic Price Adjustment, 21870-21871 2016-08399
Education Department Education Department PROPOSED RULES Priorities, Requirements, Definitions, and Selection Criteria: Disability Innovation Fund -- Transition Work-Based Learning Model Demonstrations, 21808-21814 2016-08492 Election Election Assistance Commission NOTICES Meetings: Standards Board; Correction, 21850-21851 2016-08402 Energy Department Energy Department See

Federal Energy Regulatory Commission

NOTICES Changes in Control: Cheniere Marketing, LLC, Corpus Christi Liquefaction, LLC, Sabine Pass Liquefaction, LLC, 21851-21853 2016-08493
Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Regional Haze Federal Implementation Plan; Reconsideration, 21735-21747 2016-07911 Texas; Control of Air Pollution from Nitrogen Compounds State Implementation Plan, 21747-21752 2016-08158 Pesticide Tolerances: Acequinocyl, 21752-21756 2016-08512 PROPOSED RULES Finding of Attainment and Approval of Attainment Plans: Klamath Falls, OR Fine Particulate Matter Nonattainment Area, 21814-21830 2016-08384 Significant New Use Rule on Certain Chemical Substances, 21830-21835 2016-08511 NOTICES EPA-USGS Technical Report: Protecting Aquatic Life from Effects of Hydrologic Alteration, 21863-21864 2016-08491 Meetings: Orientation Session for the Chemical Safety Advisory Committee, 21864-21865 2016-08496 NPDES General Permits: Stormwater Discharges From Small Municipal Separate Storm Sewer Systems in Massachusetts, 21862-21863 2016-08503 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Airplanes, 21722-21726, 21732-21735 2016-08267 2016-08352 Airbus Helicopters (formerly Eurocopter France), 21713-21716 2016-07979 Bombardier, Inc. Airplanes, 21709-21711 2016-08346 SOCATA Airplanes, 21711-21713 2016-08262 The Boeing Company Airplanes, 21716-21722, 21726-21729 2016-07839 2016-08271 2016-08359 Airworthiness Directives; Airbus Airplanes, 21730-21732 2016-08366 Establishment of Class E Airspace: South Bend, WA; Correction, 21735 2016-08395 PROPOSED RULES Airworthiness Directives: Airbus Defense and Space S.A. (Formerly Known as Construcciones Aeronauticas, S.A.) Airplanes, 21766-21768 2016-08350 Dassault Aviation, 21770-21772 2016-08351 International Aero Engines AG Turbofan Engines, 21768-21770 2016-08462 The Boeing Company Airplanes, 21762-21766 2016-08365 Amendments of Class D and E Airspace and Revocations of Class of Class E Airspace: Sioux City, IA, 21772-21773 2016-08394 Amendments of Class E Airspace and Revocations of Class E Airspace: De Quincy, LA, Minden, LA, Slidell, LA; Homer, LA, 21774-21775 2016-08393 NOTICES Aerospace Fuel, Engine Oil, and Hydraulic Hose Assemblies, 21950 2016-08421 Request To Release Airport Property, 21950-21951 2016-08507 Federal Communications Federal Communications Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 21865-21869 2016-08439 2016-08440 2016-08441 Meetings: Public Safety and Homeland Security Bureau, 21869-21870 2016-08438 Federal Energy Federal Energy Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 21859-21860 2016-08472 Applications: Grand River Dam Authority Project, 21861 2016-08412 Public Utility District No. 2 of Grant County Project, 21856-21857 2016-08413 Authorization for Continued Project Operation: City of Loveland, CO, 21858 2016-08476 Yuba County Water Agency, 21861-21862 2016-08475 Combined Filings, 21853-21856, 21858-21861 2016-08409 2016-08410 2016-08415 2016-08416 Environmental Assessments; Availability, etc.: Revised Schedule for Environmental Review of the Triad Expansion Project, 21861 2016-08411 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Live Oak Solar, LLC, 21862 2016-08473 Records Governing Off-the-Record Communications, 21857-21858 2016-08414 Staff Attendances, 21860 2016-08474 Federal Highway Federal Highway Administration NOTICES Environmental Impact Statements; Availability, etc.: Kake Access Project, Southeast Alaska; Recisssion, 21951 2016-08456 Federal Maritime Federal Maritime Commission NOTICES Agreements Filed, 21870 2016-08483 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 21870 2016-08461 Fish Fish and Wildlife Service NOTICES Endangered and Threatened Wildlife and Plants Permit Applications, 21892-21898 2016-08459 Food and Drug Food and Drug Administration NOTICES Meetings: Circulatory System Devices Panel of the Medical Devices Advisory Committee, 21882-21883 2016-08530 Food Safety Food Safety and Inspection Service RULES Classes of Poultry, 21706-21709 2016-08488 PROPOSED RULES Eligibility of Honduras to Export Poultry Products to the United States, 21758-21762 2016-08478 Forest Forest Service NOTICES Environmental Impact Statements; Availability, etc.: Kootenai National Forest; Fortine Ranger District; Montana; Ten Lakes Travel Management Project, 21836 2016-08420 Meetings: South Central Idaho Resource Advisory Committee, 21837 2016-08460 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Change Order Accounting, 21872-21873 2016-08447 Contract Funding -- Limitation of Costs/Funds, 21873 2016-08400 Economic Price Adjustment, 21870-21871 2016-08399 Notification of Ownership Changes, 21871-21872 2016-08401 Meetings: GSA Labor-Management Relations Council; Cancellation, 21873-21874 2016-08463 Health and Human Health and Human Services Department See

Agency for Healthcare Research and Quality

See

Agency for Toxic Substances and Disease Registry

See

Centers for Disease Control and Prevention

See

Children and Families Administration

See

Food and Drug Administration

See

National Institutes of Health

NOTICES Meetings: Presidential Commission for the Study of Bioethical Issues, 21883-21884 2016-08504
Homeland Homeland Security Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Chemical Security Assessment Tool, 21887-21891 2016-08495 Exercise of Authority under the Immigration and Nationality Act, 21891-21892 2016-08494 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

National Park Service

Internal Revenue Internal Revenue Service PROPOSED RULES Deemed Distributions of Stock and Rights to Acquire Stock, 21795-21808 2016-08248 NOTICES Requests for Nominations: Internal Revenue Service Advisory Council, 21952-21953 2016-08490 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Steel Grating from the People's Republic of China, 21843-21845 2016-08500 Freshwater Crawfish Tail Meat from the People's Republic of China, 21840-21842 2016-08501 Charter Renewal: Manufacturing Council, 21840 2016-08489 Meetings: Environmental Technologies Trade Advisory Committee Public Meeting, 21839-21840 2016-08408 Requests for Nominations: United States Investment Advisory Council, 21842-21843 2016-08499 Justice Department Justice Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: 2016 Law Enforcement Administrative and Management Statistics Survey, 21903-21904 2016-08448 Labor Department Labor Department See

Mine Safety and Health Administration

See

Workers Compensation Programs Office

Land Land Management Bureau NOTICES Temporary Closure of the Ash Springs Recreation Site on Public Lands in Lincoln County, NV; Extensions, 21898-21899 2016-08469 Mine Mine Safety and Health Administration NOTICES Petitions for Modification: Applications of Existing Mandatory Safety Standards, 21904-21905 2016-08457 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Change Order Accounting, 21872-21873 2016-08447 Contract Funding -- Limitation of Costs/Funds, 21873 2016-08400 Economic Price Adjustment, 21870-21871 2016-08399 National Highway National Highway Traffic Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 21951 2016-08405 Meetings: Developing Evidence Based Fatigue Risk Management Guidelines for Emergency Medical Services, 21951-21952 2016-08464 National Institute National Institute of Standards and Technology NOTICES Nondestructive Evaluation Techniques for Assessing Alkali-Silica Reaction Degradation of Concrete Consortium, 21845-21846 2016-08418 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 21884, 21886 2016-08432 2016-08433 National Center for Advancing Translational Sciences, 21886-21887 2016-08434 National Eye Institute, 21885 2016-08435 National Institute of Diabetes and Digestive and Kidney Diseases, 21887 2016-08525 National Institute on Alcohol Abuse and Alcoholism, 21885 2016-08436 National Institute on Deafness and Other Communication Disorders, 21884-21885 2016-08524 National Science Advisory Board for Biosecurity, 21885-21886 2016-08437 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Pacific Cod in the Bering Sea Subarea of the Bering Sea and Aleutian Islands Management Area, 21756-21757 2016-08487 NOTICES Meetings: Fisheries of the Gulf of Mexico; Southeast Data, Assessment and Review; Gulf of Mexico Data-limited Species, 21848-21849 2016-08479 Mid-Atlantic Fishery Management Council, 21846-21847 2016-08465 Office of Ocean Exploration and Research, 21847-21848 2016-08430 South Atlantic Fishery Management Council; Scientific and Statistical Committee; Social and Economic Sciences Panel, 21847 2016-08480 National Park National Park Service NOTICES Inventory Completions: Department of the Interior, Bureau of Land Management, Nevada State Office, Reno, NV, 21901-21902 2016-08450 History Colorado, formerly Colorado Historical Society, Denver, CO, 21899-21900 2016-08453 Repatriation of Cultural Items: History Colorado, formerly Colorado Historical Society, Denver, CO, 21899, 21902-21903 2016-08451 2016-08452 National Science National Science Foundation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 21906-21907 2016-08515 Navy Navy Department NOTICES Government-Owned Inventions; Available for Licensing, 21850 2016-08470 Grants of Partially Exclusive Patent Licenses: BladeBeam, Inc., 21850 2016-08471 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Proposed Emergency Preparedness Frequently Asked Questions, 21907-21908 2016-08466 Postal Regulatory Postal Regulatory Commission NOTICES Mail Classification Change, 21908-21909 2016-08522 Postal Service Postal Service NOTICES Meetings; Sunshine Act, 21909 2016-08581 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: National Crime Victims' Rights Week (Proc. 9418), 22011-22014 2016-08699 National Former Prisoner of War Recognition Day (Proc. 9421), 22019-22020 2016-08710 National Volunteer Week (Proc. 9419), 22015-22016 2016-08703 Pan American Day and Pan American Week (Proc. 9420), 22017-22018 2016-08706 EXECUTIVE ORDERS Amending Executive Order 12137 (EO 13724), 22021 2016-08713 Securities Securities and Exchange Commission NOTICES Filings: Proposed Amendments to Board Rules Relating to Inspections, 21909-21914 2016-08444 Self-Regulatory Organizations; Proposed Rule Changes: Chicago Board Options Exchange, 21931-21932 2016-08426 Chicago Board Options Exchange, Inc., 21928-21931 2016-08427 Financial Industry Regulatory Authority, Inc., 21914-21916, 21924-21928 2016-08423 2016-08424 ISE Mercury, 21933-21935 2016-08428 NASDAQ PHLX LLC, 21935-21943 2016-08429 NYSE Arca, Inc., 21916-21921 2016-08422 The NASDAQ Stock Market LLC, 21921-21924 2016-08425 Trading Suspension Orders: Business Marketing Services, Inc., Diversified Corporate Resources, Inc., Great Lakes Recreation Co., et al., 21932-21933 2016-08611 Small Business Small Business Administration NOTICES Disaster Declarations: Louisiana, 21943-21944 2016-08404 Mississippi, 21943 2016-08406 Texas, 21943 2016-08407 Social Social Security Administration NOTICES Rulings: Using Genetic Test Results to Evaluate Disability, 21944-21949 2016-08467 State Department State Department NOTICES Meetings: Advisory Committee on International Economic Policy, 21949 2016-08502 State Justice State Justice Institute NOTICES Meetings: SJI Board of Directors, 21949 2016-08468 Tennessee Tennessee Valley Authority NOTICES Meetings: Regional Resource Stewardship Council; Correction, 21949-21950 2016-08592 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

National Highway Traffic Safety Administration

Treasury Treasury Department See

Internal Revenue Service

NOTICES Meetings: Debt Management Advisory Committee, 21953 2016-08285
Workers' Workers Compensation Programs Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 21905-21906 2016-08505 Separate Parts In This Issue Part II Agriculture Department, Agricultural Marketing Service, 21956-22009 2016-08023 Part III Presidential Documents, 22011-22021 2016-08699 2016-08710 2016-08703 2016-08706 2016-08713 Reader Aids

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

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81 71 Wednesday, April 13, 2016 Rules and Regulations DEPARTMENT OF AGRICULTURE Commodity Credit Corporation 7 CFR Part 1430 RIN 0560-AI36 Margin Protection Program for Dairy AGENCY:

Commodity Credit Corporation and Farm Service Agency, USDA.

ACTION:

Final rule.

SUMMARY:

This rule amends the regulations for the Margin Protection Program for Dairy (MPP-Dairy) to allow dairy operations to update their production history when a son, daughter, grandchild, or spouse of a child or grandchild of a current producer participating in the MPP-Dairy program joins the operation. In addition, this rule provides for a later due date for the payment of the entire premium and clarifies that dairy operations that purchase buy-up coverage on less than 90 percent of their production history will also receive catastrophic coverage on the balance, up to 90 percent of the production history. The rule also makes corrections and clarifications.

DATES:

This rule is effective April 13, 2016.

FOR FURTHER INFORMATION CONTACT:

For MPP-Dairy: Danielle Cooke; telephone: (202) 720-1919. Persons with disabilities who require alternative means for communication should contact the USDA Target Center at (202) 720-2600.

SUPPLEMENTARY INFORMATION:

Background

On August 29, 2014, the Commodity Credit Corporation (CCC) and Farm Service Agency (FSA) published a final rule titled “Margin Protection Program for Dairy and Dairy Product Donation Program” (79 FR 51453-51470). The final rule implemented MPP-Dairy and DPDP as authorized in the Agricultural Act of 2014 (the 2014 Farm Bill, Pub. L. 113-79). FSA operates both programs using CCC funds. Following the August 2014 final rule, in response to public comments on the final rule, FSA and CCC published a comment period extension on October 30, 2014, (79 FR 64503) for the final rule; comments were accepted through December 15, 2014. This rule makes regulatory changes to MPP-Dairy in response to the public comments and also makes minor corrections and clarifications. Specifically, this rule:

• Allows dairy operations to update their production history once during the term of the contract (through December 31, 2018) to accommodate intergenerational transfers where a son, daughter, grandchild, or spouse of a child or grandchild joins the dairy operation;

• Clarifies that dairy operations that purchase buy-up coverage on less than 90 percent of their production history will also receive catastrophic coverage on the balance, up to 90 percent of the production history;

• Sets a later final premium payment due date to allow greater flexibility for dairy operations in making payments; and

• Includes technical amendments that make minor corrections and clarify the effects of failure to pay administrative or premium fees.

Subtitle D, sections 1401-1410, of the 2014 Farm Bill (7 U.S.C. 9051-9060) authorizes MPP-Dairy to provide risk management coverage that will pay producers when the difference between the price of milk and the cost of feed (the margin) falls below a certain dollar amount selected by the producer. Producers are eligible for catastrophic level margin protection (based on a $4 margin and 90 percent production history coverage) for their dairy operations by paying an administrative fee, and are also able to purchase greater coverage (up to $8 margin on 25 to 90 percent of production history) for an additional premium.

A production history is established when a dairy operation first registers to participate in MPP-Dairy. The production history is based on the operation's production from 2011 through 2013, as specified in the 2014 Farm Bill. For entirely new operations or operations with less than a full year of production history prior to the 2014 Farm Bill, it is based on the number of cows and the national average production per cow (the “national rolling herd average data”) or an extrapolation from the operation's actual production data. As specified in section 1405 of the 2014 Farm Bill, once an operation has bought MPP-Dairy coverage, FSA will only update the production amount that can be covered to reflect annual changes in the national average milk production. (For example, if national milk production increases 5 percent in a year, operations can buy MPP-Dairy coverage on up to 5 percent more production the following year, up to 90 percent of production). Section 1410 of the 2014 Farm Bill also specifically requires that the Secretary promulgate regulations that prohibit a dairy producer from reconstituting an operation for the purpose of receiving margin protection payments. The intent of these provisions is to ensure that the risk management coverage does not encourage excess production that could drive down the price of milk, which would be counterproductive for a price-based risk management program.

In the August 29, 2014, final rule, FSA requested comments about the establishment of additional production history and any limitations for such a production increase under MPP-Dairy since that final rule only addressed additional production history for the annual adjustment based on an increase to the national average milk production. The final rule did not address the establishment of additional production history for a participating dairy operation in specific instances, such as when a descendent of the current producer joins a participating dairy operation.

The ability to transfer the dairy business from one generation to the next has become increasingly difficult in the past decade due to increased market volatility and the large capital investment required to start a dairy operation. While the August 29, 2014, regulation does allow for new covered production for entirely new operations, many new dairy farmers get started by joining their family's existing dairy operation, due to the capital costs involved. Under the August 29, 2014, rule, if an existing family-owned dairy operation with MPP-Dairy coverage added more cows to support a family member or members joining the business, they would not be able to buy MPP-Dairy coverage on that additional production.

Comments and Responses

In response to the August 29, 2014, final rule, FSA received 38 comments. Comments were submitted by individuals, insurance providers, industry groups (including coalitions, associations, farm credit organizations, dairy cooperatives, and milk marketing companies), and a State Department of Agriculture.

The preamble to the August 29, 2014, final rule asked for public input on three specific questions about intergenerational transfers and family members, as well as general comments on other aspects of MPP-Dairy. All of the comments received on intergenerational transfers supported provisions to allow additional production history under certain circumstances, with various suggestions for what eligibility requirements should be. A summary of the input received on three questions, and our responses, is provided below, followed by a discussion of other general comments received.

Do the provisions in the rule regarding transfers of production history hinder intergenerational transfers of dairy operations? If so, how?

Comment: Yes, the provisions in the final rule hinder intergenerational transfers. Under current MPP-Dairy rules, once the production history for a dairy operation under MPP-Dairy is established, other than the annual production increase, the production history cannot not be adjusted to support the income needs of two or more families (or one extended family) in instances when a dairy farmer wants to bring on a son or daughter or spouse of a son or daughter and add more cows to the herd.

Response: We agree. The average age of dairy farmers in the United States is 62 years old; allowing intergenerational transfers of production history will facilitate the transfer of dairy operations to the next generation, which is particularly important for small family operations. Therefore, this rule will amend production history requirements to add § 1430.105(g) to specify that a dairy operation may add additional production history for an intergenerational transfer when a lineal descendant, or spouse thereof, joins a participating dairy operation. In addition, this rule adds a definition of “intergenerational transfer” to § 1430.102. Only sons, daughters, grandchildren, and their spouses are included in the definition. Intergenerational transfers to more distant non-lineal relatives such as cousins, nieces, or nephews will not result in eligibility for additional production history, nor will transfers to siblings.

How would you suggest the rule be amended to accommodate intergenerational transfers or adult children who want to join their parent's dairy operation and obtain additional production history for the dairy operation?

Comment: Suggestions included:

• Allow a one-time reorganization of the ownership structure to allow for children, grandchildren, or their spouses joining the farm, but specify that the additional member(s) must meet certain requirements, such as minimum labor contribution and equity ownership standards; significant equity ownership should be at least 10 percent individually or at least 25 percent collectively, if multiple new members are joining the dairy operation at the same time;

• Require that the farm provide adequate supporting documentation of a legitimate restructure within a family operation that includes verifiable financial investments proportionate to the income needs of the new farmer and the size of the dairy operation;

• Restrict it to a lineal descendant or their spouse, not a distant relative;

• Determine additional production history using similar provisions for establishing production history for new dairy operations in § 1430.105(b) where the additional production quantity would be estimated based on the number of additional cows added to the herd multiplied by the national “rolling herd average” production data published by the Secretary; and

• To ensure all production from the additional member is protected, either allow an operation's base to be a rolling average of the last 3 years of production or allow 50 percent of production above the base, including the adjustment for the average national increase to be included with the base calculation during times when MPP-Dairy activates.

Response: This rule amends production history requirements to allow for a one-time restructuring of currently established production history for a dairy operation when a son, daughter, grandchild, or spouse of child or grandchild of a current operation member joins an MPP-Dairy participating operation, to accommodate the transfer of a dairy from one generation to a subsequent generation. The increase to the production history will be based on how many cows are being added and the national rolling herd average data (national average annual production per cow) in effect at the time of the intergenerational transfer. The operation must certify to equity and labor contributions by the new member(s) as well, as specified in this rule. The certification must show that the new member(s) has a significant equity ownership in the participating MPP-Dairy operation; “significant equity ownership” will be at levels determined by the Deputy Administrator and announced on the FSA Web site (www.fsa.usda.gov). The certification must also show that each new member is working full time at the dairy, or transitioning to working full time at the dairy. We considered an income-based standard, but that would not be consistent with the provisions in the regulation that apply to the production history for other existing and new operations, which use past production and size of herd to determine production history.

The participating dairy operation will have the option for coverage of the additional production history to begin with either the next consecutive 2-month period following notification to FSA, or January 1 following notification.

For cow purchases made by the new members between January 1, 2016, and June 30, 2016, the operation must notify FSA during the coverage year 2017 registration and annual coverage election period that begins July 1, 2016. For cow purchases made on or after July 1, 2016, notification to FSA must be made within 60 days of purchasing the additional cows.

Participating dairy operations in which an intergenerational transfer occurred in calendar year 2014 or 2015 will have an opportunity to increase the dairy operation's production history during the 2017 registration period. The 2014 and 2015 intergenerational transfers will have to meet the same requirements specified for all intergenerational transfers, except for the 60-day notification period applicable only to the purchase of additional cows made on or after July 1, 2016. The opportunity to increase production history based on an intergenerational transfer that occurred in 2014 or 2015 will only be available during the registration and annual coverage election period that begins July 1, 2016. This provision only applies to an increase in production history for 2016 and subsequent year coverage. These dairy operations will have the option for their coverage to begin on either the consecutive 2-month period following FSA notification or January 1, 2017. There will be no retroactive payments made related to 2014 or 2015 intergenerational transfers.

Premiums for additional production coverage will be due at the same time as the premium on existing production, if the notification is made between January 1 and August 31, prior to the September 1 premium deadline, or immediately if notification is made during September 1 to December 31.

If additions to production history based on intergenerational transfers or adult children joining family dairies are allowed, should there be a cap on the overall amount of production history that cannot be exceeded or a percentage or quantity limitation on the amount by which the production history could be increased per participating dairy operation under this provision? If so, what amount?

Comments: Suggestions included:

• Yes, there should be a cap on the additional production quantity resulting from the intergenerational transfer in order to discourage gaming of the system;

• A production quantity capped at 4 million pounds is consistent with other limitations of the same production quantity specified in the 2014 Farm Bill with respect to the 2-tier premium rate schedule that increases premium rates for production history in excess of 4 million pounds;

• For the production increase, use a percentage based on the farm's production history and the total number of members receiving income from the farm, compared before and after the new generation was included;

• The production allowance increase should be proportionate to the income needs of the new farmer and not proportional to the size of the dairy;

• Up to 4 million pounds of new production history can be added to the established production history for a member joining the dairy operation with a pro-rated accommodation for growth beyond that limit.

Response: The suggested 4 million pound cap is consistent with the intent of the 2014 Farm Bill to support modest-sized family farms, as demonstrated in the 2-tier premium structure where the discounted first tier is set at 4 million pounds. Therefore, this rule caps the production history increase for an intergenerational transfer at a maximum of 4 million pounds.

Other Issues Raised in Public Comments

Comment: Producers who bought coverage above the minimum catastrophic level on some production should receive catastrophic level coverage on all production history up to 90 percent. In the current regulations, producers must choose either a buy-up coverage or catastrophic coverage, but not both. Providing catastrophic level coverage to all participants on 90 percent of production is a reasonable interpretation of the 2014 Farm Bill intent.

Response: After careful analysis, we agree, and are changing the regulations to allow participants who purchase buy-up level coverage on less than 90 percent of their production history to receive in addition catastrophic level coverage on the balance, up to 90 percent of their production history. The total coverage cannot exceed the statutory maximum of 90 percent of production history. We believe that MPP-Dairy will be improved by allowing operations that cover from 25 percent to 85 percent of their production history at a buy-up coverage level from $4.50 to $8.00 per cwt, to also be covered for the balance of their established production history at the $4.00 catastrophic level. For example, if an operation purchased buy-up coverage at the 50 percent level, then that operation will receive catastrophic level coverage for the next 40 percent resulting in total coverage of 90 percent. This provision would not affect an operation purchasing buy-up coverage at the 90 percent level since it would already be covered at the maximum statutory percentage. This change will allow producers to better meet their risk management needs and will not discourage producers from electing buy-up coverage with greater protection. Therefore, this rule revises § 1430.108 to make the changes to how payments will be calculated. The change will provide producers with more risk management options and may increase producer participation in MPP-Dairy. Implementation of this change will begin with the 2016 coverage year. Since MPP-Dairy's inception, margin levels have been consistently above the $4.00 catastrophic level; so, implementing this policy will have no immediate impact on current MPP-Dairy participants.

Comment: Clarify inconsistencies in the premium payment schedule in § 1430.107(g)(2), which requires 50 percent of the total premium payment by February 1 of the coverage year and the balance by June 1; and the Fact Sheet and forms that say 25 percent by February 1 of the coverage year and the balance by the June 1. The Fact Sheet and forms for MPP Dairy are not consistent with the rule.

Premium payment options should be allowed on a monthly or bi-monthly basis rather than annually or semi-annually. A premium payment option should allow milk marketing companies to collect and send premium payments to FSA on behalf of the dairy operation by way of milk check deductions of premiums on a monthly basis by the dairy operation's milk marketing company.

Response: We agree that MPP-Dairy would be improved by providing additional premium payment options. Therefore, effective with the 2016 coverage year, rather than require the balance of the premium collection in two payment installments by June 1 of the coverage year, the rule will change § 1430.107 to require 100 percent of the payment by September 1 of the coverage year. This would allow dairy producers to make arrangements with their milk marketing companies to prorate and deduct their premium payment from their monthly milk check and to send the CCC payments to FSA on behalf of the producer. We will correct the Fact Sheet and forms as noted in the comment when this rule is published.

This rule makes conforming changes in § 1430.107(g)(2), (h), (i), and (j). For example, due to the split premiums provision in the August 29, 2014, regulation, an option had been included to deduct premium balances from MPP-Dairy payments. Now that the premium payment is due in a single payment, that option is being removed from § 1430.107(g)(2), (h), (i).

Comment: Dairy producers should be able to participate in both the Livestock Gross Margin for Dairy Producers (LGM-Dairy) Program and MPP-Dairy. They should be able to buy LGM-Dairy coverage on milk not covered under MPP-Dairy up to 100 percent of their dairy operation's total production.

Revise the rules to allow dairy operations to choose annually whether or not to participate in LGM-Dairy or MPP-Dairy and not require mandatory participation in MPP-Dairy through 2018 to allow flexibility to move back and forth from LGM-Dairy and MPP-Dairy.

Response: The 2014 Farm Bill specifies that a dairy operation may participate in either LGM-Dairy or MPP-Dairy, but not both. Therefore, we do not have statutory authority to make either of these changes to the regulations. Additionally, section 1404 of the 2014 Farm Bill specifies that the MPP-Dairy administrative fee must be paid annually by the participant; so, clearly the intent of the legislation is that participants continue participation for the duration of MPP-Dairy (because there would be no need for an “annual” payment for a policy that only lasted 1 year). Therefore, no change is being made in response to these comments.

Comments: Make an adjustment to increase the overall production history established for a dairy operation to allow for greater protection and the expansion or growth of the operation. New production rules should allow for full recognition of growth up to 4 million pounds and then a base that would allow some pro-rated accommodation for growth beyond that limit. Recognize new milk marketings for farms in transition as new operations and allow beginning farmers to adjust production history when purchasing an existing dairy operation. Allow production adjustments for disaster counties.

Response: The 2014 Farm Bill clearly limits increases in production history to annual adjustments to reflect any increase in the national average milk production per cow, with limited authority to update production history for changes in ownership structure. The 2014 Farm Bill does not provide the authority to add production history for other reasons, including business expansions or declared disaster counties, and specifically prohibits reconstitutions for the purpose of increasing MPP-Dairy payments. The new provisions in this rule for adjustments to production history for intergenerational transfers is based on the authority of section 1401(5)(B) of the 2014 Farm Bill that allows for the Secretary to determine additional ownership structures to be covered by the definition of a dairy operation, in this case the addition of a son, daughter, grandchild, or spouse of a child or grandchild to the dairy operation. Since the 2014 Farm Bill does not authorize any other reasons for adjustments to the established production history for the dairy operation, no change is being made in response to these comments.

Comments: For the production history covered under MPP-Dairy, allow extrapolation for a full 12 months of production as is done for new operations for those producers who missed some production months in 2013 during the period between of January 2, 2013 through February 7, 2014.

Response: Producers that marketed milk from January 2, 2013, through February 7, 2014 (date of 2014 Farm Bill enactment) do not meet the legislative definition of a new dairy operation because they would have been marketing milk for more than 12 months; therefore, the date of the 2014 Farm Bill enactment was used as a benchmark to establish the 12-month period from which to determine new operations. Defining the 12-month period from any other date would exclude more dairy operations from eligibility. Therefore, no change is being made in response to this comment.

Comment: MPP-Dairy payments should be made on a monthly or bi-monthly basis rather than on a consecutive 2-month period when a payment is triggered.

Response: The 2014 Farm Bill specifies the schedule for MPP-Dairy payments. We have no authority to implement a different schedule. Therefore, no change is being made in response to this comment.

Comment: The premium discount applicable to the first 4 million pounds of production history in 2014 and 2015 should continue for the duration of MPP-Dairy. Premiums would continue to rise to the point that they are unaffordable for farmers because there is no margin trigger to reduce production because of price losses due to over-production.

Response: The annual premium rates listed in the regulation are specified in the 2014 Farm Bill. FSA has no authority to set different premium rates other than those in the 2014 Farm Bill. Therefore, no change is being made in response to these comments.

Comments: For coverage under MPP-Dairy, documented production over the national average of production per cow should be insured.

Organic farms should have more coverage because of higher overall feed costs that make their margins lower than conventional farms.

Response: The 2014 Farm Bill does not authorize additional coverage for production over the national average or different coverage for organic farmers. Therefore, no change is being made in response to these comments.

Comment: For the cost of production in relation to feed costs and milk prices, the 2014 Farm Bill should have been similar to that of the Federal Milk Marketing Improvement Act of 2011 (S. 1640, 112th Congress) to provide adequate prices to farmers. MPP-Dairy did not adequately cover the farmers cost of production and is inadequate protection on feed cost. Feed prices are higher on the west coast and prices for specific feed ingredients used in calculating the margin have not dropped much in that region of the United States.

Response: Congress did not enact the bill titled “Federal Milk Marketing Improvement Act of 2011.” We are required to implement MPP-Dairy as specified in the 2014 Farm Bill. The 2014 Farm Bill specified that the margin is to be calculated using a national average feed cost and the national all-milk price. Therefore, no change is being made in response to these comments.

Comment: The affiliation test for what constitutes a new dairy operation is impractical. Producers that have collectively more than a 50 percent ownership in another dairy operation should be able to get coverage for a new operation, if they can demonstrate that the operation is separate and distinct from the existing dairy operation, but the new and existing dairy operation would be restricted from selling or exiting the dairy business.

Response: Section 1410 of the 2014 Farm Bill specifically states that the regulations must prohibit producers from dairy operation reconstitutions for the purposes of receiving MPP-Dairy payments. The provision in § 1430.103 that a new dairy operation will be treated as an affiliated dairy operation if the producers in the new operation own 50 percent of an existing dairy operation is consistent with the farm reconstitution provisions in 7 CFR part 718, which are intended to prohibit reconstitutions for the purposes of increasing other CCC and FSA program payments. FSA believes the provisions to accommodate new dairy operations as specified in the current rule are within the 2014 Farm Bill authority, and are consistent with how reconstitutions and base acres are handled in the regulations for other CCC and FSA programs. The provisions in this rule for intergenerational transfers are intended to address expansions of existing dairy operations to add additional family members within the same operation. Also, we have no authority to prevent any dairy operation from selling or shutting down. No change is made in response to this comment.

Comment: Are MPP-Dairy funds sufficient to reimburse farmers in the event of a shortfall? Will funds be invested within insurance companies?

Response: FSA administers MPP-Dairy using CCC funds and not through private insurance companies; therefore, FSA may use CCC borrowing authority to replenish funds as necessary. Private insurers are not involved in MPP-Dairy.

Corrections and Clarifications

This final rule revises § 1430.104(b)(1), to correct wording that allows a new dairy operation to elect coverage that begins the next consecutive 2-month period following the submission date of the registration and coverage election rather than the approval date of the MPP-Dairy coverage application.

This final rule also revises §§ 1430.106(c), 1430.109(a)(2), and 1430.112(b) to clarify the effects of failure to pay the administrative or premium fees. Failure to pay the administrative fee timely will result in loss of coverage for the applicable calendar year; however, coverage for the applicable calendar year may be reinstated with the next consecutive 2-month period if paid late and the appropriate CCC form is submitted to FSA. In the case of unpaid premiums, coverage will be reduced to the catastrophic level and no payment will be earned at the buy-up level for the rest of the year. This rule also amends § 1430.112(b) to correct the cross reference from § 1430.108 to § 1430.109.

This final rule also revises §§ 1430.106(a) and 1430.107(l) to correct that fees should be made payable to CCC rather than to FSA.

This rule amends §§ 1430.107 and 1430.111 to remove provisions that only applied to the 2014 and 2015 coverage years.

Notice and Comment

In general, the Administrative Procedure Act (5 U.S.C. 553) requires that a notice of proposed rulemaking be published in the Federal Register and interested persons be given an opportunity to participate in the rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation, except when the rule involves a matter relating to public property, loans, grants, benefits, or contracts. Regulations to implement the provisions of Title I of the 2014 Farm Bill and the administration of Title I are exempt from the notice and comment provisions of 5 U.S.C. 553 and the Paperwork Reduction Act (44 U.S.C. chapter 35), as specified in section 1601(c)(2) of the 2014 Farm Bill.

Effective Date

The Administrative Procedure Act (5 U.S.C. 553) provides generally that before rules are issued by Government agencies, the rule is required to be published in the Federal Register, and the required publication of a substantive rule is to be not less than 30 days before its effective date. One of the exceptions is when the agency finds good cause for not delaying the effective date. Subsection 1601(c)(2) of the 2014 Farm Bill makes this final rule exempt from notice and comment. Therefore, using the administrative procedure provisions in 5 U.S.C. 553, FSA finds that there is good cause for making this rule effective less than 30 days after publication in the Federal Register. Therefore, to continue providing benefits to operations in a timely fashion, the MPP-Dairy regulations in 7 CFR part 1430, subpart A are effective when published in the Federal Register.

Executive Orders 12866 and 13563

Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

The Office of Management and Budget (OMB) designated this rule as not significant under Executive Order 12866, “Regulatory Planning and Review,” and therefore, OMB has not reviewed this rule.

Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA, Pub. L. 104-121), generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act or any other law, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule is not subject to the Regulatory Flexibility Act because the 2014 Farm Bill exempts this rule from notice and comment rulemaking under 5 U.S.C. 553 with respect to MPP-Dairy and therefore, FSA is not required by any law to publish a proposed rule for public comment for this rulemaking.

Environmental Review

The environmental impacts of this final rule have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and the FSA regulations for compliance with NEPA (7 CFR part 799). FSA has determined that the provisions identified in this final rule are administrative in nature, intended to clarify the mandatory requirements of the programs, as defined in the 2014 Farm Bill, and do not constitute a major Federal action that would significantly affect the quality of the human environment, individually or cumulatively. The discretionary feature of the rule include when operations can increase production history and what coverage they will receive. These discretionary provisions are purely administrative and would not alter any environmental impacts resulting from implementing the mandatory program. Therefore, as this rule presents administrative clarifications only, FSA will not prepare an environmental assessment or environmental impact statement for this regulatory action.

Executive Order 12372

Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened Federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal Financial assistance and direct Federal development. For reasons specified in the final rule related notice regarding 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the programs and activities within this rule are excluded from the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.

Executive Order 12988

This rule has been reviewed under Executive Order 12988, “Civil Justice Reform.” This rule will not preempt State or local laws, regulations, or policies unless they represent an irreconcilable conflict with this rule. The rule will have a retroactive effect that will allow a production history increase for dairy operations that had an intergenerational transfer occur in calendar year 2014 or 2015. However, there will not be any retroactive payments for the production history increase. Before any judicial action may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR parts 11 and 780 are to be exhausted.

Executive Order 13132

This rule has been reviewed under Executive Order 13132, “Federalism.” The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government, except as required by law. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

Executive Order 13175

This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

FSA has assessed the impact of this rule on Indian tribes and determined that this rule does not, to our knowledge, have tribal implications that require tribal consultation under Executive Order 13175. If a Tribe requests consultation, FSA will work with the USDA Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions, and modifications identified in this rule are not expressly mandated by the 2014 Farm Bill.

The Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments, or the private sector. Agencies generally need to prepare a written statement, including a cost-benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any year for State, local, or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates, as defined in Title II of UMRA, for State, local, and Tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)

This rule is not a major rule under SBREFA. Therefore, FSA is not required to delay the effective date for 60 days from the date of publication to allow for Congressional review. Therefore, the rule is effective when published in the Federal Register, as discussed above.

Federal Assistance Programs

The title and number of the Federal Domestic Assistance Program found in the Catalog of Federal Domestic Assistance to which this rule applies are:

10. 116—Margin Protection Program-Dairy

Paperwork Reduction Act of 1995

The regulations in this rule are exempt from the requirements of the Paperwork Reduction Act (44 U.S.C. Chapter 35), as specified in subsection 1601(c)(2)(B) of the 2014 Farm Bill, which provides that these regulations be promulgated and administered without regard to the Paperwork Reduction Act.

E-Government Act Compliance

FSA and CCC are committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

List of Subjects in 7 CFR Part 1430

Dairy products, Fraud, Penalties, Price support programs, Reporting and recordkeeping requirements.

For the reasons discussed above, the regulations at 7 CFR part 1430 are amended as follows:

PART 1430—DAIRY PRODUCTS 1. The authority citation for part 1430 continues to read as follows: Authority:

7 U.S.C. 8773, 9051-9060, and 9071 and 15 U.S.C. 714b and 714c.

2. In § 1430.102, add in alphabetical order a definition for “intergenerational transfer” to read as follows:
§ 1430.102 Definitions.

Intergenerational transfer means the one-time establishment of additional production history for a participating dairy operation when a lineal descendant, who is a son, daughter, grandchild, or spouse of a child or grandchild of a current member joins a participating dairy operation.

§ 1430.104 [Amended]
3. Amend § 1430.104 as follows: a. In paragraph (b)(1), remove the word “approval” and add the word “submission” in its place; b. In paragraph (c)(1), remove the words “, except for 2014, where the election and coverage year will be the same”, c. In paragraph (e) introductory text, remove the word “percentages” and add the word “percentage” in its place, and d. In paragraph (e)(2), add the words “and submits the appropriate CCC forms” to the end after the word “year”. 4. Amend § 1430.105 by revising paragraph (d) and add paragraph (g) to read as follows:
§ 1430.105 Establishment and transfer of production history for a participating dairy operation.

(d) Once the production history of a participating dairy operation is established as specified in paragraphs (a) or (b) of this section, the production history will be adjusted upward by FSA only to reflect any increase in the national average milk production, as determined by the Deputy Administrator, except as provided by paragraph (g) of this section.

(g) The established production history of a participating dairy operation may be adjusted upward once during the term of the contract for an intergenerational transfer based on the purchase of additional cows by the new family member(s). The increase in the established production history of the participating dairy operation will be determined on the basis of the national rolling herd average data for the current year in effect at the time of the intergenerational transfer and the quantity of the production history increase will be limited to an amount not more than 4 million pounds. The additional quantity of production history will receive coverage at the same elected coverage threshold and coverage percentage in effect for the participating dairy operation at the time the production history increase takes effect. Intergenerational transfers will not be allowed if the participating dairy operation's current annual production and the increase in herd size by the new member(s) is less than the operation's established production history.

(1) The dairy operation must notify FSA, using the appropriate CCC form(s), of the intergenerational transfer within 60 days of the purchase of the cows, except that for purchases made for intergenerational transfers occurring between January 1, 2016, and June 30, 2016, the dairy operation must notify FSA during the registration and annual coverage election period for coverage year 2017, established by the Deputy Administrator. The operation has the option of the additional production history taking effect beginning either with the consecutive 2-month period following notification, or the following January 1. If the additional production history takes effect between January 1 and August 31, the premium is due September 1, as specified in § 1430.107(a)(2). If the additional production history takes effect between September 1 and December 31, the premium is due immediately.

(2) All of the items specified in this paragraph must be documented in the notification to FSA and self-certified by the current and new member(s) for the intergenerational transfer to be considered eligible for additional production history, except that intergenerational transfers that occurred in 2014 and 2015 that otherwise meet the requirements of this paragraph will be considered during the registration and annual coverage election period for coverage year 2017 established by the Deputy Administrator for the purposes of adding the new member(s) to the participating dairy operation. However, there will not be any retroactive payments based on a production history increase for the intergenerational transfer. All of the following information is subject to verification by CCC. Refusal to allow CCC or any other agency of USDA to verify any information provided will result in disapproval of the intergenerational transfer.

(i) Documentation that the new member(s) joining the operation have purchased the dairy cows being added to the dairy operation;

(ii) Certification that each new member will have a share of the profits or losses from the dairy operation commensurate with such person's contributions to the dairy operation;

(iii) Certification that each new member has a significant equity ownership in the participating dairy operation at levels determined by the Deputy Administrator and announced on the FSA Web site, www.fsa.usda.gov;

(iv) Certification that each new member is a lineal descendant or spouse thereof of a current member of the participating dairy operation;

(v) Agreement that each new member will contribute labor in the dairy operation at a minimum of 35 hours per week or have a plan for transition to full-time, subject to FSA county committee review and approval, if only working seasonally or part-time;

(vi) Certification that the dairy operation will be the principal source of non-investment earned income for each new member; and

(vii) Documentation of the participating dairy operation's current annual marketings as of the date of the intergenerational transfer.

5. Amend § 1430.106 as follows: a. Revise paragraph (a); b. In paragraph (b) remove the word “unit” from the second sentence; and c. In paragraph (c), add a sentence at the end.

The revision and addition read as follows:

§ 1430.106 Administrative fees.

(a) Dairy operations must pay an initial administrative fee to CCC in the amount of $100 at the time of initial registration to participate in MPP-Dairy. Each approved participating dairy operation must also pay a $100 administrative fee each year through 2018. Annual administrative fees are due and payable to CCC through the administrative county FSA office no later than the close of business on the last day of the annual election period established by the Deputy Administrator for each applicable calendar year of margin protection coverage under MPP-Dairy. The administrative fee paid is non-refundable.

(c) * * * However, coverage for the applicable calendar year, at the catastrophic level only, may be reinstated if the administrative fee is paid late, effective the consecutive 2-month period following payment of the late-filed administrative fee plus applicable charges, if any, and submission to FSA of the appropriate CCC form.

6. Amend § 1430.107 as follows: a. In paragraph (a) introductory text, add “buy-up” after “receiving”; b. In paragraph (a)(1), remove “$4,”; c. Revise paragraphs (d), (g) introductory text, (g)(2), (h), (i), and (j); d. In paragraph (l), remove the words “satisfactory in form to the Deputy Administrator and made payable to FSA” and add the words “satisfactory to FSA and made payable to CCC” in their place; and e. Add paragraph (m).

The revisions and addition read as follows:

§ 1430.107 Buy-up coverage.

(d) The premium per cwt of milk, based on the elected percentage of coverage of production history is specified in the following table.

Table to § 1430.107(d) Coverage level
  • (margin)
  • Tier 1
  • premium per cwt (for the covered
  • production
  • history that is 4 million pounds or less)
  • Tier 2
  • premium per cwt (for the part of
  • covered
  • production
  • history over
  • 4 million pounds)
  • $4.50 $0.010 $0.020 $5.00 0.025 0.040 $5.50 0.040 0.100 $6.00 0.055 0.155 $6.50 0.090 0.290 $7.00 0.217 0.830 $7.50 0.300 1.060 $8.00 0.475 1.360

    (g) A participating dairy operation is required to pay the annual premium calculated as specified in paragraphs (d) and (e) of this section for the applicable calendar year, according to either of the following options:

    (2) In total no later than September 1 of the applicable calendar year of coverage, unless otherwise specified by the Deputy Administrator.

    (h) If the total premium is not paid for an applicable calendar year of coverage as specified in paragraph (g) of this section, the participating dairy operation will only be covered at catastrophic level coverage beginning with the September-October consecutive 2-month period and for the remainder of the applicable coverage year.

    (i) Annual premium balances due CCC from a participating dairy operation for a calendar year of coverage must be paid in full no later than September 1 of the applicable calendar year or within a grace period determined by the Deputy Administrator, if applicable.

    (j) A participating dairy operation with an unpaid premium balance for a calendar year of coverage will lose eligibility for buy-up coverage for the subsequent coverage year if the premium is not paid in full by the close of the coverage election period, and will have its current buy-up level coverage reduced to the catastrophic level, as provided in § 1430.109.

    (m) In the case of an intergenerational transfer, the additional premium, if any, is due September 1 if the notification of the transfer is made to FSA between January 1 and September 1 of the applicable calendar year, and immediately, if the notification is made between September 2 and December 31, unless otherwise specified by the Deputy Administrator.

    7. Revise § 1430.108 to read as follows:
    § 1430.108 Margin protection payments.

    (a) When do MPP-Dairy payments trigger? An MPP-Dairy payment will be made to a participating dairy operation for any consecutive 2-month period when the average actual dairy production margin for the consecutive 2-month period falls below the coverage level threshold in effect for the participating dairy operation. Payments may trigger at either the elected buy-up level if purchased by the dairy operation, or the catastrophic level.

    (b) How will payments be calculated? Whether payments trigger at the catastrophic level or at the buy-up level, the payments will be calculated as explained in this paragraph. If the dairy operation only has catastrophic coverage or buy-up coverage at 90 percent, there will be a single calculation. If the dairy operation purchased buy-up coverage at less than 90 percent and the catastrophic level also triggers a payment, then there will be two calculations to determine the payment—first the calculation for the buy-up coverage percentage and then the calculation for the catastrophic level percentage, which is the balance of the established production history up to 90 percent; the result of these two calculations will be added together to determine the payment amount. Each calculation multiplies the payment rate times the coverage percentage times the production history divided by 6 as follows:

    (1) Payment rate. The amount by which the coverage level exceeds the average actual dairy production margin for the 2-month period;

    (2) Coverage percentage. The coverage percentage; and

    (3) Production history. The production history of the dairy operation, divided by 6.

    (c) Example of payment for buy-up coverage of less than 90 percent when catastrophic level also triggers a payment. If the dairy operation purchased buy-up level coverage at less than 90 percent of production history, then the dairy operation will receive a payment calculated at the buy-up level, plus the payment at the catastrophic level, if triggered, for the balance of 90 percent of its established production history. For example, if a producer purchased buy-up coverage at the 50 percent level, then that producer will also receive catastrophic level coverage for the next 40 percent for total coverage of 90 percent.

    8. Revise § 1430.109(a)(2) to read as follows:
    § 1430.109 Effect of failure to pay administrative fees or premiums.

    (a) * * *

    (2) Upon such failure to pay when due after initial approved registration, loses coverage under MPP-Dairy until such administrative fee or premium is paid in full, and once paid, coverage will begin with the next consecutive 2-month period. Failure to pay the premium fee when due will reduce coverage to the catastrophic level for the September and October period and November and December period in that coverage year.

    9. Revise § 1430.111 to read as follows:
    § 1430.111 Relation to RMA's LGM-Dairy Program.

    (a) A producer may participate in either MPP-Dairy through a dairy operation or the LGM-Dairy program operated by RMA, but not both.

    (b) Producers in dairy operations participating in MPP-Dairy must certify at the time of registration and annually during each coverage election period that they will not have an LGM-Dairy policy in effect during the calendar year the dairy operation is requesting coverage.

    (c) A participating dairy operation may be required to provide proof, to the satisfaction of FSA, of the cancellation or expiration of any previous LGM-Dairy policy.

    10. Amend § 1430.112 by revising paragraph (b) to read as follows:
    § 1430.112 Multi-year contract.

    (b) Failure to pay administrative fees and premiums will result in the loss or reduction of coverage, as applicable, and the participating dairy operation remains obligated to pay such administrative fees and premiums as specified in § 1430.109.

    Val Dolcini, Administrator, Farm Service Agency, and Executive Vice President, Commodity Credit Corporation.
    [FR Doc. 2016-08482 Filed 4-12-16; 8:45 am] BILLING CODE 3410-05-P
    DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service 9 CFR Part 381 [Docket No. FSIS-2015-0026] RIN 0583-AD60 Classes of Poultry AGENCY:

    Food Safety and Inspection Service, USDA.

    ACTION:

    Final rule.

    SUMMARY:

    The Food Safety and Inspection Service (FSIS) is amending the definition and standard of identity for the “roaster” or “roasting chicken” poultry class to better reflect the characteristics of “roaster” chickens in the market today. “Roasters” or “roasting chickens” are described in terms of the age and ready-to-cook (RTC) carcass weight of the bird. Genetic changes and management techniques have continued to reduce the grow-out period and increased the RTC weight for this poultry class. Therefore, FSIS is amending the “roaster” definition to remove the 8-week minimum age criterion and increase the RTC carcass weight from 5 pounds to 5.5 pounds. FSIS is taking this action in response to a petition submitted by the National Chicken Council.

    DATES:

    Effective Date: January 1, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Rosalyn Murphy-Jenkins, Director, Labeling and Program Delivery Staff, Office of Policy and Program Development, FSIS, USDA; Telephone (301)504-0879.

    SUPPLEMENTARY INFORMATION:

    Background

    The Poultry Products Inspection Act (PPIA) prohibits the distribution of poultry products that are adulterated or misbranded (21 U.S.C. 458). The PPIA also authorizes the Secretary of Agriculture to prescribe, among other things, definitions and standards of identity or composition for poultry products whenever the Secretary determines that such action is necessary for the protection of the public (21 U.S.C. 457(b)). Poultry classes were established by USDA to aid in labeling poultry (9 CFR 381.170). The classes were based primarily on the age and sex of the bird. FSIS uses poultry class standards to ensure that poultry products are labeled in a truthful and non-misleading manner.

    On August 19, 2015, FSIS published a proposed rule to amend the definition and standard of identity for the “roaster” or “roasting chicken” poultry class (hereafter referred to as “roasters”) (80 FR 50229). Under the current regulations, a “roaster” is defined as a young chicken (between 8 and 12 weeks of age), of either sex, with a RTC weight of 5 pounds or more, that is tender-meated with soft, pliable, smooth-textured skin and breastbone cartilage that is somewhat less flexible than that of a broiler or fryer (9 CFR 381.170(a)(1)(iii)). FSIS published the final rule that established the current poultry class standards, including the “roaster” class, on November 3, 2011, and the rule went into effect on January 1, 2014.

    On November 18, 2013, before the January 1, 2014, effective date for the 2011 final rule, the National Chicken Council (NCC) petitioned FSIS to amend the definition and standard of identity for the “roaster” chicken class to remove the 8-week minimum age requirement and to increase the RTC carcass weight to 5.5 pounds (http://www.fsis.usda.gov/wps/wcm/connect/adf54579-7a18-4ab2-a9b5-88f1eef65332/Petition-National-Chicken-Council.pdf?MOD=AJPERES). According to the petition, the “roaster” standard established in the 2011 final rule would detract from the orderly and efficient marketing of classes of poultry because companies would be unable to label and market chickens with the RTC weight and other physical attributes of a “roaster” as “roasters” because of the minimum age requirement. The NCC asserted that improvements in breeding and poultry management techniques that have continued since FSIS published the November 2011 final rule have enabled producers to raise chickens with the characteristics of roasters in under 8 weeks.

    FSIS, in consultation with USDA's Agricultural Marketing Service (AMS), conducted a preliminary review of the NCC petition and supporting data and tentatively concluded that the petition had merit. Therefore, in the December 27, 2013, edition of the FSIS Constituent Update, FSIS announced that it would continue to allow chickens younger than 8 weeks of age to be labeled and marketed as “roasters” if these birds met all of the other characteristics of a “roaster” (http://www.fsis.usda.gov/wps/wcm/connect/7f5a78cd-48f5-411b-bcf3-6f0035e72ff8/Constituent-Update-122713.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=7f5a78cd-48f5-411b-bcf3-6f0035e72ff8). They would have to have a RTC carcass weight of 5 pounds or more; be tender-meated; and have soft, pliable, smooth-textured skin that is somewhat less flexible than that of a broiler or fryer. FSIS also stated that it intended to propose to revise the roaster definition or reaffirm the definition established in the November 2011 final rule.

    In July 2014, FSIS, in consultation with AMS, completed its review of the NCC petition and concluded that the available data supported the requested action (see the August 19, 2015 proposed rule “Classes of Poultry” (80 FR 50228)). On July 23, 2014, FSIS sent a letter to the NCC informing the organization that the Agency had decided to grant the petition (http://www.fsis.usda.gov/wps/wcm/connect/d6fba22b-271d-4204-adc6-56ab45d7b587/NCC-FSIS-Response-72314.pdf?MOD=AJPERES). On August 19, 2015, FSIS published a proposed rule to amend the poultry class standards to define a “roaster” or “roasting chicken” as a young chicken (less than 12 weeks of age) of either sex, with a RTC carcass weight of 5.5 pounds or more, that is tender-meated with soft, pliable smooth-textured skin and breastbone cartilage that may be somewhat less flexible than that of a “broiler” or “fryer.” After reviewing the comments on the proposed rule, FSIS is finalizing it without changes.

    Summary of Comments and Responses

    FSIS received four comments on the proposed rule, one from an organization representing the chicken industry and three from private citizens.

    An organization representing the chicken industry strongly supported the proposed amendment because of the positive impacts on the poultry industry. According to the comment, such impacts include: (1) Aiding in the orderly and efficient marketing of classes of poultry in the United States, (2) eliminating the burden of periodically amending the regulation to reflect industry advancements in breeding by removing the minimum age requirement, and (3) reducing the cost for producers to efficiently raise birds. The organization also commented that efficient raising of birds would keep the cost of the final product lower for consumers because companies would not need to continue to pay for birds' feed until the birds reach eight weeks.

    The following is a summary of other relevant issues raised in the comments opposed to the rule and FSIS's responses.

    Comment: An individual opposed amending the “roaster” definition because the commenter believed that the change poses a health risk to the public. According to the comment, increasing the RTC weight from 5 pounds to 5.5 pounds will change the time that a “roasting chicken” will have to cook.

    Response: FSIS disagrees that amending the “roaster” definition poses a health risk to the public. FSIS recommends cooking whole chicken to a safe minimum internal temperature of 165 °F (73.9 °C) as measured with a food thermometer regardless of the weight of the bird. FSIS and standard cooking guidance recommend that those preparing whole chickens check the internal temperature in the innermost part of the thigh and wing and the thickest part of the breast. For planning purposes, some consumers approximate cooking times based on the weight of the carcass. FSIS requires all poultry labels to display an accurate net weight.

    Comment: Two comments from individuals stated that FSIS should maintain the 8-12 week age criteria for “roasting chickens.” According to the comments, “roasters” have a superior texture and flavor spectrum because of their age and not their size. One commenter asserted that the flavor of the meat improves with more bone versus cartilage in the finished meal. Another commenter said that the older the birds, the more firm and less fatty the meat. That commenter stated that consumers pay a premium for an older bird not a larger bird.

    Response: The new standard for “roasting chicken” eliminates the minimum age requirement of 8 weeks. Chickens up to 12 weeks may be labeled as “roasters.” Additionally, the “roaster” standard includes physical attributes, including those the commenters identified: the birds must be tender-meated with soft, pliable, smooth-textured skin and have breastbone cartilage that may be somewhat less flexible than that of a “broiler” or “fryer.” Chickens that do not meet these physical attributes do not meet the standard for “roaster.”

    Comment: One individual stated that to assure consumers that they are purchasing an appropriately aged bird, product labels should indicate the age of the bird at the time of slaughter. According to the commenter, through this labeling information, consumers can decide whether they are purchasing a roaster or a broiler. Another individual said that companies should not be required to label birds as “broilers” or “roasters” if the only difference between the two is size. According to the comment, the labeling should simply provide the RTC carcass weight.

    Response: Requiring that poultry carcasses be labeled with the age at time of slaughter would place an undue burden on industry without providing information to consumers that will inform their purchasing decisions. Both “roasters” and “broilers” may, alternatively, be labeled as “whole young chickens” if the manufacturer prefers not to label them as “roasters” or “broilers” (9 CFR 381.117). Also, FSIS agrees with the petitioners that as long as chickens 12 weeks or younger have the appropriate characteristics, they may be labeled as “roasters.”

    Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been designated a “non-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 under Executive Order (E.O.) 12866.

    Economic Impact Analysis

    FSIS affirms the preliminary regulatory impact analysis 1 and is finalizing the proposed rule and regulatory impact analysis without change. This final rule will not have significant costs because FSIS allows chickens younger than 8 weeks with the physical attributes of “roasters” to be labeled as “roasters.” 2 The final rule will codify present practices and will not impose new requirements.

    1http://www.fsis.usda.gov/wps/wcm/connect/3fc66d17-1b67-4e09-a4a2-5eabbc55940a/2015-0026.htm?MOD=AJPERES.

    2 See Constituent Update: http://www.fsis.usda.gov/wps/portal/fsis/newsroom/meetings/newsletters/constituent-updates/archive/2013/ConstUpdate122713.

    Amending the poultry class definition of “roaster” will benefit consumers by ensuring that chickens labeled as “roasters” continue to meet consumer expectations, and that the labels are truthful and not misleading. Consequently, consumers will be able to make informed purchase decisions.

    Regulatory Flexibility Act Assessment

    The FSIS Administrator has determined that this final rule will not have a significant economic impact on a substantial number of small entities as defined by the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This final rule will not result in additional costs to the industry because FSIS allows chickens younger than 8 weeks with the physical attributes of “roasters” to be labeled as “roasters.”

    Paperwork Reduction Act

    FSIS has reviewed this rule under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and has determined that the information collection related to labeling has been approved by OMB under OMB control number 0583-0092.

    FSIS does not anticipate many label changes as a result of the change to the “roaster” definition because establishments that produce chickens that comply with the “roaster” poultry class standard are already labeling these birds as “roasters.”

    Executive Order 12988, Civil Justice Reform

    This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under this rule: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) no administrative proceedings will be required before parties may file suit in court challenging this rule.

    Executive Order 13175

    This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” E.O. 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

    FSIS has assessed the impact of this rule on Indian tribes and determined that this rule does not, to our knowledge, have tribal implications that require tribal consultation under E.O. 13175. If a Tribe requests consultation, FSIS will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress.

    USDA Non-Discrimination Statement

    No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.

    How To File a Complaint of Discrimination

    To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at http://www.ocio.usda.gov/sites/default/files/docs/2012/Complain_combined_6_8_12.pdf, or write a letter signed by you or your authorized representative.

    Send your completed complaint form or letter to USDA by mail, fax, or email:

    Mail: U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW., Washington, DC 20250-9410.

    Fax: (202) 690-7442.

    Email: [email protected]

    Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

    Additional Public Notification

    Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this Federal Register publication on-line through the FSIS Web page located at: http://www.fsis.usda.gov/federal-register.

    FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to our constituents and stakeholders. The Update is available on the FSIS Web page. Through the Web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an email subscription service which provides automatic and customized access to selected food safety news and information. This service is available at: http://www.fsis.usda.gov/subscribe. Options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.

    List of Subjects in 9 CFR Part 381

    Food grades and standards, Poultry and poultry products.

    For the reasons stated in the preamble, FSIS amends 9 CFR part 381, as follows:

    PART 381—POULTRY PRODUCTS INSPECTION REGULATIONS 1. The authority citation for part 381 continues to read as follows: Authority:

    7 U.S.C. 138f, 450; 21 U.S.C. 451-470; 7 CFR 2.7, 2.18, 2.53.

    2. Amend § 381.170 by revising paragraph (a)(1)(iii) to read as follows:
    § 381.170 Standards for kinds and classes, and for cuts of raw poultry.

    (a) * * *

    (1) * * *

    (iii) Roaster or roasting chicken. A “roaster” or “roasting chicken” is a young chicken (less than 12 weeks of age), of either sex, with a ready-to-cook carcass weight of 5.5 pounds or more, that is tender-meated with soft, pliable, smooth-textured skin and breastbone cartilage that is somewhat less flexible than that of a broiler or fryer.

    Done at Washington, DC, on: April 8, 2016. Alfred V. Almanza, Acting Administrator.
    [FR Doc. 2016-08488 Filed 4-12-16; 8:45 am] BILLING CODE 3410-DM-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-4811; Directorate Identifier 2015-NM-104-AD; Amendment 39-18481; AD 2016-08-05] RIN 2120-AA64 Airworthiness Directives; Bombardier, Inc. Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, Model CL-600-2D15 (Regional Jet Series 705) airplanes, Model CL-600-2D24 (Regional Jet Series 900) airplanes, and Model CL-600-2E25 (Regional Jet Series 1000) airplanes. This AD was prompted by the discovery of a number of incorrectly calibrated angle of attack (AOA) transducers installed in the stall protection system. This AD requires replacement of affected AOA transducers. We are issuing this AD to detect and replace incorrectly calibrated AOA transducers; incorrect calibration of the transducers could result in late activation of the stick pusher.

    DATES:

    This AD is effective May 18, 2016.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of May 18, 2016.

    ADDRESSES:

    For service information identified in this final rule, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514-855-7401; email [email protected]; Internet http://www.bombardier.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-4811.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-4811; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE-171, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7318; fax 516-794-5531.

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, Model CL-600-2D15 (Regional Jet Series 705) airplanes, Model CL-600-2D24 (Regional Jet Series 900) airplanes, and Model CL-600-2E25 (Regional Jet Series 1000) airplanes. The NPRM published in the Federal Register on November 12, 2015 (80 FR 69896) (“the NPRM”).

    Transport Canada Civil Aviation (TCCA), which is the aviation authority Canada, has issued Canadian Airworthiness Directive CF-2015-18, dated July 16, 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, & 702) airplanes, Model CL-600-2D15 (Regional Jet Series 705) airplanes, Model CL-600-2D24 (Regional Jet Series 900) airplanes, and Model CL-600-2E25 (Regional Jet Series 1000) airplanes. The MCAI states:

    It was discovered that a number of AOA transducers installed on Bombardier CL-600-2C10, CL-600-2D15, CL-600-2D24, and CL-600-2E25 aeroplanes were incorrectly calibrated due to a quality control problem at both the production and repair facilities. Incorrect calibration of the AOA transducer could result in a late activation of the stick pusher.

    This [Canadian] AD mandates the replacement of the incorrectly calibrated AOA transducer.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-4811.

    Comments

    We gave the public the opportunity to participate in developing this AD. We considered the one comment received. The commenter supported the NPRM.

    Conclusion

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

    • Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM.

    Related Service Information Under 1 CFR Part 51

    We reviewed Bombardier Service Bulletin 670BA-27-069, dated March 30, 2015. This service information describes procedures for replacement of transducers with correctly calibrated AOA transducers. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 400 airplanes of U.S. registry.

    We also estimate that it would take about 4 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts would cost about $10,000 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $4,136,000, or $10,340 per product.

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

    We determined that this 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.

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-08-05 Bombardier, Inc.: Amendment 39-18481. Docket No. FAA-2015-4811; Directorate Identifier 2015-NM-104-AD. (a) Effective Date

    This AD is effective May 18, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to the Bombardier, Inc. airplanes, certificated in any category, identified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD.

    (1) Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, serial numbers 10002 through 10999 inclusive.

    (2) Model CL-600-2D15 (Regional Jet Series 705) airplanes and Model CL-600-2D24 (Regional Jet Series 900) airplanes, serial numbers 15001 through 15990 inclusive.

    (3) Model CL-600-2E25 (Regional Jet Series 1000) airplanes, serial numbers 19001 through 19990 inclusive.

    (d) Subject

    Air Transport Association (ATA) of America Code 27, Flight Controls.

    (e) Reason

    This AD was prompted by the discovery of a number of incorrectly calibrated angle of attack (AOA) transducers installed in the stall protection system. We are issuing this AD to detect and replace incorrectly calibrated AOA transducers; incorrect calibration of the transducers could result in late activation of the stick pusher.

    (f) Compliance

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

    (g) Replacement

    Within 2,500 flight hours or 12 months, whichever occurs first after the effective date of this AD, replace the AOA transducers identified in paragraph 1.A., “Effectivity,” of Bombardier Service Bulletin 670BA-27-069, dated March 30, 2015, with correctly calibrated AOA transducers, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-27-069, dated March 30, 2015.

    (h) Parts Installation Prohibition

    As of the effective date of this AD, no person may install, on any airplane, an AOA transducer having a part number or serial number identified in paragraph 1.A., “Effectivity,” of Bombardier Service Bulletin 670BA-27-069, dated March 30, 2015.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, New York Aircraft Certification Office (ACO), ANE-170, 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 ACO, send it to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; fax 516-794-5531. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, New York ACO, ANE-170, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier, Inc.'s TCCA Design Approval Organization (DAO). If approved by the DAO, the approval must include the DAO-authorized signature.

    (j) Related Information

    Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2015-18, dated July 16, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-4811.

    (k) Material Incorporated by Reference

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

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

    (i) Bombardier Service Bulletin 670BA-27-069, dated March 30, 2015.

    (ii) Reserved.

    (3) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514-855-7401; email [email protected]; Internet http://www.bombardier.com.

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

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

    Issued in Renton, Washington, on March 31, 2016. Victor Wicklund, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-08346 Filed 4-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-0068; Directorate Identifier 2015-CE-037-AD; Amendment 39-18484; AD 2016-08-08] RIN 2120-AA64 Airworthiness Directives; SOCATA Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are superseding airworthiness directive (AD) 92-06-10 for SOCATA Models MS 880B, MS 885, MS 892A-150, MS 892E-150, MS 893A, MS 893E, MS 894A, MS 894E, Rallye 100S, Rallye 150ST, Rallye 150T, Rallye 235E, and Rallye 235C airplanes. This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as fatigue failure of the nose landing gear wheel axle. We are issuing this AD to require actions to address the unsafe condition on these products.

    DATES:

    This AD is effective May 18, 2016.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of May 18, 2016.

    ADDRESSES:

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-0068; or in person at the Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    For service information identified in this AD, contact SOCATA, Direction des services, 65921 Tarbes Cedex 9, France; phone: +33 (0) 5 62 41 73 00; fax: +33 (0) 5 62 41 76 54; email: [email protected]; Internet: http://www.tbm.aero/. For the United States, contact SOCATA NORTH AMERICA, North Perry Airport, 601 NE 10 Street, Pompano Beach, Florida 33060; phone: (954) 366-3331; Internet: http://www.socatanorthamerica.com/default.htm. You may view this referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148. It is also available on the Internet at http://www.regulations.gov by searching for Docket No. FAA-2016-0068.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to SOCATA Models MS 880B, MS 885, MS 894A, MS 893A, MS 892A-150, MS 892E-150, MS 893E, MS 894E, Rallye 100S, Rallye 150T, Rallye 150ST, Rallye 235E, and Rallye 235C airplanes. That NPRM was published in the Federal Register on January 15, 2016 (81 FR 2134), and proposed to supersede AD 92-06-10, Amendment 39-8190 (57 FR 8063; March 6, 1992) (“92-06-10”).

    The NPRM proposed to correct an unsafe condition for the specified products and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country. The MCAI states that:

    A nose landing gear (NLG) wheel axle rupture occurred in service. The results of the technical investigation revealed that this failure was due to premature wear.

    This condition, if not detected and corrected, could lead to cracks in the axle and detachment of axle and wheel, possibly resulting in failure of the NLG with consequent damage to the aeroplane and injury to occupants.

    To address this potential unsafe condition, DGAC France issued AD 91-163(A) (later revised twice) to require repetitive detailed inspections (DET) of the NLG wheel axle and replacement of the NLG wheel axle attachment screws in accordance with the instructions of SOCATA Service Bulletin (SB) 150-32.

    Since DGAC France AD 91-163(A)R2 was issued, new findings led to an adjustment of the inspection interval. Consequently, SOCATA issued SB 150-32, now at Revision 3.

    The MCAI can be found in the AD docket on the Internet at: http://www.regulations.gov/#!documentDetail;D=FAA-2016-0068-0002.

    Comments

    We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (81 FR 2134, January 15, 2016) or on the determination of the cost to the public.

    Conclusion

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

    • Are consistent with the intent that was proposed in the NPRM (81 FR 2134, January 15, 2016) for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM (81 FR 2134, January 15, 2016).

    Related Service Information Under 1 CFR Part 51

    We reviewed Daher-Socata Mandatory Service Bulletin SB 150-32, Revision 3, dated September 2015. The service bulletin describes procedures for inspection of the nose gear wheel axle. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of the AD.

    Costs of Compliance

    We estimate that this AD will affect 77 products of U.S. registry. We also estimate that it would take about 10 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts would cost about $500 per product.

    Based on these figures, we estimate the cost of the AD on U.S. operators to be $103,950, or $1,350 per product.

    In addition, we estimate that any necessary follow-on actions would take about 3 work-hours and require parts costing $1,450, for a cost of $1,705 per product. We have no way of determining the number of products that may need these actions.

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

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

    For the reasons discussed above, I certify this AD:

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

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

    (3) Will not affect intrastate aviation in Alaska, and

    (4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-0068; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Amendment 39-8190 (57 FR 8063; March 6, 1992) and adding the following new AD: 2016-08-08 SOCATA: Amendment 39-18484; Docket No. FAA-2016-0068; Directorate Identifier 2015-CE-037-AD. (a) Effective Date

    This airworthiness directive (AD) becomes effective May 18, 2016.

    (b) Affected ADs

    This AD supersedes AD 92-06-10 Amendment 39-8190 (57 FR 8063; March 6, 1992) (“AD 92-06-10”).

    (c) Applicability

    This AD applies to SOCATA Models MS 880B, MS 885, MS 892A-150, MS 892E-150, MS 893A, MS 893E, MS 894A, MS 894E, Rallye 100S, Rallye 150ST, Rallye 150T, Rallye 235E, and Rallye 235C airplanes, all serial numbers, certificated in any category.

    (d) Subject

    Air Transport Association of America (ATA) Code 32: Landing Gear.

    (e) Reason

    This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as fatigue failure of the nose landing gear wheel axle. We are issuing this AD to detect and correct chafing and cracking of the nose gear wheel axle, which could lead to failure of the nose landing gear with consequent damage to the airplane and/or occupants.

    (f) Actions and Compliance

    Do the actions in paragraphs (f)(1) through (f)(5) of this AD, including all subparagraphs. If the initial actions of paragraphs (f)(1), (f)(2), (f)(3), and (f)(4) of this AD have already been done before the effective date of this AD, then do the repetitive actions of these paragraphs at the specified times.

    (1) Do a detailed visual inspection of the intersection between the axle radius and the nose landing gear fork area for chafing at whichever occurs later in paragraph (f)(1)(i) or (f)(1)(ii) of this AD and repetitively thereafter at intervals not to exceed 200 hours time-in-service (TIS) following Daher-Socata Mandatory Service Bulletin SB 150-32, Revision 3, dated September 2015:

    (i) Upon accumulating 200 hours TIS since the airplane's first flight or 200 hours TIS since the last inspection required by AD 92-06-10; or

    (ii) Within the next 50 hours TIS after May 18, 2016 (the effective date of this AD) or within 500 hours TIS since the last inspection required by AD 92-06-10, whichever occurs first.

    (2) Do a dye penetrant inspection on the nose wheel axle for cracks, distortion, and nicks or wear at whichever occurs later in paragraph (f)(2)(i) or (f)(2)(ii) of this AD and repetitively thereafter at intervals not to exceed 200 hours time-in-service (TIS) following Daher-Socata Mandatory Service Bulletin SB 150-32, Revision 3, dated September 2015:

    (i) Upon accumulating 200 hours TIS since the airplane's first flight or 200 hours TIS since the last inspection required by AD 92-06-10; or

    (ii) Within the next 50 hours TIS after May 18, 2016 (the effective date of this AD) or within 500 hours TIS since the last inspection required by AD 92-06-10, whichever occurs first.

    (3) If any cracks or damage is found in any inspection required by paragraphs (f)(1) or (f)(2) in this AD, contact SOCATA for FAA-approved repair or replacement instructions approved specifically for this AD and, before further flight, implement those instructions. Use the contact information found in paragraph (j) of this AD to contact SOCATA.

    (4) Replace the nose landing gear wheel axle attachment screws with new screws at whichever occurs later in paragraph (f)(4)(i) or (f)(4)(ii) of this AD following Daher-Socata Mandatory Service Bulletin SB 150-32, Revision 3, dated September 2015:

    (i) Upon accumulating 2,000 hours TIS since airplane's first flight or 2,000 hours TIS since last nose landing gear wheel attachment screw replacement with new screws; or

    (ii) Within 50 hours TIS since April 17, 1992 (the effective date retained from AD 92-06-10).

    (5) After May 18, 2016 (the effective date of this AD), a used nose landing gear or a used nose landing gear wheel axle may be installed provided it has been inspected and found free of cracks and/or damage and the nose landing gear wheel axle attachment screws have been replaced with new screws as specified in paragraphs (f)(1), (f)(2), and (f)(4) of this AD.

    (g) Credit for Actions Accomplished in Accordance With Previous Service Information

    This AD allows credit for the inspections required in paragraph (f)(1) and (f)(2) of this AD, if done before May 18, 2016 (the effective date of this AD), following Daher-Socata Mandatory Service Bulletin SB 150-32, Revision 2, dated January 1994.

    (h) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, Standards Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Albert Mercado, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4119; fax: (816) 329-4090; email: [email protected] Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.

    (2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.

    (i) Related Information

    Refer to MCAI European Aviation Safety Agency (EASA) AD 2015-0203, dated October 7, 2015; and Daher-Socata Mandatory Service Bulletin SB 150-32, Revision 2, dated January 1994, for related information. The MCAI can be found in the AD docket on the Internet at: http://www.regulations.gov/#!documentDetail;D=FAA-2016-0068-0002.

    (j) Material Incorporated by Reference

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

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

    (i) Daher-Socata Mandatory Service Bulletin SB 150-32, Revision 3, dated September 2015.

    (ii) Reserved.

    (3) For SOCATA service information identified in this AD, contact SOCATA, Direction des services, 65921 Tarbes Cedex 9, France; phone: +33 (0) 5 62 41 73 00; fax: +33 (0) 5 62 41 76 54; email: [email protected]; Internet: http://www.tbm.aero/. For the United States, contact SOCATA NORTH AMERICA, North Perry Airport, 601 NE 10 Street, Pompano Beach, Florida 33060; phone: (954) 366-3331; Internet: http://www.socatanorthamerica.com/default.htm.

    (4) You may view this service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148. In addition, you can access this service information on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-0068.

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

    Issued in Kansas City, Missouri, on April 4, 2016. Pat Mullen, Acting Manager, Small Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-08262 Filed 4-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-5914; Directorate Identifier 2014-SW-056-AD; Amendment 39-18472; AD 2016-07-27] RIN 2120-AA64 Airworthiness Directives; Airbus Helicopters (formerly Eurocopter France) AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for Airbus Helicopters Model SA341G and SA342J helicopters. This AD requires repetitive inspections of a certain part-numbered main rotor hub torsion bar (torsion bar). This AD was prompted by several cases of corrosion in the metal strands of the torsion bar. The actions of this AD are intended to detect corrosion and prevent failure of the torsion bar, loss of a main rotor blade, and subsequent loss of control of the helicopter.

    DATES:

    This AD is effective May 18, 2016.

    The Director of the Federal Register approved the incorporation by reference of a certain document listed in this AD as of May 18, 2016.

    ADDRESSES:

    For service information identified in this final rule, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at http://www.airbushelicopters.com/techpub. You may review the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177. It is also on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5914.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5914; or in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the European Aviation Safety Agency (EASA) AD, any incorporated-by-reference service information, the economic evaluation, any comments received, and other information. The street address for the Docket Operations Office (phone: 800-647-5527) is U.S. Department of Transportation, Docket Operations Office, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Robert Grant, Aviation Safety Engineer, Safety Management Group, FAA, 10101 Hillwood Pkwy, Fort Worth, Texas 76177; telephone (817) 222-5110; email [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    On November 19, 2015, at 80 FR 72390, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 by adding an AD that would apply to Model SA341G and SA342J helicopters with a torsion bar part number 704A33633274 installed. The NPRM proposed to require removing and performing repetitive inspections of each torsion bar for a crack in the polyurethane (PU) coating, the dimension of the angle between the bushings, corrosion on the inside diameter of each bushing, the thickness of each bushing, the size of the inside diameter of each bushing, and missing varnish on the two faces of each bushing. The NPRM also proposed to require replacing the torsion bar before further flight if there is a crack in the PU coating of a torsion bar that matches or exceeds the damage criteria, if the angle of the torsion bar is 7 degrees or more, if any corrosion on a bushing cannot be removed by rubbing it with an abrasive pad, if the thickness of a bushing is less than 37.520 mm (1.477 in), or if the diameter of a bushing is larger than 21,040 mm (.828 in). If varnish is missing from more than 15 percent of the surface area from a face of a bushing, the NPRM proposed to require removing all varnish, finishing with an abrasive pad, and applying a coat of paint to the face of the bushing. The proposed requirements were intended to detect corrosion and prevent failure of the torsion bar, loss of a main rotor blade, and subsequent loss of control of the helicopter.

    The NPRM was prompted by AD No. 2014-0216, dated September 24, 2014, issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Airbus Helicopters Model SA341G and SA342J helicopters. EASA advises that several cases of cracks were found on the PU coating of part-numbered 704A33633274 torsion bars installed on military Model SA341 helicopters. EASA states that these parts can also be installed on civilian Model SA341 and SA342 helicopters. According to EASA, analysis of the cracked torsion bars showed small areas of superficial corrosion on the strands inside the bars can also develop during the manufacturing process. EASA states that cracking of the PU coating near these areas and the associated penetration of water can lead to further and deeper development of the corrosion. EASA advises that this condition, if not detected and corrected, allows water to penetrate into the torsion bar causing corrosion and failure of the metal strands inside the bar. Failure of the metal strands could lead to torsion bar failure, resulting in an in-flight loss of a main rotor blade and consequent loss of control of the helicopter.

    Comments

    We gave the public the opportunity to participate in developing this AD, but we did not receive any comments on the NPRM (80 FR 72390, November 19, 2015).

    FAA's Determination

    These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. 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 helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.

    Interim Action

    We consider this AD to be an interim action. If final action is later identified, we might consider further rulemaking.

    Differences Between This AD and the EASA AD

    This AD requires you to replace a torsion bar instead of returning it to the manufacturer for examination.

    Related Service Information Under 1 CFR Part 51

    Eurocopter (now Airbus Helicopters) has issued Gazelle Inspection—Check 65.12.607, “Main Rotor Head: Torsion Tie-Back Check (Post MOD 076171),” dated August 2008, of the Eurocopter Gazelle Helicopter Maintenance Manual, Tome 1, which describes inspecting the torsion bars for a crack in the PU coating and for corrosion and thickness of the bushings.

    This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Other Related Service Information

    Airbus Helicopters has also issued Alert Service Bulletin No. SA341/SA342-05.40, Revision 0, dated April 28, 2014 (ASB), for Model SA341G and SA342J helicopters certificated by the FAA, and military Model SA341B, C, D, E, F, and H and SA342K, L, L1, M, M1, and Ma helicopters. The ASB specifies repetitively inspecting the torsion bars in accordance with certain work cards, including work card 65.12.607. These inspections are part of Airbus Helicopters' current maintenance program, and the ASB revises the compliance time interval for the inspections.

    Costs of Compliance

    We estimate that this AD affects 33 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD. We estimate $85 per work-hour for labor. We estimate 8 work-hours to inspect each helicopter at an estimated cost of $680 per helicopter and $22,440 for the U.S. fleet per inspection cycle. Replacing a torsion bar will cost $7,020 for required parts; no additional labor is necessary.

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on helicopters identified in this rulemaking action.

    Regulatory Findings

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

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

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

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

    (3) Will not affect intrastate aviation in Alaska 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.

    We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-07-27 Airbus Helicopters (formerly Eurocopter France): Amendment 39-18472; Docket No. FAA-2015-5914; Directorate Identifier 2014-SW-056-AD. (a) Applicability

    This AD applies to Model SA341G and SA342J helicopters with a main rotor head torsion bar (torsion bar) part number 704A33633274 installed, certificated in any category.

    (b) Unsafe Condition

    This AD defines the unsafe condition as a crack in the coating of the torsion bar resulting in corrosion. This condition could result in failure of a torsion bar, loss of a main rotor blade, and subsequent loss of control of the helicopter.

    (c) Effective Date

    This AD becomes effective May 18, 2016.

    (d) Compliance

    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.

    (e) Required Actions

    (1) For each torsion bar with less than 5 years since the first date of installation on any helicopter, within the compliance time shown in Table 1 to paragraph (e)(1) of this AD:

    (i) Remove the torsion bar and, using a magnifying glass with a maximum magnification level of 10X, visually inspect for a crack in the polyurethane (PU) coating of the torsion bar as depicted in Figure 1 of Gazelle Inspection—Check 65.12.607, “Main Rotor Head: Torsion Tie-Back Check (Post MOD 076171),” dated August 2008, of the Eurocopter Gazelle Helicopter Maintenance Manual, Tome 1. This type of task is commonly called a “work card” and will be referenced in this AD as “the work card.” Consider two cracks that are less than 5 mm (.196 in) apart as a single crack. If there is a crack in the PU coating that is more than 5 mm (.196 in), replace the torsion bar before further flight. Do not rework the PU coating of the torsion bar in any way.

    (ii) Inspect the angle, dimension alpha, as depicted in View on Arrow F of Figure 1 of the work card. If the angle is 7 or more degrees, replace the torsion bar before further flight.

    (iii) Inspect each bushing for corrosion on the inside diameter. If any corrosion cannot be removed by rubbing it with an abrasive pad, replace the torsion bar before further flight.

    (iv) Using an outside micrometer, measure the thickness, dimension a, of each bushing as depicted in Detail AA of Figure 1 of the work card. If the thickness is less than 37.520 mm (1.477 in), replace the torsion bar before further flight.

    (v) Using an inside micrometer, measure the inside diameter, dimension b, of each bushing as depicted in Detail AA of Figure 1 of the work card. If the diameter is larger than 21.040 mm (.828 in), replace the torsion bar before further flight.

    (vi) Inspect the two faces of each bushing for missing varnish. If varnish is missing from more than 15% of the surface area on a face of a bushing, before further flight, remove all varnish using 400-grit abrasive paper. Finish with an abrasive pad and apply a coat of P05 paint to the face of the bushing.

    Table 1 to Paragraph (e)(1) Time accumulated on torsion bar Compliance time (i) Less than 320 hours time-in-service (TIS) since new and has never been inspected in accordance with Airbus Helicopters 341G—342J Airworthiness Limitations, Revision 18, dated June 2014 (limitations inspection) Before accumulating 420 hours TIS since new or within 24 months since the date of first installation on any helicopter, whichever occurs first. (ii) 320 or more hours TIS since new and has never had a limitations inspection Within 100 hours TIS, or before accumulating 600 hours TIS since new, or within 24 months since the date of first installation on any helicopter, whichever occurs first. (iii) Less than 320 hours TIS since the last limitations inspection Before accumulating 420 hours TIS since the last limitations inspection or within 24 months since the last limitations inspection, whichever occurs first. (iv) 320 or more hours TIS since the last limitations inspection Within 100 hours TIS, or before accumulating 600 hours TIS since the last limitations inspection, or within 24 months since the last limitations inspection, whichever occurs first.

    (2) For each torsion bar with 5 or more years since the first date of installation on any helicopter, within the compliance time shown in Table 2 to paragraph (e)(2) of this AD, do the inspections required by paragraphs (e)(1)(i) through (vi) of this AD.

    Table 2 to Paragraph (e)(2) Time accumulated on torsion bar Compliance time (i) Less than 320 hours TIS since new, and less than 6 months since the date of first installation on any helicopter, and has never had a limitations inspection Before accumulating 420 hours TIS since new or within 12 months since the date of first installation on any helicopter, whichever occurs first. (ii) 320 or more hours TIS since new or more than 6 months since the date of first installation on any helicopter, and has never had a limitations inspection Within 100 hours TIS, or within 6 months, or before accumulating 600 hours TIS since new, or within 24 months since the date of first installation on any helicopter, whichever occurs first. (iii) Less than 320 hours TIS since last limitations inspection and less than 6 months since the last limitations inspection Before accumulating 420 hours TIS since last limitations inspection or 12 months since last limitations inspection, whichever occurs first. (iv) 320 or more hours TIS since last limitations inspection or 6 or more months since the last limitations inspection Within 100 hours TIS, or within 6 months, or before accumulating 600 hours TIS since the last limitations inspection, or within 24 months since the last limitations inspection, whichever occurs first.

    (3) Repeat the inspections required by paragraphs (e)(1)(i) through (vi) of this AD as follows:

    (i) For torsion bars with less than 6 years since the date of installation on any helicopter, at intervals not to exceed 420 hours TIS or 24 months, whichever occurs first.

    (ii) For torsion bars with 6 or more years since the date of installation on any helicopter, at intervals not to exceed 420 hours TIS or 12 months, whichever comes first.

    (f) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: Robert Grant, Aviation Safety Engineer, Safety Management Group, FAA, 10101 Hillwood Pkwy, Fort Worth, TX 76177; telephone (817) 222-5110; email [email protected]

    (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.

    (g) Additional Information

    (1) Airbus Helicopters Alert Service Bulletin ASB No. SA341/SA342-05.40, Revision 0, dated April 28, 2014, which is not incorporated by reference, contains additional information about the subject of this final rule. For Airbus Helicopters service information identified in this final rule, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at http://www.airbushelicopters.com/techpub. You may review a copy of the service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177.

    (2) The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2014-0216, dated September 24, 2014. You may view the EASA AD on the Internet at http://www.regulations.gov in Docket No. FAA-2015-5914.

    (h) Subject

    Joint Aircraft Service Component (JASC) Code: 6700, Main Rotor.

    (i) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference 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) Gazelle Inspection—Check 65.12.607, “Main Rotor Head: Torsion Tie-Back Check (Post MOD 076171),” dated August 2008, of the Eurocopter Gazelle Helicopter Maintenance Manual, Tome 1.

    (ii) Reserved.

    (3) For Eurocopter service information identified in this final rule, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at http://www.airbushelicopters.com/techpub.

    (4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110.

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

    Issued in Fort Worth, Texas, on March 31, 2016. James A. Grigg, Acting Manager, Rotorcraft Directorate, Aircraft Certification Service.
    [FR Doc. 2016-07979 Filed 4-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-3147; Directorate Identifier 2014-NM-094-AD; Amendment 39-18479; AD 2016-08-03] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 777-200, -200LR, -300, and -300ER series airplanes. This AD was prompted by reports of fractured forward attach fittings of the inboard flap outboard aft flap track. The fractured fittings were determined to be the result of corrosion pits forming on the inside diameter of the fittings. This AD requires an inspection for the affected part number and serial number of the main flap; various additional repetitive inspections of the fitting, if necessary; and replacement of the fitting or nested bushing installation, if necessary, which would terminate the inspections. This AD also provides an optional terminating action for the repetitive inspections. We are issuing this AD to detect and correct fracture of the fitting, which could result in the loss of the inboard aft flap and could lead to a punctured fuselage, causing injury to the flightcrew and passengers, and damage to the airplane.

    DATES:

    This AD is effective May 18, 2016.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of May 18, 2016.

    ADDRESSES:

    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 https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3147.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3147; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Eric Lin, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-917-6412; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 777-200, -200LR, -300, and -300ER series airplanes. The NPRM published in the Federal Register on August 25, 2015 (80 FR 51491) (“the NPRM”). The NPRM was prompted by reports of fractured forward attach fittings of the inboard flap outboard aft flap track. The fractured fittings were determined to be the result of corrosion pits forming on the inside diameter of the fittings. The NPRM proposed to require an inspection for the affected part number and serial number of the main flap; various additional repetitive inspections of the fitting, if necessary; and replacement of the fitting or nested bushing installation, if necessary, which would terminate the inspections. The proposed AD also provided an optional terminating action for the repetitive inspections. We are issuing this AD to detect and correct fracture of the fitting, which could result in the loss of the inboard aft flap and could lead to a punctured fuselage, causing injury to the flightcrew and passengers, and damage to the airplane.

    Comments

    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. Benjamin Kerensa commented that he supports the NPRM.

    Request To Change Terminology

    Boeing requested that we change the phrase “inboard flap of the main flap” to “main flap of the inboard flap assembly” in paragraphs (g) and (h) of the proposed AD. Boeing stated that this would clarify the inspection location.

    We agree with the commenter's request for the reason provided by the commenter. We have revised paragraphs (g) and (h) of this AD accordingly.

    Request To Clarify Requirements of a Certain Terminating Action

    Boeing requested that we revise the terminating action specified in paragraph (k)(1) of the proposed AD. Boeing recommended that at the end of paragraph (k)(1) of the proposed AD, we add the following language, “Prior to accomplishing this option, the inspections of paragraph (h) must be accomplished and no cracking must have been found during that inspection.” Boeing commented that the bushing replacement is only a terminating action if the fitting has been verified to be crack free.

    We agree to clarify the terminating action. As specified in Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014, if cracking is found during an inspection that is part of the terminating action, a fitting replacement must be done instead of the terminating action. In addition, Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014, specifies that if corrosion cannot be removed during the terminating action, a fitting replacement must be done instead of the terminating action.

    Therefore, we have revised paragraph (k)(1) of this AD to specify that the terminating action is acceptable provided no cracking is found during any inspection specified in Part 4 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014, and all corrosion has been removed.

    We have also clarified the terminating actions specified in paragraphs (h), (i), (j), (k)(1), (k)(2), and (k)(3) of this AD to specify the terminating actions apply only to that fitting on which the terminating action is done.

    In addition, we have clarified the actions specified in paragraphs (i)(3)(i), (i)(3)(ii), and (i)(3)(iii) of this AD by specifying the actions include doing all applicable related investigative actions. Also, we have clarified the actions specified in paragraphs (j)(1) and (j)(2) of this AD by specifying the actions include doing all applicable related investigative and corrective actions.

    Request To Clarify Terminating Action Is an Option to the Inspections

    Boeing and American Airlines (AA) requested that we clarify that the terminating action can be done instead of the inspections. AA commented to revise the terminating action paragraph to state the following:

    If any inboard flap of the main flap having an affected part number and serial number is found during the inspection required by paragraph (g) of this AD: Except as provided by paragraph (l) of this AD, at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014, do the terminating action in paragraph (k)(1), (k)(2), or (k)(3) of this AD or do the inspections specified in paragraph (h)(1) or (h)(2) of this AD, in accordance with the Accomplishment Instructions of Boeing Special attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014. Repeat the inspections thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014, until a terminating action in paragraph (k)(1), (k)(2), or (k)(3) of this AD is done.

    AA commented that this change would align the proposed rule with paragraph 1.E., “Compliance,” table 1 and table 2, of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014. AA also stated that this would clearly indicate that the terminating action would preclude having to accomplish first the initial inspection requirement in paragraph (h) of the proposed AD. Boeing requested that we add a sentence to the end of paragraph (h) to specify that the inspections are not required for any affected inboard flap assembly where one of the terminating actions specified in paragraph (k)(1), (k)(2), or (k)(3) of the proposed AD have been done.

    We agree with the commenters' request. We have revised paragraph (h) of this AD to clarify that the terminating actions may preclude the initial inspections because rework or replacement of the parts prevent the unsafe condition.

    Request To Clarify the Applicability

    Delta Airlines (DAL) requested that we clarify whether paragraph (c) of the proposed AD is intended for all Model 777-200, -200LR, -300, and -300ER series airplanes, or all Model 777-200, -200LR, -300 and -300ER series airplanes, identified as Groups 1, 2, and 4 airplanes in Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014.

    DAL stated that paragraph (c) of the proposed AD does not contain Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014, to identify the airplane's applicability for the proposed AD. DAL commented that in the proposed rule under “Differences Between This Proposed AD and the Service Information,” the airplane's applicability is stated. DAL also stated that the same paragraph states that the proposed AD is applicable only to Groups 1, 2, and 4 airplanes (Model 777-200, -200LR, -300 and -300ER series airplanes) specified in Boeing Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014. DAL commented that a review of the “Compliance” paragraph in the service information indicates that the FAA will possibly release an AD for airplanes in Groups 1, 2, and 4.

    We agree with the commenter's request to clarify the applicability of this AD. This AD applies to all Model 777-200, -200LR, -300, and -300ER series airplanes as specified in paragraph (c) of this AD. The description of Groups 1, 2, and 4 airplanes in section 1.A., “Effectivity,” of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014, specifies Model 777-200, -200LR, -300, and -300ER series airplanes. Additionally, as noted in the service information, the table of variable numbers given in section 1.A., “Effectivity,” only reflects up to line number 1322, and affected airplanes after line number 1322 will be added to the profile page of MyBoeingFleet.com. Therefore, this AD applies to all Model 777-200, -200LR, -300, and -300ER series airplanes. We have not changed this AD in this regard.

    Conclusion

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

    • Are consistent with the intent that was proposed in the NPRM 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.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014. The service information describes procedures for an inspection for the affected part number and serial number of the main flap; various additional repetitive inspections of the fitting, if necessary; and replacement of the fitting or nested bushing installation, if necessary, which would terminate the inspections. The service information also describes an optional terminating action for the repetitive inspections. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 148 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S. operators Inspection to determine the part number 3 work-hours × $85 per hour = $255 $0 $255 $37,740. Additional Inspections Up to 7 work-hours × $85 per hour = $595, per cycle 0 Up to $595, per cycle Up to $88,060, per cycle.

    We estimate the following costs to do any necessary replacements that will be required based on the results of the inspection. The nested bushing installation of the attach fitting and the fitting replacement are also optional terminating actions. We have no way of determining the number of aircraft on which these actions might be done.

    On-Condition Costs Action Labor cost Parts cost Cost per product Nested bushing installation of the attach fitting 40 work-hours × $85 per hour = $3,400 $45 $3,445. Fitting replacement 73 work-hours × $85 per hour = $6,205 7,400 13,605.

    According to the manufacturer, all 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.

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

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

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

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

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

    (3) Will not affect intrastate aviation in Alaska, and

    (4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-08-03 The Boeing Company: Amendment 39-18479; Docket No. FAA-2015-3147; Directorate Identifier 2014-NM-094-AD. (a) Effective Date

    This AD is effective May 18, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all The Boeing Company Model 777-200, -200LR, -300, and -300ER series airplanes, certificated in any category.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by reports of fractured forward attach fittings of the inboard flap outboard aft flap track. The fractured fittings were determined to be the result of corrosion pits forming on the inside diameter of the fittings. We are issuing this AD to detect and correct fracture of the fitting, which could result in the loss of the inboard aft flap and could lead to a punctured fuselage, causing injury to the flightcrew and passengers, and damage to the airplane.

    (f) Compliance

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

    (g) Inspection To Determine the Part Number

    At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014, except as provided by paragraph (l) of this AD: Do an inspection of the main flap of the inboard flap assembly for affected part and serial numbers, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014. A review of airplane maintenance records is acceptable in lieu of this inspection if the part number and serial number of the inboard flap can be conclusively determined from that review.

    (h) Additional Inspections

    If any main flap of the inboard flap assembly having an affected part number and serial number is found during the inspection required by paragraph (g) of this AD: Except as provided by paragraph (l) of this AD, at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014, do the terminating action specified in paragraph (k)(1), (k)(2), or (k)(3) of this AD, or do the inspections specified in paragraph (h)(1) or (h)(2) of this AD, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014. Repeat the inspections thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014, until a terminating action in paragraph (k)(1), (k)(2), or (k)(3) of this AD is done. Accomplishing a terminating action specified in paragraph (k)(1), (k)(2), or (k)(3) of this AD terminates the inspections required by this paragraph for that fitting only.

    (1) At the forward attach fitting of the aft flap track of the inboard flap: Do a detailed inspection for cracking and bushing migration, and a high frequency eddy current inspection for cracking, in accordance with Part 2 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014.

    (2) At the forward attach fitting of the aft flap track of the inboard flap: Do a detailed inspection for cracking and bushing migration, and an ultrasound inspection for cracking, in accordance with Part 3 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014.

    (i) Corrective Action for Bushing Migration

    If any bushing migration but no cracking is found during any inspection required by paragraph (h) of this AD: At the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014, do the actions specified in paragraphs (i)(1) through (i)(3) of this AD. Accomplishment of a terminating action specified in paragraph (i)(3) or (k) of this AD terminates the actions required by this paragraph for that fitting only.

    (1) Apply corrosion inhibiting compound BMS 3-23, Type II, around the bushing flanges on each side of the fitting, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014. Re-apply the corrosion inhibiting compound at the time specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014.

    (2) Repeat the inspections specified in paragraph (h)(1) or (h)(2) of this AD, except inspect for cracking only.

    (3) Do a terminating action specified in paragraph (i)(3)(i), (i)(3)(ii), or (i)(3)(iii) of this AD.

    (i) Install a nested bushing to the forward attach fitting of the aft flap track of the inboard flap, including doing all applicable related investigative actions, in accordance with Part 4 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014.

    (ii) Replace the forward attach fitting of the aft flap track of the inboard flap with an aluminum fitting, including doing all applicable related investigative actions, in accordance with Part 5 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014.

    (iii) Replace the forward attach fitting of the aft flap track of the inboard flap with a titanium fitting, including doing all applicable related investigative actions, in accordance with Part 6 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014.

    (j) Corrective Actions for Cracking

    If any cracking is found during any inspection required by paragraph (h) or (i)(3) of this AD: At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014, do a terminating action specified in paragraph (j)(1) or (j)(2) of this AD. Replacement of the forward attach fitting as specified in paragraph (j)(1) or (j)(2) of this AD terminates the actions in this AD for that fitting only.

    (1) Replace the forward attach fitting of the aft flap track of the inboard flap with an aluminum fitting, including doing all applicable related investigative and corrective actions, in accordance with Part 5 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014.

    (2) Replace the forward attach fitting of the aft flap track of the inboard flap with a titanium fitting, including doing all applicable related investigative and corrective actions, in accordance with Part 6 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014.

    (k) Optional Terminating Actions

    (1) Installation of the nested bushing to the forward attach fitting of the aft flap track of the inboard flap, in accordance with Part 4 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014, terminates the requirements of this AD for that fitting only, provided no cracking is found during any inspection specified in Part 4 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014, and all corrosion has been removed.

    (2) Replacement of the forward attach fitting of the aft flap track of the inboard flap with an aluminum fitting, in accordance with Part 5 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014, terminates the requirements of this AD for that fitting only.

    (3) Replacement of the forward attach fitting of the aft flap track of the inboard flap with a titanium fitting, in accordance with Part 6 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014, terminates the requirements of this AD for that fitting only.

    (l) Exception to the Service Information

    Where Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (m) Credit for Previous Actions

    (1) This paragraph provides credit for the actions specified in paragraphs (h)(1) and (h)(2) of this AD, if those actions were performed before the effective date of this AD using Boeing Special Attention Service Bulletin 777-57-0094, dated January 29, 2014, which is not incorporated by reference in this AD.

    (2) This paragraph provides credit for the actions specified in paragraph (h)(1) of this AD, if those actions were performed before the effective date of this AD using Boeing Multi Operator Message MOM-MOM-13-0137-01B, dated February 21, 2013, which is not incorporated by reference in this AD.

    (n) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (o)(1) of this AD. Information may be emailed to: [email protected]

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (3) An AMOC that provides an acceptable level of safety may be used for any repair, 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 (n)(4)(i) and (n)(4)(ii) 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. 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.

    (o) Related Information

    (1) For more information about this AD, contact Eric Lin, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-917-6412; fax: 425-917-6590; email: [email protected]

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

    (p) Material Incorporated by Reference

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

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

    (i) Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014.

    (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 https://www.myboeingfleet.com.

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

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

    Issued in Renton, Washington, on March 31, 2016. Victor Wicklund, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-08359 Filed 4-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-2959; Directorate Identifier 2015-NM-008-AD; Amendment 39-18470; AD 2016-07-25] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 787-8 airplanes. This AD was prompted by reports indicating that the ram air turbine (RAT) assembly may fail to operate if deployed at low airspeeds. This AD requires replacing either the RAT pump and control module assembly or the entire RAT assembly. We are issuing this AD to prevent failure of the RAT assembly to operate at low air speeds. The volume fuse on the RAT assembly may be activated in-flight before the RAT is deployed. This may lead to improper pump hydraulic pressure offloading when the RAT is needed. Failure of the RAT to operate in an all engine out event would result in loss of control of the airplane.

    DATES:

    This AD is effective May 18, 2016.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of May 18, 2016.

    ADDRESSES:

    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 https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-2959.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-2959; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Sean J. Schauer, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6479; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 787-8 airplanes. The NPRM published in the Federal Register on July 24, 2015 (80 FR 43972) (“the NPRM”). The NPRM was prompted by reports indicating that the RAT assembly may fail to operate if deployed at low airspeeds. The NPRM proposed to require replacing either the RAT pump and control module assembly or the entire RAT assembly. We are issuing this AD to prevent failure of the RAT assembly to operate at low air speeds. The volume fuse on the RAT assembly may be activated in-flight before the RAT is deployed. This may lead to improper pump hydraulic pressure offloading when the RAT is needed. Failure of the RAT to operate in an all engine out event would result in loss of control of the airplane.

    Comments

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

    Support for the NPRM

    United Airlines stated that it supports the NPRM.

    Request for Correction of RAT Minimum Design Speed

    Boeing requested that we revise the NPRM to state that the RAT minimum design speed is 120 knots, not 130 knots. Boeing explained that the RAT will remain operational as the airplane decelerates through the minimum RAT design speed of 120 knots, not 130 knots. Boeing expressed that the performance of the RAT was shown to meet the Boeing Model 787 requirement that specifies 120 knots as the minimum RAT design speed.

    We agree that the RAT will remain operational as the airplane decelerates through the minimum RAT design speed of 120 knots, not 130 knots. However, that specific information is in the preamble of the NPRM, which is not restated in this final rule. Therefore, no changes have been made to this final rule in this regard.

    Request To Revise Compliance Time

    The Air Line Pilots Association requested that we revise the compliance time of 36 months, to 12 months because the 36 months compliance time is too long, and that 12 months would be more suitable.

    We disagree with the request to revise the compliance time. No data was submitted to substantiate the request made by the commenter. Engineering analysis indicates that 36 months is an appropriate compliance time to complete the required actions of this AD, and provides an acceptable level of safety. Most ADs, including this one, permit operators to accomplish the requirements of an AD at a time earlier than the specified compliance time; therefore, an operator may choose to perform the actions required by this AD earlier then the specified compliance time. We have made no changes to this final rule in this regard.

    Conclusion

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

    • Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin B787-81205-SB290015-00, Issue 002, dated November 25, 2014. The service information describes procedures for replacing either the RAT pump and control module assembly or the RAT assembly including an installation test 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 ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 12 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Replacement 7 work-hours × $85 per hour = $595 N/A $595 $7,140

    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.

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

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

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

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

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

    (3) Will not affect intrastate aviation in Alaska, and

    (4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-07-25 The Boeing Company: Amendment 39-18470; Docket No. FAA-2015-2959; Directorate Identifier 2015-NM-008-AD. (a) Effective Date

    This AD is effective May 18, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 787-8 airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin B787-81205-SB290015-00, Issue 002, dated November 25, 2014.

    (d) Subject

    Air Transport Association (ATA) of America Code 29, Hydraulic Power.

    (e) Unsafe Condition

    This AD was prompted by reports indicating that the ram air turbine (RAT) assembly may fail to operate if deployed at low airspeeds. We are issuing this AD to prevent failure of the RAT assembly to operate at low air speeds. The volume fuse on the RAT assembly may be activated in-flight before the RAT is deployed. This may lead to improper pump hydraulic pressure offloading when the RAT is needed. Failure of the RAT to operate in an all engine out event would result in loss of control of the airplane.

    (f) Compliance

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

    (g) Replacement

    Within 36 months after the effective date of this AD, replace the RAT pump and control module assembly or the RAT assembly, including an installation test and applicable corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB290015-00, Issue 002, dated November 25, 2014. Do all applicable corrective actions before further flight.

    (h) Credit for Previous Actions

    This paragraph provides credit for 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 B787-81205-SB290015-00, Issue 001, dated September 4, 2014, which is not incorporated by reference in this AD.

    (i) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (j)(1) of this AD. Information may be emailed to: [email protected]

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (3) An AMOC that provides an acceptable level of safety may be used for any repair, 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. 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.

    (j) Related Information

    (1) For more information about this AD, contact Sean J. Schauer, Aerospace Engineer, Systems and Equipment Branch, ANM 130S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6479; fax: 425-917-6590; email: [email protected]

    (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.

    (k) Material Incorporated by Reference

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

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

    (i) Boeing Alert Service Bulletin B787-81205-SB290015-00, Issue 002, dated November 25, 2014.

    (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 https://www.myboeingfleet.com.

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

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

    Issued in Renton, Washington, on March 26, 2016. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-07839 Filed 4-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-4810; Directorate Identifier 2015-NM-090-AD; Amendment 39-18475; AD 2016-07-30] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all Airbus Model A330-200, -200 Freighter, and -300 series airplanes, and all Airbus Model A340-200, -300, -500, and -600 series airplanes. This AD was prompted by a report of blockage of Angle of Attack (AOA) probes during climb, leading to activation of the Alpha Protection (Alpha Prot) while the Mach number increased. This activation could cause a continuous nose-down pitch rate that cannot be stopped with backward sidestick input, even in the full backward position. For certain airplanes, this AD requires replacing certain AOA sensors (probes) with certain new AOA sensors. For certain other airplanes, this AD also requires inspections and functional heat testing of certain AOA sensors for discrepancies, and replacement if necessary. We are issuing this AD to prevent erroneous AOA information and Alpha Prot activation due to blocked AOA probes, which could result in a continuous nose-down command and loss of control of the airplane.

    DATES:

    This AD becomes effective May 18, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of May 18, 2016.

    ADDRESSES:

    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 [email protected]; Internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-4810.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2015-4810; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Model A330-200, -200 Freighter, and -300 series airplanes; and all Airbus Model A340-200, -300, -500, and -600 series airplanes. The NPRM published in the Federal Register on November 12, 2015 (80 FR 69899) (“the NPRM”).

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0134, dated July 8, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A330-200, -200 Freighter, and -300 series airplanes; and all Model A340-200, -300, -500, and -600 series airplanes. The MCAI states:

    An occurrence was reported where an Airbus A321 aeroplane encountered a blockage of two Angle of Attack (AOA) probes during climb, leading to activation of the Alpha Protection (Alpha Prot) while the Mach number increased. The flight crew managed to regain full control and the flight landed uneventfully. It was determined that the affected AOA probes are also fitted on A330 and A340 aeroplanes.

    When Alpha Prot is activated due to blocked AOA probes, the flight control laws order a continuous nose down pitch rate that, in a worst case scenario, cannot be stopped with backward sidestick inputs, even in the full backward position. If the Mach number increases during a nose down order, the AOA value of the Alpha Prot will continue to decrease. As a result, the flight control laws will continue to order a nose down pitch rate, even if the speed is above minimum selectable speed, known as VLS.

    This condition, if not corrected, could result in loss of control of the aeroplane.

    Investigation results indicated that aeroplanes equipped with certain UTC Aerospace (UTAS, formerly known as Goodrich) AOA sensors, or equipped with certain SEXTANT/THOMSON AOA sensors, appear to have a greater susceptibility to adverse environmental conditions than aeroplanes equipped with the latest Thales AOA sensor, Part Number (P/N) C16291AB, which was designed to improve AOA indication behaviour in heavy rain conditions.

    Having determined that replacement of these AOA sensors is necessary to achieve and maintain the required safety level of the aeroplane, EASA issued [an AD ***], to require modification of the aeroplanes by replacement of the affected P/N sensors, and, after modification, prohibits (re-) installation of those P/N AOA sensors. That [EASA] AD also required repetitive detailed visual inspections (DET) and functional heating tests of certain Thales AOA sensors and provided an optional terminating action for those inspections.

    Since EASA AD 2015-0089 was issued, based on further analysis results, Airbus issued Operators Information Transmission (OIT) Ref. 999.0017/15 Revision 1, instructing operators to speed up the removal from service of UTAS P/N 0861ED2 AOA sensors.

    For the reasons described above, this [EASA] AD retains the requirements of EASA [AD ***], which is superseded, but reduces the compliance times for aeroplanes with UTAS P/N 0861ED2 AOA sensors installed.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-4810.

    Actions Since the NPRM Was Issued

    Since we issued the NPRM Airbus has issued the following service information:

    • Service Bulletin A330-34-3215, Revision 03, dated July 23, 2015.

    • Service Bulletin A340-34-4215, Revision 03, dated July 27, 2015.

    • Service Bulletin A340-34-5062, Revision 02, dated July 24, 2015.

    Explanation of Certain Changes to the NPRM

    We have revised paragraph (j) of this AD to refer to this revised service information.

    We have also added a new paragraph (l) to this AD, and reidentified subsequent paragraphs, to give credit for doing the actions using the following service information:

    • Airbus Service Bulletin A330-34-3215, Revision 02, dated March 29, 2010.

    • Airbus Service Bulletin A340-34-4215, Revision 02, dated March 29, 2010.

    • Airbus Service Bulletin A340-34-5062, Revision 01, dated March 29, 2010.

    Comments

    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.

    Request To Reduce Certain Compliance Times

    Airbus asked that we reduce the compliance time from 22 months to 12 months for P/N 0861ED removal, and from 7 months to 3 months for P/N 0861ED2 removal.

    We do not agree with the request, as no supporting data was provided by the commenter. We contacted Airbus to determine if there was a justification for reducing the compliance times specified in the proposed AD. We noted that reducing the compliance times would necessitate (under the provisions of the Administrative Procedure Act) reissuing the notice, reopening the period for public comment, considering additional comments subsequently received, and eventually issuing a final rule. Airbus stated it concurs with keeping the compliance times specified in the proposed AD. We have determined that further delay of this final rule is not appropriate. However, if additional data are presented that would justify a shorter compliance time, we may consider further rulemaking on this issue.

    In developing an appropriate compliance time, we considered the safety implications, parts availability, and normal maintenance schedules for timely accomplishment of replacing the AOA sensors, as well as the compliance times required by the EASA AD. In consideration of these factors, we have determined that the compliance time, as proposed, represents an appropriate time in which the AOA sensors can be replaced in a timely manner within the fleet, while still maintaining an adequate level of safety. Most ADs, including this one, permit operators to accomplish the requirements of an AD at a time earlier than the specified compliance time; therefore, an operator may choose to replace the AOA sensors earlier. We have not changed this final rule in this regard.

    Conclusion

    We reviewed the relevant data, considered 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 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.

    Related Service Information Under 1 CFR Part 51

    Airbus has issued the following service information:

    • Service Bulletin A330-34-3215, Revision 03, dated July 23, 2015.

    • Service Bulletin A330-34-3228, dated October 7, 2009.

    • Service Bulletin A330-34-3315, dated March 26, 2015.

    • Service Bulletin A340-34-4215, Revision 03, dated July 27, 2015.

    • Service Bulletin A340-34-4234, dated October 7, 2009.

    • Service Bulletin A340-34-4294, dated March 26, 2015.

    • Service Bulletin A340-34-5062, Revision 02, dated July 24, 2015.

    • Service Bulletin A340-34-5070, dated October 9, 2009.

    • Service Bulletin A340-34-5105, dated March 26, 2015.

    The service information describes procedures for replacing certain pitot probes with certain new pitot probes. The service information also describes procedures for inspections and functional heat testing of certain pitot probes, and replacement if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

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

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S. operators Replacement 5 work-hours × $85 per hour = $425 $0 $425 $23,375 Inspection/test 3 work-hours × $85 per hour = $255 0 255 per inspection/test cycle 14,025

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

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

    We determined that this 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.

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-07-30 Airbus: Amendment 39-18475. Docket No. FAA-2015-4810; Directorate Identifier 2015-NM-090-AD. (a) Effective Date

    This AD becomes effective May 18, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

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

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

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

    (d) Subject

    Air Transport Association (ATA) of America Code 34, Navigation.

    (e) Reason

    This AD was prompted by a report of blockage of two Angle of Attack (AOA) probes during climb, leading to activation of the Alpha Protection (Alpha Prot) while the Mach number increased. This activation could cause a continuous nose-down pitch rate that cannot be stopped with backward sidestick input, even in the full backward position. We are issuing this AD to prevent erroneous AOA information and Alpha Prot activation due to blocked AOA probes, which could result in a continuous nose-down command and consequent loss of control of the airplane.

    (f) Compliance

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

    (g) Replacement of Certain UTC Aerospace (UTAS) AOA Sensors

    For airplanes on which any UTAS AOA sensor having part number (P/N) 0861ED or P/N 0861ED2 is installed: At the applicable time specified in paragraph (h) of this AD, replace all Captain and First Officer AOA sensors (probes) having P/N 0861ED or 0861ED2 with AOA sensors having Thales P/N C16291AB, in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (g)(1), (g)(2), or (g)(3) of this AD.

    (1) Airbus Service Bulletin A330-34-3315, dated March 26, 2015 (for Model A330 airplanes).

    (2) Airbus Service Bulletin A340-34-4294, dated March 26, 2015 (for Model A340-200 and -300 airplanes).

    (3) Airbus Service Bulletin A340-34-5105, dated March 26, 2015 (for Model A340-500 and -600 airplanes).

    (h) Compliance Times for the Requirements of Paragraph (g) of This AD

    Do the actions required by paragraph (g) of this AD at the applicable time specified in paragraph (h)(1) or (h)(2) of this AD.

    (1) For airplanes with AOA sensors having P/N 0861ED: Within 22 months after the effective date of this AD.

    (2) For airplanes with AOA sensors having P/N 0861ED2: Within 7 months after the effective date of this AD.

    (i) Replacement of Certain SEXTANT/THOMSON AOA Sensors

    For airplanes on which any SEXTANT/THOMSON AOA sensor having P/N 45150320 is installed: Within 22 months after the effective date of this AD, replace all SEXTANT/THOMSON AOA sensors (probes) having P/N 45150320 with AOA sensors having Thales P/N C16291AB, in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (i)(1) or (i)(2) of this AD.

    (1) Airbus Service Bulletin A330-34-3228, dated October 7, 2009 (for Model A330 airplanes).

    (2) Airbus Service Bulletin A340-34-4234, dated October 7, 2009 (for Model A340-200 and -300 airplanes).

    (j) Repetitive Inspections/Tests of Certain Thales AOA Sensors

    For airplanes on which one or more Thales AOA sensor having P/N C16291AA is installed: Before the accumulation of 17,000 total flight hours on the AOA sensor since first installation on an airplane, or within 6 months after the effective date of this AD, whichever occurs later; and thereafter at intervals not to exceed 3,800 flight hours; do a detailed inspection of the three AOA sensors at FINs 3FP1, 3FP2, and 3FP3 for discrepancies (e.g., the vane of the sensor does not deice properly), and a functional heating test of each AOA sensor having P/N C16291AA, in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (j)(1), (j)(2), or (j)(3) of this AD.

    (1) Airbus Service Bulletin A330-34-3215, Revision 03, dated July 23, 2015 (for Model A330 airplanes).

    (2) Airbus Service Bulletin A340-34-4215, Revision 03, dated July 27, 2015 (for Model A340-200 and -300 airplanes).

    (3) Airbus Service Bulletin A340-34-5062, Revision 02, dated July 24, 2015 (for Model A340-500 and -600 airplanes).

    (k) Corrective Actions

    If any discrepancy is found during any inspection required by paragraph (j) of this AD, or if any test is failed during the heating test required by paragraph (j) of this AD: Before further flight, replace all affected AOA sensors with sensors identified in paragraph (k)(1) or (k)(2) of this AD, in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (j)(1), (j)(2), or (j)(3) of this AD.

    (1) Replace with AOA sensors having Thales P/N C16291AA, on which the inspection and test required by paragraph (j) of this AD were passed.

    (2) Replace with AOA sensors having Thales P/N C16291AB.

    (l) Credit for Previous Actions

    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 the applicable service information specified in paragraphs (l)(1), (l)(2), and (l)(3) of this AD, which are not incorporated by reference in this AD.

    (1) Airbus Service Bulletin A330-34-3215, Revision 02, dated March 29, 2010.

    (2) Airbus Service Bulletin A340-34-4215, Revision 02, dated March 29, 2010.

    (3) Airbus Service Bulletin A340-34-5062, Revision 01, dated March 29, 2010.

    (m) Airplanes Excluded From Certain Requirements

    (1) The actions specified in paragraphs (g), (i), (j), and (k) of this AD are not required, provided that the conditions specified in paragraphs (m)(1)(i), (m)(1)(ii), and (m)(1)(iii) of this AD are met.

    (i) Airbus Modification 58555 (installation of Thales P/N C16291AB AOA sensors) has been embodied in production.

    (ii) Airbus Modification 46921 (installation of UTAS AOA sensors) has not been embodied in production.

    (iii) No AOA sensor having SEXTANT/THOMSON P/N 45150320 or UTAS P/N 0861ED or P/N 0861ED2 has been installed on the airplane since date of issuance of the original airworthiness certificate or date of issuance of the original export certificate of airworthiness.

    (2) The actions specified in paragraphs (g) and (i) of this AD are not required, provided that all conditions specified in paragraphs (m)(2)(i), (m)(2)(ii), and (m)(2)(iii) of this AD are met.

    (i) Only AOA sensors with part numbers approved after the effective date of this AD have been installed.

    (ii) The AOA sensor part number is approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA).

    (iii) The installation is accomplished in accordance with airplane modification instructions approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; the EASA; or Airbus's EASA DOA.

    (n) Optional Terminating Modification

    Replacement of all Thales AOA sensors having P/N C16291AA with Thales AOA sensors having P/N C16291AB, in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (n)(1), (n)(2), or (n)(3) of this AD, terminates the repetitive inspections and functional heating tests required by paragraph (j) of this AD.

    (1) Airbus Service Bulletin A330-34-3228, dated October 7, 2009 (for Model A330 airplanes).

    (2) Airbus Service Bulletin A340-34-4234, dated October 7, 2009 (for Model A340-200 and -300 airplanes).

    (3) Airbus Service Bulletin A340-34-5070, dated October 9, 2009 (for Model A340-500 and -600 airplanes).

    (o) Parts Installation Prohibitions

    (1) For airplanes on which only Thales P/N C16291AB AOA sensors are installed as of the effective date of this AD: No person may install, on any airplane, a Thales AOA sensor having P/N C16291AA as of the effective date of this AD.

    (2) For airplanes on which the modification specified in paragraph (n) of this AD has been done: No person may install, on any airplane, a Thales AOA sensor having P/N C16291AA after accomplishing the specified modification.

    (3) For airplanes on which Thales P/N C16291AA or P/N C16291AB AOA sensors are installed as of the effective date of this AD: No person may install, on any airplane, a UTAS AOA sensor having P/N 0861ED or P/N 0861ED2, or a SEXTANT/THOMSON AOA sensor having P/N 45150320, as of the effective date of this AD.

    (4) For airplanes on which the replacement required by paragraph (i) of this AD has been done: No person may install, on any airplane, a UTAS AOA sensor having P/N 0861ED or P/N 0861ED2, or a SEXTANT/THOMSON AOA sensor having P/N 45150320, after accomplishing the replacement.

    (5) For airplanes on which the replacement required by paragraph (g) of this AD has been done: No person may install, on any airplane, a UTAS AOA sensor having P/N 0861ED or P/N 0861ED2, or a SEXTANT/THOMSON AOA sensor having P/N 45150320, after accomplishing the replacement, except that a UTAS AOA sensor having P/N 0861ED may be installed in the standby position of that airplane.

    (p) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

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

    (3) Required for Compliance (RC): If any service information contains procedures or tests that are identified as RC, those procedures and tests must be done to comply with this AD; any procedures or tests that are not identified as RC are recommended. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. Any substitutions or changes to procedures or tests identified as RC require approval of an AMOC.

    (q) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0134, dated July 8, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-4810.

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

    (r) Material Incorporated by Reference

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

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

    (i) Airbus Service Bulletin A330-34-3215, Revision 03, dated July 23, 2015.

    (ii) Airbus Service Bulletin A330-34-3228, dated October 7, 2009.

    (iii) Airbus Service Bulletin A330-34-3315, dated March 26, 2015.

    (iv) Airbus Service Bulletin A340-34-4215, Revision 03, dated July 27, 2015.

    (v) Airbus Service Bulletin A340-34-4234, dated October 7, 2009.

    (vi) Airbus Service Bulletin A340-34-4294, dated March 26, 2015.

    (vii) Airbus Service Bulletin A340-34-5062, Revision 02, dated July 24, 2015.

    (viii) Airbus Service Bulletin A340-34-5070, dated October 9, 2009.

    (ix) Airbus Service Bulletin A340-34-5105, dated March 26, 2015.

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

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

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

    Issued in Renton, Washington, on March 26, 2016. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-08267 Filed 4-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-2464; Directorate Identifier 2014-NM-195-AD; Amendment 39-18476; AD 2016-07-31] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are superseding Airworthiness Directive (AD) 2013-22-11 for certain The Boeing Company Model 747-400 and -400D series airplanes. AD 2013-22-11 required repetitive inspections to detect cracks in the floor panel attachment fastener holes of certain upper deck floor beam upper chords, repetitive inspections, corrective actions if necessary, and replacement of the upper deck floor beam upper chords. Since we issued AD 2013-22-11, we received a report that certain fastener holes in the upper deck floor beam upper chords may not have been inspected in accordance with AD 2013-22-11. This AD adds additional repetitive inspections for cracks for certain airplanes, and corrective actions if necessary. We are issuing this AD to detect and correct fatigue cracking in certain upper chords of the upper deck floor beam. Such cracks could become large and cause the floor beams to become severed and result in rapid decompression or reduced controllability of the airplane.

    DATES:

    This AD is effective May 18, 2016.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of May 18, 2016.

    ADDRESSES:

    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 https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-2464.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-2464; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Nathan Weigand, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6428; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2013-22-11, Amendment 39-17643 (78 FR 66254, November 5, 2013), (“AD 2013-22-11”). AD 2013-22-11 applied to certain The Boeing Company Model 747-400 and -400D series airplanes. The NPRM published in the Federal Register on July 23, 2015 (80 FR 43648) (“the NPRM”). The NPRM was prompted by a report that certain fastener holes in the upper deck floor beam upper chords may not have been inspected in accordance with AD 2013-22-11. The NPRM proposed to continue to require repetitive inspections to detect cracks in the floor panel attachment fastener holes of certain upper deck floor beam upper chords, repetitive inspections, corrective actions if necessary, and replacement of the upper deck floor beam upper chords. The NPRM also proposed to require additional repetitive inspections for cracks for certain airplanes, and corrective actions if necessary. We are issuing this AD to detect and correct fatigue cracking in certain upper chords of the upper deck floor beam. Such cracking could become large and cause the floor beams to become severed and result in rapid decompression or reduced controllability of the airplane.

    Comments

    We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment. United Airlines supported the NPRM.

    Request To Revise “Exceptions to Service Information Specifications”

    Boeing requested that paragraph (m)(4), “Exceptions to Service Information Specifications,” of the proposed AD be revised. Boeing stated that Boeing Alert Service Bulletin 747-53A2688, Revision 1, dated September 19, 2012, which is included in paragraph (m)(4), has the same compliance time as table 3 in Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014; therefore, Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, should also be included in paragraph (m)(4) of the proposed AD.

    For the reason provided by the commenter we agree to include Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, in paragraph (m)(4) of this AD. We have also revised paragraph (m)(4) of this AD by removing the reference to Boeing Alert Service Bulletin 747-53A2688, Revision 1, dated September 19, 2012, because this AD only refers to Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, for compliance times.

    Conclusion

    We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the change described 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.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014. The service information describes procedures for upper deck floor beam upper chord inspection and repair at floor panel attachment fastener holes in section 41 and section 42. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 84 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S.
  • operators
  • Inspection (retained actions from AD 2013-22-11) Up to 309 work-hours × $85 per hour = $26,265 per inspection cycle $0 Up to $26,265 per inspection cycle Up to $2,206,260 per inspection cycle. New inspections Up to 241 work-hours × $85 per hour = $20,485 0 Up to $20,485 per inspection cycle Up to $1,720,740 per inspection cycle.

    We have received no definitive data that will enable us to provide a cost estimate for the repair or modification specified in this AD.

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

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

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

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

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

    (3) Will not affect intrastate aviation in Alaska, and

    (4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2013-22-11, Amendment 39-17643 (78 FR 66254, November 5, 2013), and adding the following new AD: 2016-07-31 The Boeing Company: Amendment 39-18476; Docket No. FAA-2015-2464; Directorate Identifier 2014-NM-195-AD. (a) Effective Date

    This AD is effective May 18, 2016.

    (b) Affected ADs

    This AD replaces AD 2013-22-11, Amendment 39-17643 (78 FR 66254, November 5, 2013) (“AD 2013-22-11”).

    (c) Applicability

    This AD applies to The Boeing Company Model 747-400 and -400D series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by an evaluation by the design approval holder indicating that certain upper chords of the upper deck floor beam are subject to widespread fatigue damage. This AD was also prompted by reports that certain fastener holes in the upper deck floor beam upper chords in Section 41, may not have been inspected in accordance with AD 2013-22-11. We are issuing this AD to detect and correct fatigue cracking in certain upper chords of the upper deck floor beam, which could become large and cause the floor beams to become severed and result in rapid decompression or reduced controllability of the airplane.

    (f) Compliance

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

    (g) Section 41—Repetitive Inspections, and Corrective Actions

    At the applicable time specified in table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, do open hole or surface high frequency eddy current inspections (HFEC) for cracking of the floor panel attachment holes in the upper deck floor beam upper chords, in accordance with Part 1 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014. If any crack is found during any inspection, before further flight, repair in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, or repair using a method approved in accordance with the procedures specified in paragraph (o) of this AD. Repeat the inspections thereafter at the applicable time specified in table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, until an action specified in paragraph (g)(1) or (g)(2) of this AD is done.

    (1) Doing a repair as a hole modification in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, except as required by paragraph (m)(2) of this AD, terminates the inspections required by paragraph (g) of this AD for the modified hole only.

    (2) Doing a modification in accordance with Figure 5 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, except as required by paragraph (m)(2) of this AD, terminates the inspections required by paragraph (g) of this AD for the modification only.

    (h) Section 41—Repetitive Inspection of Repaired or Modified Holes, and Corrective Actions

    For airplanes on which a repair specified in Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, is done, or a modification specified in Figure 5 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, is done: At the applicable time specified in table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, except as required by paragraph (m)(3) of this AD, do open hole or surface HFEC for cracking of repaired or modified floor panel attachment holes in the upper deck floor beam upper chords, in accordance with Part 1 or Part 3, as applicable, of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014. If any crack is found during any inspection required by this paragraph, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (o) of this AD. Repeat the inspections thereafter at the applicable time specified in table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014.

    (i) Section 44—Repetitive Inspection, and Corrective Actions

    For airplanes identified in Group 1 in Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014: At the applicable time specified in table 3 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, except as required by paragraph (m)(4) of this AD, do open hole or surface HFEC inspections of the floor panel attachment holes in the upper deck floor beam upper chords, in accordance with Part 4 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014. If any crack is found during any inspection required by this paragraph, before further flight, repair in accordance with Part 5 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, except as required by paragraph (m)(2) of this AD. Repeat the inspections thereafter at the applicable time specified in table 3 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, until an action specified in paragraph (i)(1) or (i)(2) of this AD is done.

    (1) Doing a repair as a hole modification in accordance with Part 5 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, except as required by paragraph (m)(2) of this AD, terminates the inspections required by paragraph (i) of this AD for that modified hole only.

    (2) Doing a modification in accordance with Figure 21 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, except as required by paragraph (m)(2) of this AD, terminates the inspections required by paragraph (i) of this AD for that modified hole only.

    (j) Section 44—Repetitive Inspection of Repaired or Modified Holes, and Corrective Actions

    For airplanes identified in Group 1 in Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, on which a repair specified in Part 5 of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, is done or the modification specified in Figure 21 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, is done: At the applicable time specified in table 4 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, except as required by paragraph (m)(3) of this AD, do open hole or surface HFEC inspections of repaired or modified floor panel attachment holes in the upper deck floor beam upper chords, in accordance with Part 4 or Part 6, as applicable, of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014. If any crack is found during any inspection by this paragraph, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (o) of this AD. Repeat the inspections thereafter at the applicable time specified in table 4 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014.

    (k) Sections 41 and 44—Replacement and Post-Replacement Repetitive Inspections

    At the applicable time specified in table 5 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014: Replace all upper deck floor beam upper chords, in accordance with Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014. Within 20,000 flight cycles after doing the replacement, do the inspections specified in paragraphs (g) and (i) of this AD, as applicable. Thereafter, repeat the inspections required by paragraphs (g) and (i) of this AD, as applicable, at the times specified in paragraphs (g) and (i) of this AD.

    (l) Section 41—Repetitive Inspection of Plugged or Re-Used Holes, and Corrective Actions

    For airplanes identified in Group 2 in Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014: At the applicable time specified in table 6 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, except as required by paragraph (m)(1) of this AD, at all plugged or reused floor panel attachment holes in the affected floor beam upper chords, do a surface HFEC inspection of the upper deck floor beam upper chords and detailed inspection for cracks on the vertical flange, in accordance with Part 8 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014. If any crack is found during any inspection required by this paragraph, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (o) of this AD. Repeat the inspections thereafter at the applicable time specified in table 6 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014.

    (m) Exceptions to Service Information Specifications

    (1) Where Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, specifies a compliance time “after the Revision 2 date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (2) Where Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014; specifies to contact Boeing for certain procedures: Do the specified actions before further flight using a method approved in accordance with the procedures specified in paragraph (o) of this AD.

    (3) Where table 2 or table 4 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, specifies to contact Boeing for inspections and compliance times: Before further flight, contact the Manager, Seattle Aircraft Certification Office (ACO), FAA, for inspections and compliance times and accomplish the inspections at the given times.

    (4) Where Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, specifies a compliance time “after the Revision 1 date of this service bulletin,” this AD requires compliance within the specified compliance time after December 10, 2013 (the effective date of AD 2013-22-11).

    (n) Credit for Previous Actions

    (1) This paragraph restates the requirements of paragraph (o) of AD 2013-22-11, with new reference to paragraph (h) of this AD. This paragraph provides credit for the actions required by paragraphs (g) and (h) of this AD, if those actions were performed before December 10, 2013 (the effective date of AD 2013-22-11), using Boeing Alert Service Bulletin 747-53A2688, dated August 21, 2008, which was incorporated by reference in AD 2009-10-16, Amendment 39-15901 (74 FR 22424, May 13, 2009).

    (2) This paragraph provides credit for the actions required by paragraphs (g) through (k) of this AD, if those actions were performed before the effective date of this AD using Boeing Alert Service Bulletin 747-53A2688, Revision 1, dated September 19, 2012, which was incorporated by reference in AD 2013-22-11.

    (o) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle 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 (p) of this AD. Information may be emailed to: [email protected]

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

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

    (4) AMOCs approved for AD 2013-22-11 are approved as AMOCs for the corresponding provisions of paragraphs (g) through (k) of this AD.

    (p) Related Information

    For more information about this AD, contact Nathan Weigand, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6428; fax: 425-917-6590; email: [email protected]

    (q) Material Incorporated by Reference

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

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

    (i) Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014.

    (ii) Reserved.

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

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

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

    Issued in Renton, Washington, on March 30, 2016. Victor Wicklund, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-08271 Filed 4-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-8136; Directorate Identifier 2014-NM-189-AD; Amendment 39-18480; AD 2016-08-04] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Airbus Model A330-223F and -243F airplanes. This AD was prompted by a report of missing fasteners in certain locations of the fuselage during production. This AD would require inspecting for missing, damaged, or incorrectly installed fasteners; and corrective actions if necessary. We are issuing this AD to detect and correct cracking of the fuselage due to missing, damaged, or incorrectly installed fasteners, which could result in reduced structural integrity of the fuselage.

    DATES:

    This AD is effective May 18, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of May 18, 2016.

    ADDRESSES:

    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 [email protected]; Internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-8136.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-8136; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Model A330-223F and -243F airplanes. The NPRM published in the Federal Register on January 4, 2016 (81 FR 22) (“the NPRM”). The NPRM was prompted by a report of missing fasteners in certain locations of the fuselage during production. The NPRM proposed to require inspecting for missing, damaged, or incorrectly installed fasteners; and corrective actions if necessary. We are issuing this AD to detect and correct cracking of the fuselage due to missing, damaged, or incorrectly installed fasteners, which could result in reduced structural integrity of the fuselage.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0197, dated September 4, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A330-223F and -243F airplanes. The MCAI states:

    During inspection of various fuselage areas on some A330-200F aeroplanes on the production line, prior to delivery, some fasteners were found missing.

    This condition, if not detected and corrected, could lead to crack initiation and propagation, possibly resulting in reduced structural integrity of the fuselage.

    To address this condition, Airbus issued several Service Bulletins (SB), providing inspection and modification instructions, as applicable.

    For the reasons described above, this [EASA] AD requires detailed inspections of the affected areas and, depending on findings, accomplishment of the applicable corrective actions.

    Corrective actions include replacing any missing, damaged, or incorrectly installed fasteners, and repair of any discrepancy (deformation or cracking of the fastener rows) of the affected fuselage frame areas. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-8136.

    Comments

    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.

    Conclusion

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

    • Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM.

    Related Service Information Under 1 CFR Part 51

    We reviewed the following Airbus service information, which describes procedures for inspecting for missing, damaged, or incorrectly installed fasteners; and corrective actions.

    • Airbus Service Bulletin A330-53-3202, dated May 6, 2014.

    • Airbus Service Bulletin A330-53-3212, dated May 6, 2014.

    • Airbus Service Bulletin A330-53-3213, dated May 6, 2014.

    • Airbus Service Bulletin A330-53-3214, dated May 6, 2014.

    We also reviewed the following Airbus service information, which describes procedures for modification of certain sections of the fuselage.

    • Airbus Service Bulletin A330-53-3216, dated May 6, 2014.

    • Airbus Service Bulletin A330-53-3217, dated May 6, 2014.

    • Airbus Service Bulletin A330-53-3218, dated May 6, 2014.

    • Airbus Service Bulletin A330-53-3219, dated May 6, 2014.

    This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 3 airplanes of U.S. registry.

    We also estimate that it will take about 10 work-hours per product to comply with the basic inspection requirements of this AD, and 1 work-hour per product to report inspection findings. 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 $2,805, or $935 per product.

    In addition, we estimate that any necessary modification will take about 40 work-hours and require parts costing $210, for a cost of $3,610 per product. We have no way of determining the number of aircraft that might need this action.

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

    Paperwork Reduction Act

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

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

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

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

    1. Is not a “significant regulatory action” under Executive Order 12866;

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

    3. Will not affect intrastate aviation in Alaska; and

    4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-08-04 Airbus: Amendment 39-18480; Docket No. FAA-2015-8136; Directorate Identifier 2014-NM-189-AD. (a) Effective Date

    This AD is effective May 18, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Airbus Model A330-223F and -243F airplanes, certificated in any category; manufacturer serial numbers 1004, 1032, 1051, 1062, 1070, 1092, 1115, 1136, 1148, 1164, 1175, 1180, 1320, 1332, 1344, 1350, 1368, 1380, 1386, 1406, 1414, 1418, and 1428.

    (d) Subject

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

    (e) Reason

    This AD was prompted by a report of missing fasteners in certain locations of the fuselage during production. We are issuing this AD to prevent cracking of the fuselage due to missing, damaged, or incorrectly installed fasteners, which could result in reduced structural integrity of the fuselage.

    (f) Compliance

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

    (g) Detailed Inspection

    Within 72 months since first flight of the airplane: Do a detailed inspection of all applicable fuselage zones for missing, damaged, or incorrectly installed fasteners, in accordance with the Accomplishment Instructions of the applicable service information specified in paragraphs (g)(1) through (g)(4) of this AD.

    (1) Airbus Service Bulletin A330-53-3202, dated May 6, 2014.

    (2) Airbus Service Bulletin A330-53-3212, dated May 6, 2014.

    (3) Airbus Service Bulletin A330-53-3213, dated May 6, 2014.

    (4) Airbus Service Bulletin A330-53-3214, dated May 6, 2014.

    (h) Corrective Actions

    If any missing, damaged, or incorrectly installed fastener is found during the detailed inspection required by paragraph (g) of this AD, before further flight, do a detailed inspection for discrepancies (deformation or cracking) of the adjacent fastener rows of the applicable fuselage zones, in accordance with the Accomplishment Instructions of the applicable service information specified in paragraphs (g)(1) through (g)(4) of this AD.

    (1) If no discrepancy is found, before further flight, modify the affected fuselage zone, in accordance with the applicable service information specified in paragraphs (h)(1)(i) through (h)(1)(iv) of this AD.

    (i) Airbus Service Bulletin A330-53-3216, dated May 6, 2014.

    (ii) Airbus Service Bulletin A330-53-3217, dated May 6, 2014.

    (iii) Airbus Service Bulletin A330-53-3218, dated May 6, 2014.

    (iv) Airbus Service Bulletin A330-53-3219, dated May 6, 2014.

    (2) If any discrepancy is found, before further flight, repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA).

    (i) Reporting Requirement

    Submit a report (including both positive and negative findings) to Airbus, Customer Services Directorate, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex France, Attn: SDC32 Technical Data and Documentation Services; fax: (+33) 5 61 93 28 06; email: [email protected]; at the applicable time specified in paragraph (i)(1) or (i)(2) of this AD. The report must include the information specified in the inspection report of the applicable service information specified in paragraphs (g)(1) through (g)(4) of this AD.

    (1) For airplanes on which the inspection specified in paragraph (g) of this AD is accomplished on or after the effective date of this AD: Submit the report within 30 days after performing the inspection.

    (2) For airplanes on which the inspection specified in paragraph (g) of this AD is accomplished before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.

    (j) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

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

    (3) Reporting Requirements: A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.

    (4) Required for Compliance (RC): If any service information contains procedures or tests that are identified as RC, those procedures and tests must be done to comply with this AD; any procedures or tests that are not identified as RC are recommended. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. Any substitutions or changes to procedures or tests identified as RC require approval of an AMOC.

    (k) Related Information

    Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2014-0197, dated September 4, 2014, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-8136.

    (l) Material Incorporated by Reference

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

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

    (i) Airbus Service Bulletin A330-53-3202, dated May 6, 2014.

    (ii) Airbus Service Bulletin A330-53-3212, dated May 6, 2014.

    (iii) Airbus Service Bulletin A330-53-3213, dated May 6, 2014.

    (iv) Airbus Service Bulletin A330-53-3214, dated May 6, 2014.

    (v) Airbus Service Bulletin A330-53-3216, dated May 6, 2014.

    (vi) Airbus Service Bulletin A330-53-3217, dated May 6, 2014.

    (vii) Airbus Service Bulletin A330-53-3218, dated May 6, 2014.

    (viii) Airbus Service Bulletin A330-53-3219, dated May 6, 2014.

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

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

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

    Issued in Renton, Washington, on March 31, 2016. Victor Wicklund, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-08366 Filed 4-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-4204; Directorate Identifier 2015-NM-001-AD; Amendment 39-18482; AD 2016-08-06] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Airbus Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes), modified by a particular supplemental type certificate (STC). This AD was prompted by a report of chafing found on the overflow sensor harness of the surge tank, and subsequent contact between the electrical wiring and fuel tank structure. This AD requires a one-time inspection for damage of the outer tank overflow sensor harness, and repair if necessary. This AD also requires modification of the sensor harness. We are issuing this AD to prevent chafing of the harness and subsequent contact between the electrical wiring and fuel tank structure, which could result in electrical arcing and a fuel tank explosion.

    DATES:

    This AD becomes effective May 18, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of May 18, 2016.

    ADDRESSES:

    For service information identified in this final rule, contact Simmonds Precision Products, Inc., A UTC Aerospace Company, 100 Panton Road, Vergennes, VT 05491; phone 802-877-2911; fax 802-877-4444; Internet http://www.utcaerospacesystems.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-4204.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-4204; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Marc Ronell, Aerospace Engineer, Boston Aircraft Certification Office, ANE-150, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7776; fax: 781-238-7170; email: [email protected]

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes), modified by a particular STC. The NPRM published in the Federal Register on October 23, 2015 (80 FR 64371) (“the NPRM”).

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2013-0193, dated August 23, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A300 series airplanes and all Model A300-600 series airplanes.

    The MCAI corresponds to FAA AD 2015-03-03, Amendment 39-18099 (80 FR 11101, March 2, 2015) (“AD 2015-03-03”), which applies to Airbus Model A300 series airplanes and Model A300-600 series airplanes, all serial numbers, except for airplanes modified by STC ST00092BO (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/D41C5AE8E46B4901862574900069E004?OpenDocument&Highlight=st00092bo).

    In AD 2015-03-03, we explained that airplanes that have had the in-tank fuel quantity system modified by STC ST00092BO cannot accomplish the actions required by AD 2015-03-03 by using Airbus Service Bulletin A300-28-6109, Revision 01, dated December 20, 2013.

    We also stated that we were considering separate rulemaking to require the procedures and compliance time specified in UTC Aerospace Systems Service Bulletin 300723-28-03 (V-1577), dated October 10, 2014, for airplanes modified by STC ST00092BO. We have determined that further rulemaking is indeed necessary, and this AD follows from that determination.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-4204.

    Comments

    We gave the public the opportunity to participate in developing this AD. We have considered the comments received. The following presents the comments received on the NPRM and the FAA's response to each comment.

    Request To Extend Proposed Compliance Time

    FedEx asked that we extend the compliance time required by paragraph (g) of the proposed AD from 12 to 30 months. FedEx stated that AD 2015-03-03 required accomplishing the inspection and rerouting within 30 months. FedEx added that, in both AD 2015-03-03 and the NPRM, improper harness routing is the root cause of the issue, and stated that airplanes having STC ST00092BO have equal susceptibility to harness chafing damage as those identified in AD 2015-03-03. FedEx suggested that a 30-month compliance time would still provide an acceptable level of safety. FedEx added that it is expecting to wait four to six months for one of the required materials, and the availability of its installation tool has not been confirmed. FedEx also stated that a longer compliance time would allow it to minimize the operational impact and accomplish the potentially lengthy service information at C-checks.

    We do not agree with the commenter's request to extend the compliance time, because the request is not supported by any analysis or supporting data. This compliance time is shorter to account for the time already elapsed for airplanes having STC ST00092BO. In developing an appropriate compliance time for the actions specified in this AD, we considered the safety implications and normal maintenance schedules for the timely accomplishment of the specified actions. We have determined that the proposed 12-month compliance time will ensure an acceptable level of safety and allow the actions to be done during scheduled maintenance intervals for most affected operators. However, affected operators may request an alternative method of compliance (AMOC) to request an extension of the compliance time under the provisions of paragraph (i) of this AD by submitting data and analysis substantiating that the change would provide an acceptable level of safety. We have not changed this AD in this regard.

    Request To Increase Work Hour Estimate

    FedEx stated that, although the referenced service information specifies 14 work-hours per airplane for accomplishing both actions, the number of work-hours could be closer to 24, especially if a harness is replaced.

    We infer that the commenter is requesting that the work-hour estimate specified in the “Costs of Compliance” section be increased. We partially agree with the request. We provided our best estimate for the work hours based on the information received from the airplane manufacturer and specified in the referenced service information. However, we do not know the number of work-hours it would take to replace a harness, and as stated in the “Costs of Compliance” section, we have received no definitive data that would enable us to provide cost estimates for the on-condition actions. We have not changed this final rule in this regard.

    Conclusion

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

    • Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM.

    Related Service Information Under 1 CFR Part 51

    UTC Aerospace Systems has issued Service Bulletin 300723-28-03 (V-1577), Revision 01, dated July 20, 2015. The service information describes procedures for an inspection for damage of the outer tank of the overflow sensor harness, repair, and modification of the sensor harness. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 65 airplanes of U.S. registry.

    We also estimate that it takes about 3 work-hours per product to comply with the inspection required by this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this inspection required by this AD on U.S. operators to be $16,575, or $255 per product.

    We estimate that it takes about 11 work-hours per product to comply with the modification requirements of this AD. The average labor rate is $85 per work-hour. Required parts cost about $100 per product. Based on these figures, we estimate the cost of this modification on U.S. operators to be $67,275, or $1,035 per product.

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

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

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

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

    1. Is not a “significant regulatory action” under Executive Order 12866;

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

    3. Will not affect intrastate aviation in Alaska; and

    4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-08-06 Airbus: Amendment 39-18482; Docket No. FAA-2015-4204; Directorate Identifier 2015-NM-001-AD. (a) Effective Date

    This AD becomes effective May 18, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to the Airbus airplanes specified in paragraphs (c)(1), (c)(2), (c)(3), and (c)(4) of this AD; certificated in any category; modified by Simmonds Precision Products, Inc., Supplemental Type Certificate (STC) ST00092BO (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/D41C5AE8E46B4901862574900069E004?OpenDocument&Highlight=st00092bo).

    (1) Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes.

    (2) Model A300 B4-605R and B4-622R airplanes.

    (3) Model A300 F4-605R and F4-622R airplanes.

    (4) Model A300 C4-605R Variant F airplanes.

    (d) Subject

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

    (e) Reason

    This AD was prompted by a report of chafing found on the overflow sensor harness of the surge tank, and subsequent contact between the electrical wiring and fuel tank structure. We are issuing this AD to prevent chafing of the harness and subsequent contact between the electrical wiring and fuel tank structure, which could result in electrical arcing and a fuel tank explosion.

    (f) Compliance

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

    (g) One-Time Inspection and Repair

    Within 12 months after the effective date of this AD: Do the actions required by paragraphs (g)(1), (g)(2), and (g)(3) of this AD, in accordance with the Accomplishment Instructions of UTC Aerospace Systems Service Bulletin 300723-28-03 (V-1577), Revision 01, dated July 20, 2015.

    (1) Perform a one-time general visual inspection for damage of the outer tank sensor harness, and if any damage is found on the expando sleeving, before further flight, do a detailed inspection of the underlying wires for exposed conductor wires. If any exposed conductor wire is found, before further flight, replace the outer wing harness assembly.

    (2) Install new brackets and re-route the surge tank overflow sensor harness.

    (3) Modify the harness protection.

    (h) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using UTC Aerospace Systems Service Bulletin 300723-28-03 (V-1577), dated October 10, 2014. This service information is not incorporated by reference in this AD.

    (i) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Boston Aircraft Certification Office (ACO), ANE-150, 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)(1) 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.

    (j) Related Information

    (1) For more information about this AD, contact Marc Ronell, Aerospace Engineer, Boston Aircraft Certification Office, ANE-150, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7776; fax: 781-238-7170; email: [email protected]

    (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.

    (k) Material Incorporated by Reference

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

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

    (i) UTC Aerospace Systems Service Bulletin 300723-28-03 (V-1577), Revision 01, dated July 20, 2015.

    (ii) Reserved.

    (3) For service information identified in this AD, contact Simmonds Precision Products, Inc., A UTC Aerospace Company, 100 Panton Road, Vergennes, VT 05491; phone 802-877-2911; fax 802-877-4444; Internet http://www.utcaerospacesystems.com.

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

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

    Issued in Renton, Washington, on March 30, 2016. Victor Wicklund, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-08352 Filed 4-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2015-3771; Airspace Docket No. 15-ANM-28] Establishment of Class E Airspace, South Bend, WA AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule, correction.

    SUMMARY:

    This action corrects administrative errors in a final rule published in the Federal Register of March 8, 2016, that establishes Class E airspace at Willapa Harbor Heliport, South Bend, WA, by amending the assigned paragraph for rule incorporation within FAA Order 7400.9Z, by correcting format errors in the text header of the airspace legal description, and by correcting inconsistent airport name information in the airspace legal description. These changes do not affect the boundaries or operating requirements of the airspace.

    DATES:

    Effective 0901 UTC, May 26, 2016. 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 7400.9 and publication of conforming amendments.

    FOR FURTHER INFORMATION CONTACT:

    Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; Telephone: (425) 203-4511.

    SUPPLEMENTARY INFORMATION:

    History

    The FAA published a final rule in the Federal Register establishing Class E airspace extending upward from 700 feet above the surface at Willapa Harbor Heliport, South Bend, WA (81 FR 12001 March 8, 2016) Docket No. FAA-2015-3771. Subsequent to publication the FAA identified errors in the assigned paragraph for incorporation, text header format, and airport name information. This action corrects the errors.

    Correction to Final Rule

    Accordingly, pursuant to the authority delegated to me, in the Federal Register of March 8, 2016 (81 FR 12001) FR Doc. 2016-05059, Establishment of Class E airspace, South Bend, WA, is corrected as follows:

    § 71.1 [Amended]

    On page 12002, column 1, line 17, remove “Paragraph 5000 Class D Airspace”, and add in its place “Paragraph 6005. Class E airspace Areas Extending Upward from 700 feet or more Above the Surface of the Earth.”

    On page 12002, column 1, line 19 and 20, remove “ANM WA E5 Willapa Harbor Heliport, South Bend, WA [New]” and add in its place “ANM WA E5 South Bend, WA [New].”

    On page 12002, column 1, lines 27, 28, 34 and 35, after the word `Harbor' add the word `Heliport'.

    Issued in Seattle, Washington, on April 5, 2016. Tracey Johnson, Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2016-08395 Filed 4-12-16; 8:45 am] BILLING CODE 4910-13-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2015-0165; FRL-9944-68-Region 9] Promulgation of Air Quality Implementation Plans; Arizona; Regional Haze Federal Implementation Plan; Reconsideration AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is revising portions of the Arizona Regional Haze Federal Implementation Plan (FIP) applicable to the Coronado Generating Station (Coronado) and the Cholla Power Plant (Cholla). In response to a petition for reconsideration from the Salt River Project Agricultural Improvement and Power District (SRP), the owner and operator of Coronado, we are replacing a plant-wide compliance method with a unit-specific compliance method for determining compliance with the best available retrofit technology (BART) emission limits for nitrogen oxides (NOX) from Units 1 and 2 at Coronado. While the plant-wide limit for NOX emissions from Units 1 and 2 was established as 0.065 lb/MMBtu, we are now setting a unit-specific limit of 0.065 lb/MMBtu for Unit 1 and 0.080 lb/MMBtu for Unit 2. In addition, we are revising the work practice standard in the FIP for Coronado. Finally, we are removing the affirmative defense for malfunctions, which applied to both Coronado and Cholla.

    DATES:

    Effective date: This rule will be effective May 13, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2015-0165. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Vijay Limaye, U.S. EPA, Region 9, Planning Office, Air Division, Air-2, 75 Hawthorne Street, San Francisco, CA 94105; telephone number: (415) 972-3086; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, “we,” “us,” and “our” refer to the EPA.

    Table of Contents I. Definitions II. Background III. Proposed Action IV. Public Comments and EPA Responses V. Final Action VI. Environmental Justice Considerations VII. Statutory and Executive Order Reviews I. Definitions

    For the purpose of this document, we are giving meaning to certain words or initials as follows:

    • The initials AAC mean or refer to the Arizona Administrative Code.

    • The initials ADEQ mean or refer to the Arizona Department of Environmental Quality.

    • The initials AMPD mean or refer to Air Markets Program Data.

    • The words Arizona and State mean the State of Arizona.

    • The initials CAM mean or refer to Compliance Assurance Monitoring.

    • The word Cholla refers to the Cholla Power Plant.

    • The word Coronado refers to the Coronado Generating Station.

    • The initials BART mean or refer to Best Available Retrofit Technology.

    • The initials BOD mean or refer to boiler operating day.

    • The initials CAA mean or refer to the Clean Air Act.

    • The initials CBI mean or refer to Confidential Business Information.

    • The initials EGU mean or refer to Electric Generating Unit.

    • The words EPA, we, us, or our mean or refer to the United States Environmental Protection Agency.

    • The initials FIP mean or refer to Federal Implementation Plan.

    • The initials LNB mean or refer to low-NOX burners.

    • The initials MMBtu mean or refer to million British thermal units.

    • The initials MOT mean or refer to minimum operating temperature.

    • The initials MW mean or refer to megawatts.

    • The initials NAAQS mean or refer to National Ambient Air Quality Standards.

    • The initials NESHAP mean or refer to National Emission Standards for Hazardous Air Pollutants.

    • The initials NSPS mean or refer to Standards of Performance for New Stationary Sources.

    • The initials NO X mean or refer to nitrogen oxides.

    • The initials OFA mean or refer to over fire air.

    • The initials RHR mean or refer to the EPA's Regional Haze Rule.

    • The initials RMB mean or refer to RMB Consulting and Research.

    • The initials S&L mean or refer to Sargent & Lundy.

    • The initials SCR mean or refer to Selective Catalytic Reduction.

    • The initials SIP mean or refer to State Implementation Plan.

    • The initials SRP mean or refer to the Salt River Project Agricultural Improvement and Power District.

    • The initials SSM mean or refer to startup, shutdown, and malfunction.

    • The initials UPL mean or refer to Upper Prediction Limit.

    II . Background A. Summary of Statutory and Regulatory Requirements

    Congress created a program for protecting visibility in the nation's national parks and wilderness areas in 1977 by adding section 169A to the Clean Air Act (CAA). This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from man-made air pollution.” 1 It also directs states to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the CAA requires states to revise their State Implementation Plans (SIPs) to contain such measures as may be necessary to make reasonable progress towards the national visibility goal, including a requirement that certain categories of existing major stationary sources built between 1962 and 1977 procure, install, and operate best available retrofit technology (BART) controls. These sources are referred to as “BART-eligible” sources.2 In the 1990 CAA Amendments, Congress amended the visibility provisions in the CAA to focus attention on the problem of regional haze, which is visibility impairment produced by a multitude of sources and activities located across a broad geographic area.3 We promulgated the Regional Haze Rule (RHR) in 1999, which requires states to develop and implement SIPs to ensure reasonable progress toward improving visibility in mandatory Class I Federal areas 4 by reducing emissions that cause or contribute to regional haze.5 Under the RHR, states are directed to conduct BART determinations for BART-eligible sources that may be anticipated to cause or contribute to any visibility impairment in a Class I area.6

    1 42 U.S.C. 7491(a)(1).

    2 40 CFR 51.301.

    3 See CAA section 169B, 42 U.S.C. 7492.

    4 Areas designated as mandatory Class I Federal areas consist of national parks exceeding 6000 acres, wilderness areas, and national memorial parks exceeding 5000 acres, and all international parks that were in existence on August 7, 1977. 42 U.S.C. 7472(a). When we use the term “Class I area” in this action, we mean a “mandatory Class I Federal area.”

    5 See generally 40 CFR 51.308.

    6 40 CFR 51.308(e).

    B. History of BART Determination for Coronado Generating Station

    The Arizona Department of Environmental Quality (ADEQ) submitted a Regional Haze SIP (“Arizona Regional Haze SIP”) under Section 308 of the RHR to EPA Region 9 on February 28, 2011. The Arizona Regional Haze SIP included BART determinations for NOX, particulate matter (PM), and sulfur dioxide (SO2) for Units 1 and 2 at Coronado. We proposed on July 20, 2012, to approve ADEQ's BART determinations for PM and SO2, but to disapprove its determination for NOX at Coronado.7 In the same notice, we also proposed a FIP that included a NOX BART emission limit of 0.050 lb/MMBtu for Unit 1 and 0.080 lb/MMBtu for Unit 2 based on a 30-boiler-operating-day (BOD) rolling average.8 These limits correspond to the use of Selective Catalytic Reduction (SCR) and low-NOX burners (LNB) with over fire air (OFA) to reduce NOX emissions. We noted that a consent decree between SRP and the EPA required the installation of SCR and compliance with a NOX emission limit of 0.080 lb/MMBtu (30-BOD rolling average) at Coronado Unit 2 by June 1, 2014. In its comments on our proposal, SRP asserted that a NOX emission rate of 0.050 lb/MMBtu was not achievable at either of the Coronado units, due to their startup/shutdown operating profile. In support of this assertion, SRP submitted reports by two consultants, Sargent & Lundy (S&L) and RMB Consulting and Research (RMB), which indicated that the Coronado units could achieve a 30-BOD rolling average emission rate in the range of 0.053 to 0.072 lb/MMBtu per unit.9 The S&L report also examined potential measures to improve the performance of the current SCR design for Unit 2, including installation of a “low load temperature control system,” (i.e., steam reheat) which would allow the SCR system to operate during periods of low load.

    7 77 FR 42834.

    8 Boiler-operating day is defined as “a 24-hour period between 12 midnight and the following midnight during which any fuel is combusted at any time in the unit.” 40 CFR 52.145(f)(2).

    9 77 FR 72555.

    In the final Arizona Regional Haze FIP, we set a plant-wide NOX emission limit for Coronado of 0.065 lb/MMBtu on a 30-BOD rolling average, which SRP could meet by installing a low-load temperature control system on Unit 2 and an SCR system including a low-load temperature control system on Unit 1.10 We structured the compliance determination method for this limit such that, when one of the two units was not operating, its emissions from the preceding 30 boiler operating days would continue to be included in the two-unit average. Please refer to our final rule published on December 5, 2012, for further information on the BART determinations and compliance methodology.

    10Id.

    In addition, we included in the FIP two additional requirements that apply to all affected sources, including Coronado. First, we promulgated a work practice standard that requires that pollution control equipment be designed and capable of operating properly to minimize emissions during all expected operating conditions.11 Second, we incorporated by reference into the FIP certain provisions of the Arizona Administrative Code (AAC) that establish an affirmative defense for excess emissions due to malfunctions.

    11Id. (codified at 40 CFR 52.145(f)(10)).

    C. Petition for Reconsideration and Stay

    We received a petition from SRP on February 4, 2013, requesting partial reconsideration and administrative stay of our final rule under section 307(d)(7)(B) of the CAA and section 705 of the Administrative Procedure Act.12 EPA Region 9 sent a letter on April 9, 2013, to representatives of SRP informing the company that we were granting partial reconsideration of the final rule for the Arizona Regional Haze FIP.13 In particular, we stated that we were granting reconsideration of the compliance method for NOX emissions from Units 1 and 2 at Coronado and that we would issue a notice of proposed rulemaking seeking comment on an alternative compliance methodology. We also noted that, because we initially proposed different NOX emission limits for the two units, we would seek comment on the appropriate emission limit for each of the units.

    12 Petition of Salt River Project Agricultural Improvement and Power District for Partial Reconsideration and Stay of EPA's Final Rule: “Approval, Disapproval and Promulgation of Air Quality Implementation Plans; Arizona; Regional Haze State and Federal Implementation Plans” (February 4, 2013).

    13 Letters from Jared Blumenfeld, EPA, to Norman W. Fichthorn and Aaron Flynn, Hunton and Williams (April 9, 2013).

    III. Proposed Action

    On March 31, 2015, the EPA proposed action on reconsideration of the compliance method and NOX emissions limits for Coronado in the Arizona Regional Haze FIP.14 In particular, we proposed a unit-specific compliance method and separate numerical emission limits for NOX at Coronado Units 1 and 2. We also proposed to revise the work practice requirement that applies to Coronado and to remove the affirmative defense for malfunctions that is currently included in the FIP for Coronado and Cholla.15 Finally, we proposed to determine that these revisions to the FIP would comply with CAA section 110(l).

    14 80 FR 17010 (March 31, 2015).

    15 The Cholla Power Plant (also known as the Cholla Generating Station) is operated by the by Arizona Public Service Company (APS). APS owns Cholla Units 1-3, while PacifiCorp owns Unit 4.

    A. Proposed Compliance Method for Unit-Specific Emission Limits

    We proposed to set a separate rolling 30-BOD lb/MMBtu limit for each of the two Coronado Units, based on the following compliance method:

    The 30-day rolling average NOX emission rate for each unit shall be calculated in accordance with the following procedure: First, sum the total pounds of NOX emitted from the unit during the current boiler operating day and the previous twenty-nine (29) boiler-operating days; second, sum the total heat input to the unit in MMBtu during the current boiler operating day and the previous twenty-nine (29) boiler-operating days; and third, divide the total number of pounds of NOX emitted during the thirty (30) boiler-operating days by the total heat input during the thirty (30) boiler-operating days. A new 30-day rolling average NOX emission rate shall be calculated for each new boiler operating day. Each 30-day rolling average NOX emission rate shall include all emissions that occur during all periods within any boiler operating day, including emissions from startup, shutdown, and malfunction.

    We proposed that this method would replace the plant-wide method promulgated in the final rule at 40 CFR 52.145(f)(5)(B)(ii), but that all other compliance-related requirements, including the monitoring, recordkeeping, and reporting requirements, would remain as promulgated. B. Proposed Emission Limits for Coronado Units 1 and 2 1. Proposed Emission Limit for Coronado Unit 1

    In developing a proposed emission limit for Unit 1, we considered information and analyses provided by SRP, including two reports prepared by S&L and RMB concerning the achievability of various NOX emission limits at Coronado Unit 1, as well as emission data for Unit 1 as reported to the Air Markets Program Data (AMPD) system.16 The 2013 S&L Report presented modeling results intended to predict NOX emissions from Unit 1 under various operating scenarios.17 The 2013 RMB Report applied an “upper prediction limit” (UPL) technique to the results of the S&L report in order to account for “the impact of measurement uncertainty and other process variation.” 18

    16 80 FR 17013-17016.

    17 Letter from Kelly J. Barr, SRP, to Deborah Jordan, EPA (November 18, 2013), Attachment 1, Sargent and Lundy LLC Report SL-011754, Salt River Project Coronado Generating Station Unit 1 SCR NOX Emissions Modeling (November 14, 2013) (“2013 S&L Report”).

    18Id. Attachment 2, Technical Memorandum from RMB to SRP, NOX Limits Compliance Monitoring Consideration on Coronado Unit 1 (October 28, 2013) (“2013 RMB Report”) at 1.

    In our evaluation of the 2013 S&L report, we found that the scenarios examined by S&L were realistic depictions of load profile scenarios historically experienced by the Coronado units. In particular, we found that S&L's scenario 5c, which consists of low-load cycling operations (with SCR and steam reheat assumed) and three cold startups within a 30-day period was a reasonable and conservative representation of expected future operations at Coronado Unit 1, in light of the number of startup events that have historically occurred and SRP's expectation that the Coronado units will experience greater periods of operation in load-following service or nonoperation in the future. Accordingly, we proposed to find that an emission rate of 0.065 lb/MMBtu, which corresponds to S&L's scenario 5c, was a reasonable estimate of average SCR performance for Unit 1.

    We were unable to evaluate fully the RMB Report because it lacked documentation regarding many of its components. In addition, we found that the data set for NOX emissions from Coronado Unit 1 “is much more extensive, represents continuous data collected over a long period of time, and covers a wider range of unit operations” relative to the data sets for which the EPA has previously employed a UPL analysis.19 This better dataset means that use of the UPL analysis method is not necessary and use of the actual data from the unit is more representative. Accordingly, we proposed to find that the use of the UPL method was not appropriate for setting an emission limit for Coronado Unit 1. We also proposed to find that it was not necessary to raise the numerical emission limit in order to provide an additional compliance margin due to the conservative assumptions in the 2013 S&L Report.

    19 80 FR 17016.

    Based on these proposed findings, we proposed to set an emission limit for Coronado Unit 1 of 0.065 lb/MMBtu on a rolling 30-BOD basis. Please refer to our proposal for more information concerning the 2013 S&L and RMB Reports, our evaluation of those reports, and the basis for our proposed emission limit for Unit 1.

    2. Proposed Emission Limit for Coronado Unit 2

    In proposing an emission limit for Coronado Unit 2, we considered information provided by SRP concerning Unit 2's design parameters and the installation of a low-load temperature control system for Unit 2. We found that this information supported SRP's assertion that the emission limit in the Consent Decree of 0.080 lb/MMBtu represents BART for Unit 2. In particular, we noted that “the fact that SRP has already installed a low-load temperature-control system at this unit in order to meet the 0.080 lb/MMBtu limit suggests that a lower limit would not be achievable on a 30-BOD basis.” 20 Therefore, we proposed to set a unit-specific NOX limit for Unit 2 of 0.080 lb/MMBtu on a rolling 30-BOD basis.

    20Id.

    C. Proposed Revision to Work Practice Standard

    In addition to the revisions to the continuously applicable numeric emission limits for each unit, we proposed to revise the work practice standard at 40 CFR 52.145(f)(10) to require continuous operation of pollution control equipment at each unit at all times the unit is in service “in a manner consistent with technological limitations, manufacturer's specifications, and good engineering and good air pollution control practices for minimizing emissions.” 21

    21 Although the preamble referred to this work practice standard specifically in relation to the SCR on Unit 2, the proposed regulatory text applied to all controls devices on both units, which was the intended effect of the proposed revision.

    D. Proposed Removal of Affirmative Defense for Malfunctions

    As noted in our proposal, the Arizona Regional Haze FIP incorporates by reference certain provisions of the ACC that establish an affirmative defense that sources may seek to assert in an enforcement action for violations that result from excess emissions due to malfunctions.22 Subsequent to the EPA's promulgation of the FIP, the United States Court of Appeals for the D.C. Circuit ruled that CAA sections 113 and 304 prohibit the inclusion of affirmative defense provisions in the EPA's regulations imposing emission limits on sources.23 We explained that the logic of the court's decision applies to the promulgation of a FIP, and precludes the EPA from including an affirmative defense provision in a FIP. In addition, we noted that the EPA had proposed to find AAC R18-2-310(B) and AAC R18-2-310(C) substantially inadequate to meet CAA requirements and to issue a SIP call with respect to these provisions (“SSM SIP Call”).24 Therefore, we proposed to remove the affirmative defense for malfunctions from the Arizona Regional Haze FIP.

    22See 40 CFR 52.145(f)(11) (incorporating by reference AAC R-18-2-101, paragraph 65; AAC R18-2-310, sections (A), (B), (D) and (E); and AAC R18-2-310.01).

    23See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).

    24 79 FR 55920, 55947 (September 17, 2014).

    E. Non-Interference With Applicable Requirements

    The final element of our proposed action on reconsideration was an analysis of whether the proposed revisions to the FIP would interfere with any applicable requirement concerning attainment, reasonable further progress, or any other applicable requirement of the CAA.25 We explained that the proposed revision to the FIP would allow for an increase in NOX emissions of 233 tons per year (tpy) compared to the existing FIP, but that this increase represented less than one percent of the projected total NOX emission reductions required under the FIP. We also noted that Coronado is located in an area that is designated as Unclassifiable/Attainment for all of the current National Ambient Air Quality Standards (NAAQS). We proposed to find that a revision to the BART emission limits for NOX would not interfere with attainment or reasonable further progress for any air quality standard. We also proposed to find that the revisions would not interfere with the applicable requirements of the National Emission Standards for Hazardous Air Pollutants (NESHAP), Standards of Performance for New Stationary Sources (NSPS), or Compliance Assurance Monitoring (CAM) requirements. Finally, we explained that, while the proposed revisions would alter the specific emission limits that constitute BART for NOX at Coronado, the effect of the proposed changes on visibility and overall NOX emissions reductions under the FIP would be very small. Therefore, we proposed to find that the proposed revisions would not interfere with any applicable requirement of the CAA.

    25 80 FR 17017-17018.

    IV. Public Comments and EPA Responses

    Our proposed action provided a 45-day public comment period. During this period, we received two comment letters: one from Earthjustice on behalf of National Parks Conservation Association and Sierra Club and one from SRP. In addition, after the close of the comment period, we received a comment letter from the Eastern Arizona Counties Organization (ECO).26 The significant comments and our responses are summarized below.

    26 The ECO letter was dated April 28, 2015, but was not transmitted to the EPA until June 1, 2015.

    A. Comments on Proposed Compliance Method for Unit-Specific Emission Limits

    Comment: SRP expressed support for the proposed compliance method.

    Response: We acknowledge SRP's support for the proposed compliance method. We are finalizing the compliance method as proposed.

    B. Comments on Proposed Emission Limits for Coronado Units 1 and 2 1. General Comments on Proposed Emission Limits for Coronado Units 1 and 2

    Comment: Earthjustice noted that the proposed emission limits are based on an approach that is “wholly dependent on many assumptions” and expressed concern over several elements of the S&L analysis. First, the commenter objected to breaking up a continuous load profile into ill-defined “modes.” Second, the commenter asserted that the EPA should not have accepted S&L's scenarios, as listed in Table 2 of the proposal, specifically citing a lack of support for NOX rates used by S&L for the various modes of operation. The commenter noted that the EPA indicated only that the emission rates are “reasonable and generally consistent” with data reported to the Air Markets Program Data (AMPD). The commenter indicated that it could not find support for some of the assumed rates in the record. Third, Earthjustice stated that there were insufficient data on how many and what combinations of the operation modes can actually occur in a given future 30-day period. Finally, the commenter argued that the EPA (or the permit-issuing authority) should set separate limits for each scenario and asserted that, in the absence of such limits “this bottom-up approach is clearly open for abuse whereby the limit is set by making up a worst case assumption that may or may not occur—or may occur, but with very low frequency—allowing the operator to have a high NOX limit at all times.” Earthjustice further asserted that “inclusion of startup, shutdown, and malfunctions cannot be an excuse to obtain a high emission limit simply by assuming a `worst case' future scenario with several of these mode—regardless of the low frequency of such a scenario.”

    Response: We partially agree with this comment. With regard to the information supporting the assumptions made in the S&L analysis, we have requested and received additional documentation from SRP. The full details are included as a spreadsheet in the docket of this final rule.27 To summarize, SRP examined historical operating data from startup and shutdown events over a period extending from 2009 to 2012 and identified multiple cold starts, warm starts, and shutdowns. The listed modes reflect actual events and operating modes from Unit 1 and 2's history and the emission rates associated with these events.

    27 See spreadsheet “Startup & Shutdown Data.xls.”

    We are cognizant of the commenter's concern that accounting for operating events and conditions that occur relatively infrequently could result in an emission limit that is higher than what would be warranted based solely on normal, steady-state operations. Such a limit provides a larger compliance margin during periods of normal, steady-state operations, when these operating events and conditions are not occurring. However, we disagree with the commenter's argument that separate limits for each mode of operation or load profile are needed. We recognize that the EPA's SSM SIP Policy as of 2015 contemplates the potential use of “. . . special, alternative emission limitations that apply during startup or shutdown if the source cannot meet the otherwise applicable emission limitation . . .” 28 The EPA's SSM SIP Policy as of 2015 reflects the EPA's interpretation of the CAA to allow continuous emission limitations in SIPs that are composed of, for instance, (i) specific numerical limits that apply during most of the operations at the affected source, and (ii) other specific numerical limits that apply during modes of operation such as startup and shutdown. This policy thus contemplates that the “otherwise applicable” numerical limit might be based on steady-state operation, which reflects the best degree of emission control during that mode of operation. The 2015 SSM Policy recommends seven factors that would be relevant to developing an alternative numerical limit for specific modes of operation, if that were appropriate.

    28 80 FR 33840, 33980 (June 11, 2015).

    The commenter is suggesting that the FIP should take this approach for Coronado. We acknowledge that in general this approach would be consistent with our 2015 SSM SIP Policy, but our SSM Policy also contemplates the use of a single appropriately set numerical limit with a relatively long averaging period that is a weighted average of the levels of emission control during steady-state operation, startup, and shutdown. The EPA notes, however, that the averaging period for an emission limitation must be appropriate for the type of SIP provision at issue, e.g., a 30 day averaging period appropriate for purposes of Regional Haze could be inappropriate in an attainment plan for a 24-hour NAAQS. In this instance, Coronado Unit 1 can meet the applicable emission limitation imposed in this FIP, precisely because that limitation accounts for emissions from startup and shutdown. Therefore, an alternative emission limit for startup and shutdown is not necessary or appropriate in this instance.29 Furthermore, the FIP's approach of setting a single continuously applicable BART emission limit that applies during all modes of operation is consistent with the CAA, the RHR and the BART Guidelines. We are not aware of any instance of BART being implemented through separate emission limits that apply to different modes of operation.

    29 Excess emissions from malfunctions events are, by definition, unforeseeable and extremely variable, and therefore generally cannot be specifically accounted for within an emission limit. Sources are required to meet the normally applicable emission limits during malfunctions. Regulators may elect to exercise enforcement discretion in such circumstances, and sources retain the ability to assert any legal or equitable defenses to liability or remedies that they may have in an enforcement proceedings, consistent with CAA sections 113 and 304.

    Comment: In addition to the assumptions noted in the previous comment, Earthjustice also asserted that the assumptions regarding the design and operation of the low-load temperature control system are unsupported. Earthjustice quoted the following passage from the EPA's proposal:

    As described in the S&L report, periods of low load operation generally consist of operation between loads of 138 MW to 270 MW (operation above 270 MW can be considered “high” load). Broadly speaking, the temperature in the SCR system will fall below 599 degrees F during these periods of low load operation, which is the minimum temperature required for effective NOX control. A low load temperature control system increases the temperature at the SCR inlet in order to maintain 599 degrees F, allowing operation of the SCR system during periods of low load. Without this control system, the Coronado Unit 2 SCR system will not operate during periods of low load.

    The commenter asserted that these are “critical and unsupported assumptions.” Specifically, the commenter stated that “the minimum operating temperature (MOT) is a function of SCR catalyst design and parameters such as the sulfur content of the fuel,” and that neither the proposal nor the S&L analysis explained why the MOT is assumed to be 599 degrees F for the SCRs at Units 1 and 2. The commenter noted that the record contains no documentation regarding SCR design from the actual designer of the Unit 2 SCR. The commenter also asserted that the correspondence between MOT and unit load (i.e., that the 599 degrees F MOT corresponds to unit load of 270 MW) is not supported.

    Response: We agree with this comment and have requested and received additional documentation from SRP regarding these issues. Included in the docket is a functional description of the Unit 2 SCR system prepared by Riley Power.30 It indicates that the Unit 2 SCR was designed for a catalyst MOT of 599 degrees F. Also included in the docket is a record of Unit 2's gross load and air preheater temperature readings over an 18-month period from January 2011 to July 2012. As indicated in the spreadsheet and chart attached to this documentation, the majority of these data point to an air preheater temperature of 599 degrees F being achieved at a gross load of 270 MW.

    30 See 1.1.1 SCR Reactor.pdf, Unit 2 Temperature vs. Load PI Data.xlsx, and email from Barbara Sprungl, SRP, to Eugene Chen, EPA, regarding SCR MOT (February 19, 2016).

    2. Comments on Proposed Emission Limits for Coronado Unit 1

    Comment: Earthjustice commented that the proposed emission limit of 0.065 lb/MMBtu was based on Scenario 5c of the S&L analysis, as listed in Table 2 of the proposed rule, which corresponds to a 30-day period of continuous low-load cycling with three cold startup events. The commenter noted that the EPA did not identify a historical 30-day period that corresponded to this scenario. The commenter further asserted that it had “examined Unit 1 hourly operating data for a three year time period, 2012-2014, from AMPD and found no instances of scenario 5c or even 5b—i.e., two or three cold-starts along with significant low load cycling.” The commenter concluded that the highest NOX limit that could be supported by S&L's analysis was Scenario 5a, i.e., 0.0550 lb/MMBtu. Accordingly the commenter requested that the EPA “either fully support Scenario 5c or accept the NOX limit associated with 5a—0.0550 lb/MMBtu.”

    Response: We partially agree with this comment. As we stated in our proposed rule, the particular scenario that the proposed emission limit of 0.065 lb/MMBtu is based upon, Scenario 5c of the S&L analysis, includes unit operating conditions (30 days of continuous low-load cycling and three cold startup events) that have not historically occurred in a single 30 BOD period. We disagree with the commenter's assertion, however, that an emission limit of 0.055 lb/MMBtu would be the appropriate emission limit.

    The commenter noted that it was unable to identify a 30-day period with two or three cold starts along with significant low-load cycling at Unit 1 during the period from 2012-2014. We reviewed operating data beyond the most recent 3-year period and found three 30-day periods with multiple startup events.31 As indicated in AMPD data and the information provided by SRP in its April 24, 2014, letter, Unit 1 has experienced 30-day periods that included two cold starts, as well as one cold start with multiple warm starts (approximately three to six). In general, the total amount of NOX emissions from a warm startup is smaller than a cold startup, in large part due to the longer duration of cold startup events. In this case, the total amount of NOX generated by the actual historical operating scenario of one cold startup and multiple warm startups (approximately three to six) is similar to the total amount that would be generated under Scenario 5c (i.e., three cold startups), and supports the use of three cold startups as a conservative assumption concerning future operations at Unit 1.

    31 See November 2011, April 2011, July 2009 in “Coronado NOX Emission Data (daily).”

    Similarly, the commenter asserted that it had not identified a 30-day period of significant low-load cycling at Unit 1 during the period from 2012-2014. We agree that historical operations at the Coronado units do not reflect 30 consecutive days of low-load cycling operations. As noted in our proposed rule, this assumption is based on SRP's expectation that the Coronado units will experience greater periods of low-load cycling operation in the future, as well as nonoperation, given the expanded role of renewable energy and reduced reliance on fossil fuels in electricity generation. More recent data from the first 9 months of 2015 indicate increased low-load cycling operations and startup events relative to historical patterns.32 At most, however, this represents 3 to 5 days of continuous low-load cycling, not 30. Therefore, 30 days of low-load cycling is likely to be an overestimate of the number of low-load cycling days that will be exhibited in future operations at Unit 1.

    32 See spreadsheet Coronado 2015-09 (hourly).xls.

    In sum, based upon historical operations, particularly the modest amount of low-load cycling operations engaged in by the Coronado units, Scenario 5c (i.e., an operating scenario of three cold startups and 30 days of low-load cycling), represents an upper-end estimate of low-load Unit 1 operations and startups at Unit 1. However, for the reasons described in response to comments from SRP below, we do not agree with Earthjustice that a rolling 30-BOD limit of 0.065 lb/MMBtu for Unit 1, which is based upon Scenario 5c, is insufficiently stringent.

    Comment: SRP asserted that the EPA's statement that an additional compliance margin was not appropriate for Coronado Unit 1, given the conservative nature of the assumptions in the S&L analysis, was inconsistent with the EPA's acknowledgment that S&L's analysis provided a reasonable estimate of average SCR performance. The commenter argued that “an emission limit that reflects `average' SCR performance—even coupled with a 30-day averaging period—does not adequately account for performance on either end of the spectrum—minimum emissions as well as maximum emissions” and that the EPA “must establish a BART emission limit that SRP can comply with at all times (i.e., a limit that is closer to the maximum emissions that can be anticipated).”

    Response: We disagree with this comment. The commenter is correct, in literal terms, that an “average” emission rate of 0.065 lb/MMBtu is not the same as the maximum emission rate, and an emission limit based on an “average” emission rate will not account for all possible expected emission profiles. We do not agree, however, that this demonstrates that the proposed limit does not adequately account for the expected emissions on the upper end of the Unit 1's operating spectrum. Although the proposed limit of 0.065 lb/MMBtu is based upon an average emission rate, it represents the average emission rate of a very conservative operating scenario. As described in previous responses to comments, the specific set of circumstances that form the basis for the proposed limit have not historically occurred at either of the Coronado units.33 Although SRP has provided information indicating that it expects the Coronado units to be engaged in expanded amounts of load-following service,34 it has provided no evidence that the units are likely to continuously operate at low-load cycling.35 Given the conservative nature of these assumptions, we consider the proposed rolling 30-BOD emission limit of 0.065 lb/MMBtu to account adequately for the operations of Unit 1 and, as explained further below, to address sources of uncertainty in SRP's emission analysis that may not have been accounted for in the S&L analysis.

    33 Specifically, three cold startup events and 30 days of low-load cycling operations.

    34See Letter from Kelly Barr, SRP, to Deborah Jordan, EPA (April 28, 2014).

    35 One of the assumptions underlying Scenario 5c is low-load cycling for 30 days, which, for purposes of developing a rolling 30-BOD limit, represents continuous operation at low-load cycling.

    Comment: SRP expressed agreement with the EPA's finding that S&L's analysis produced a reasonable estimate of average SCR performance for Unit 1, but asserted that the S&L report was “inadequate to determine an emission limit that SRP can meet on a continuous basis” because it only addressed variability due to changes in load and “failed to address other factors that can and do affect emission rates.” SRP indicated that it had submitted evidence, including the 2013 RMB Report showing that “the 30-day average emissions rates from comparable units (i.e., same furnace design, comparable size, equipped with SCR) regularly exceed the proposed SRP limit of 0.065 lb/MMbtu.” Specifically, SRP asserted that “the RMB analysis plainly shows that emissions from Unit 1 reasonably should be expected to exceed the proposed 0.065 lb/MMbtu emission limit, even with a 30-day averaging period.” The commenter argued that “failing to address the impact that process and measurement variability can have on the reported emissions would be inconsistent with how EPA has handled the issue in other rulemakings.” Based on the 2013 RMB Report and an additional memo from RMB enclosed with the comment letter,36 the commenter concluded that “a value of 0.080 lb/MMbtu is a reasonable estimate of the lowest achievable BART NOX limit for Unit 1.”

    36 Technical Memorandum from RMB to SRP, Comments on Proposed Revisions to the Regional Haze Federal Implementation Plan for Arizona (May 15, 2015).

    SRP also commented that RMB provided a UPL statistical analysis “merely as a check against its primary analysis, which is analytical assessment of years of available emissions data from comparable units.” The commenter noted that:

    In its analytical assessment, RMB simply determined the 99th percentile value of hundreds of 30-day average emission rates that it was able to calculate from the available emission data. There was no need to rely on a statistical tool such as the UPL to predict what the 99th percentile would be because there are adequate data to calculate that value directly.

    The commenter concluded that the UPL was in fact not appropriate because the 99th percentile emissions rate could be analytically derived.

    Response: We disagree with this comment. There are two separate issues arising from the RMB report: The NOX emission rates achieved by comparable SCR-equipped units 37 and the variability derived from the RMB report (and inclusion of an appropriate compliance margin).38 With regard to the former issue, although similar SCR-equipped units examined by RMB exhibited NOX emission rates that were routinely above 0.065 lb/MMBtu, we disagree that this represents clear evidence that Unit 1 will exceed the proposed 30-BOD limit of 0.065 lb/MMBtu. While the units selected by RMB for review had similar design characteristics to Coronado Unit 1, the analysis did not examine one crucial variable: The design emission rate of the SCR systems. For example, S&L stated that the design target of the Pleasant Prairie Unit 1 SCR was 0.050 lb/MMBtu. By contrast, the stated design target of the Coronado Unit 1 SCR is 0.030 lb/MMBtu.39 Because the SCR on the Coronado Unit 1 is designed to achieve a lower NOX emission rate, we do not consider the fact the actual NOX emission rates of these other SCR-equipped units exceed 0.065 lb/MMBtu to be directly relevant to Coronado Unit 1's ability to meet a rolling 30-BOD limit of 0.065 lb/MMBtu.

    37 See Table 4 in 2013 RMB Report. To summarize, the mean NOX emission rates of the similar SCR-equipped units identified by RMB range from 0.063 to 0.092 lb/MMBtu.

    38 See 2013 RMB Report starting at page 7. To summarize, RMB's analysis asserts that a 15% upward adjustment is appropriate, followed by an additional upward rounding to the next numerical interval, which represents an additional 10%.

    39 See Table 1 in 2013 S&L Report.

    With regard to the variability derived by the RMB report, we agree that measurement and process variability should be accounted for in establishing an emission limit that is achievable, and that incorporates an appropriate compliance margin. The UPL methodology would be one way to account for the possible impact of process and measurement variability. As explained in our proposed rule, however, we do not believe it is necessary or appropriate to use the UPL methodology in this instance, given the size and scope of the data set available. The commenter provided no assertions or arguments that contradict our finding that use of the UPL methodology is inappropriate in this instance. Indeed, the commenter actually acknowledges that use of the UPL is not appropriate in this instance given the available data.

    For similar reasons, we disagree with SRP's suggestion that we should simply have used the 99th percentile emissions rate. As with UPL analyses, the EPA has previously used the 99th percentile (described in some contexts as the 99th confidence level) when establishing emission limits for entire source categories based on emission data set collected from a subset of the sources in each category. In such cases, it is appropriate to take additional measures, such as use of the 99th confidence level, to address concerns about variations not captured or accounted for in the development of the data set. In this instance, by contrast, the proposed 0.065 lb/MMBtu emission limit was developed from emission data from the specific unit in question—either from CEMS data collected from Unit 1 or from SCR vendor estimates developed specifically for Unit 1. Although we recognize that this does not eliminate all concerns regarding variability and uncertainty, we do not consider the measures proposed by the commenter to be appropriate in this instance given the substantially site-specific nature of the data underlying the proposed emission limit. Moreover, neither S&L nor RMB calculated a 99th percentile emission rate for Coronado Unit 1 based on the use of SCR. Accordingly, we do not agree that use of the 99th percentile emissions is necessary to account for process and measurement variability.

    More broadly, while we have not explicitly quantified a portion of the compliance margin specifically to account for process and measurement variability (e.g., the additional 15-25 percent proposed by the commenter), we consider the conservative nature of the operating assumptions underlying the 0.065 lb/MMbtu limit to be sufficient to account for this variability. As noted in previous responses, 0.065 lb/MMbtu is based on operating assumptions that have not historically occurred for either of the Coronado units and that have not been demonstrated to be likely to occur on a regular basis in the future. In addition, 0.065 lb/MMBtu is based on an assumption of a steady-state full load emission rate of 0.040 lb/MMBtu, which is 0.01 lb/MMBtu higher than the performance guarantee of the SCR system of 0.030 lb/MMBtu.40 As noted in the S&L report, this increase above the performance guarantee is intended to account for variations that will occur with actual controlled emissions.41 We consider the conservatism built into this assumption and the previously described assumptions concerning startups and low-load cycling to be sufficient to account for process and measurement variability and provide an adequate compliance margin.

    40 2013 S&L Report Table 1.

    Accordingly, we are finalizing a rolling 30-BOD NOX emission limit of 0.065 lb/MMBtu for Coronado Unit 1, as proposed.

    3. Comments on Proposed Emission Limits for Coronado Unit 2

    Comment: SRP expressed support for the EPA's proposed emission limit of 0.080 lb/MMbtu for Coronado Unit 2. SRP noted that it had already installed SCR and a low-load temperature control system on Unit 2 and that it was unable to meet an emission limit lower than the 0.080 lb/MMbtu limit in the Consent Decree. SRP also expressed support for the proposed work practice standard and additional language addressing operation using the low-load temperature control system.

    Response: We acknowledge SRP's support. We wish to clarify that the revised work practice standard applies to both Coronado units, as does the analogous language in Coronado's existing Title V Permit.42

    42See Specific Condition II.E.2.c, Title V Operating Permit No. 52693, issued December 6, 2011 (“The Permittee shall continuously operate each NOx control at all times the unit it serves is in operation consistent with technological limitations, manufacturer's specifications, and good engineering and maintenance practices for minimizing emissions to the extent practicable” (emphasis added)).

    Comment: Earthjustice stated that it had examined emission data for Unit 2 from the APMD for the period following installation of SCR (i.e., roughly June 1 to December 31, 2014). The commenter provided a table of hourly reported NOX rates for Unit 2, sorted by gross load in the range of 138 to 270 MW, which is the load range in which the low-load temperature control system would be expected to operate. The commenter identified several periods of time in which Unit 2 operated in this load range, but emitted higher NOX rates that indicated that the SCR was not operating in this load range. Based on this information, the commenter asserted that the low-load temperature control system is not operating as intended.

    Further, the commenter asserted that had the low-load temperature control system operated at this load range, the corresponding NOX rates would have been much lower and the resulting 30-day average NOX rates for these periods would also be lower. Earthjustice also stated that, in order to simulate proper low-load temperature control system operation, it had substituted the NOX value of 0.049 lb/MMBtu (the average of 0.039 and 0.059, the lowest and highest NOX rates corresponding to 270 MW) for all loads in the 138-270 MW range and computed the 30-day average NOX rate, including startup, shutdown, and malfunctions (excluding some anomalous data). Based upon the results of this substitution, the commenter asserted that the highest 30-day average using these results was 0.0621 lb/MMBtu, and that the appropriate NOX limit for Unit 2 would be 0.0650 lb/MMBtu, allowing for a reasonable compliance margin.

    Response: We disagree with the commenter's assertion that the noted instances indicate that the low-load temperature control system was not operating as intended. The commenter has accurately identified certain operating hours with load values that fall within a range of 138 to 270 MW. We agree that these instances exhibit NOX emission rates that are consistent with nonoperation of the SCR system. We note, however, that these instances do not correspond to periods of low-load cycling (i.e., periods of extended operation at low-load electricity generation). Rather, the instances identified by the commenter correspond to startup/shutdown events.

    For example, the first instance listed by the commenter (hours 13 to 15 on June 1, 2014) are the final 3 hours of a 15-hour-long startup event, in which Unit 2 starts at zero load, proceeds to full load, and engages in high-load cycling on a continuous basis for the next 5 weeks.43 The 3 hours of low load are part of the process of ramping the boiler up to high load and/or full load, and are not part of a period of actual low-load operation. The other instances identified by the commenter on July 13, July 18, July 22, September 11, September 15, November 13, and November 17, 2014, are similarly all startup/shutdown events. As described in our 2015 proposed rulemaking, the low-load temperature control systems on the Coronado units function during periods of low-load cycling by the boilers. During these periods of low load, the boiler exhaust falls below the 600 degree F minimum operating temperature of the SCR system. By using a portion of the steam generated by the boiler to reheat the exhaust stream up to 600 degrees F, the low-load temperature control system allows operation of the SCR system during periods of low-load cycling. The availability of steam reheat is a crucial element of this system. In a boiler startup event, boiler steam may not be available in sufficient quantity or temperature to allow operation of the temperature control system, because the boiler is starting up.

    43 By comparison, a typical low-load cycling operation would consist of the boiler starting at gross load levels above 270 MW, dropping to below 270 for several hours, and finally returning to load levels above 270 MW.

    More broadly, the commenter raises concerns regarding whether these instances of SCR nonoperation are indicative of the low-load temperature control system being improperly installed or operated. The 2014 AMPD data supplied by the commenter do not appear to contain any periods of operation that correspond to low-load cycling. Therefore, it is not possible to readily evaluate the effectiveness of the low-load temperature control system based on these data alone. In preparing our final action on reconsideration, we have reviewed 2015 AMPD data in order to determine if the low-load temperature control system is being operated during periods of low-load cycling. We have identified several periods of low-load cycling in 2015, and note that the emission rates achieved during these periods are consistent with operation of the SCR system.44 This is consistent with the analyses provided by SRP, which indicate that the low-load temperature control system is intended to operate during periods of low-load cycling.45

    44 See Coronado 2015-09 (hourly).xls. May 24, May 27, May 28, June 8, August 25, September 7, September 11, September 14, and September 15, 2015. NOX emission rates observed during these periods of low-load cycling range from 0.028 to 0.060 lb/MMBtu, which based on the corresponding heat rates are emission rates that indicate operation of the SCR system.

    45 See Letter from Kelly J. Barr, SRP, to Deborah Jordan, EPA (April 28, 2014) page 4 and 2013 S&L Report page 6.

    We also disagree with the commenter's second assertion, that 30-day NOX emission rates for Unit 2 would be lower had the low-load temperature control system operated in these load ranges, and that the appropriate NOX limit for Unit 2 is 0.065 lb/MMBtu. As described in the previous paragraphs, we note that the instances identified by the commenter correspond to startup/shutdown events and not periods of low-load cycling. As a result, we do not consider the information provided to be sufficient to demonstrate that the SCR should have operated during the instances identified by the commenter, and that a lower 0.065 lb/MMBtu limit is achievable by Unit 2.

    In sum, in our 2015 proposed action on reconsideration, we proposed a BART limit of 0.080 lb/MMBtu for Unit 2 based on information and analysis provided by SRP indicating that the Unit 2 SCR system was designed to meet the 2012 Consent Decree emission limit of 0.080 lb/MMBtu, and that SRP had since installed a low-load temperature control system on Unit 2 to meet that emission limit. Because the information provided by the commenter does not alter the data, analysis, or reasoning underlying this proposed limit, we are finalizing a rolling 30-BOD limit of 0.080 lb/MMBtu for Unit 2.

    C. Comments on Proposed Removal of Affirmative Defense for Malfunctions

    Comment: SRP urged the EPA to retain the affirmative defense for excess emissions due to malfunctions as part of the Arizona Regional Haze FIP. The commenter made several arguments in support of its position.

    First, the commenter argued that the court's decision in NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014) does not compel the EPA to remove the affirmative defense provision from the Arizona Regional Haze FIP because the decision applies only to an EPA rulemaking under section 112 and is not binding precedent in the Ninth Circuit. The commenter further argued that by removing the affirmative defense provision, the EPA “ignores its own longstanding policy supporting affirmative defenses in situations beyond the owner's or operator's control, as well as decisions from other Courts of Appeals upholding affirmative defenses.” Referring to the EPA's 1999 SSM Guidance,46 the commenter stated that “[s]ince the early 1980s, EPA has consistently maintained the imposition of penalties for exceedance of an emission standard that is caused by circumstances beyond the owner's or operator's control is not appropriate.” Citing Arizona Public Service Co. v. EPA, 562 F.3d 1116, 1129-30 (10th Cir. 2009), Montana Sulphur & Chemical Co. v. EPA, 666 F.3d 1174, 1192-93 (9th Cir. 2012), and Luminant Generation v. EPA, 714 F.3d 841, 851-53 (5th Cir. 2013), the commenter asserted that the EPA's prior SSM policy, which interpreted the CAA to allow affirmative defense provisions in SIPs, had been upheld by three separate U.S. Courts of Appeals. The commenter further argued that the EPA should not apply the D.C. Circuit decision in NRDC “where controlling precedent from the U.S. Court of Appeals for the Ninth Circuit condones EPA's use of affirmative defenses.”

    46 In particular, the commenter cited EPA's 1999 SSM Guidance (Memorandum to EPA Regional Administrators, Regions I-X from Steven A. Herman and Robert Perciasepe, USEPA, Subject: State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown (September 20, 1999).

    Second, SRP noted that, in the proposed SSM SIP Call, the EPA had only proposed to interpret the CAA to bar affirmative defense type provisions in SIPs and had also proposed to provide states 18 months to submit SIP revisions to remove affirmative defenses for exceedances due to malfunctions. The commenter thus asserted that the EPA should allow the SSM SIP Call rulemaking to proceed, rather than “predetermine the outcome of that rulemaking by removing the affirmative defense from the Arizona Regional Haze FIP far in advance of [the] timeline applicable to the SIP call rulemaking.”

    Third, SRP asserted that “[t]he U.S. Constitution also supports retention of the affirmative defense for malfunctions.” In particular, the commenter noted that the U.S. Supreme Court has held that the Eighth Amendment, including protections against excessive fines and punishments, may apply to government action in a civil context as well as in a criminal context. SRP claimed that significant penalties are not proportional to an offense caused by unavoidable events, such as excess emissions during malfunction events. Furthermore, the commenter argued that “imposing liability for `unavoidable' and therefore innocent conduct would infringe on substantive due process principles under the Fifth Amendment.” SRP asserted that affirmative defense provisions “avoid unjust punishment while at the same time placing on the source the burden of demonstrating that the offense actually was `unavoidable' (and that punishment therefore would be unjust).” Again citing Montana Sulphur, the commenter asserted that providing an affirmative defense is the “minimum protection EPA or the state must provide to avoid infringing constitutional rights.”

    Finally, SRP stated that the affirmative defense “was an integral part of the agreed-upon emission limits established in the [Coronado] Consent Decree” and “was integral to the analyses submitted by SRP in support of its Petition for Reconsideration and the proposed emission limits SRP submitted to EPA for NOX.” The commenter asserted that without such an affirmative defense, “the emission limits identified as feasible and appropriate by S&L and RMB would have undoubtedly been higher.” The commenter argued that “[i]f EPA now removes the affirmative defense from the Arizona Regional Haze FIP for [Coronado], EPA must modify upward the emission limits for NOX to account for that action.”

    Response: We do not agree with SRP's arguments in favor of retaining the affirmative defense for violations due to malfunctions in the Arizona Regional Haze FIP or its assertion that the emission limits should be revised upward in light of removal of the affirmative defense.

    First, we do not agree with the commenter's suggestion that we are free to ignore the NRDC decision in the context of promulgating or revising a FIP. The fact that the decision pertained to a rulemaking by the EPA under section 112 is irrelevant. As explained in our proposal, NRDC turned on an analysis of CAA sections 113 and 304. These provisions apply with equal force to a civil action brought to enforce the provisions of a FIP. The logic of the court's decision thus applies to the promulgation of a FIP, and precludes the EPA from including an affirmative defense provision in a FIP. As explained in the final SSM SIP Call:

    The EPA is revising its interpretation of the CAA with respect to affirmative defenses based upon a reevaluation of the statutory provisions that pertain to enforcement of SIP provisions in light of recent court opinions. Section 113(b) provides courts with explicit jurisdiction to determine liability and to impose remedies of various kinds, including injunctive relief, compliance orders and monetary penalties, in judicial enforcement proceedings. This grant of jurisdiction comes directly from Congress, and the EPA is not authorized to alter or eliminate this jurisdiction under the CAA or any other law. With respect to monetary penalties, CAA section 113(e) explicitly includes the factors that courts and the EPA are required to consider in the event of judicial or administrative enforcement for violations of CAA requirements, including SIP provisions. Because Congress has already given federal courts the jurisdiction to determine what monetary penalties are appropriate in the event of judicial enforcement for a violation of a SIP provision, neither the EPA nor states can alter or eliminate that jurisdiction by superimposing restrictions on that jurisdiction and discretion granted by Congress to the courts. Affirmative defense provisions by their nature purport to limit or eliminate the authority of federal courts to determine liability or to impose remedies through factual considerations that differ from, or are contrary to, the explicit grants of authority in section 113(b) and section 113(e).47

    47 80 FR 33851-33852.

    Therefore, the EPA cannot include any such affirmative defense provision in a FIP.

    The commenter has offered nothing to refute this interpretation of the CAA. Instead, the commenter suggests that the EPA should not apply the NRDC decision in this instance because of “controlling precedent” from the Ninth Circuit, namely the Montana Sulphur decision. As relevant here, that decision involved a challenge by Montana Sulphur to the EPA's imposition of limits on flaring emissions during SSM events. In responding to Montana Sulphur's argument that these limits were infeasible, “the EPA acknowledge[d] that violations are likely inevitable, but relie[d] on the provision of an affirmative defense to compensate for the infeasibility problem.” 48 Significantly, however, Montana Sulphur did not involve a challenge to inclusion of the affirmative defense in a FIP. On the contrary, Montana Sulphur argued that the affirmative defense in the FIP should have been extended to cover injunctive relief in addition to monetary penalties.49 The court rejected this argument and concluded that the EPA had reasonably interpreted the CAA to limit the extent of the affirmative defense as part of imposing continuous limits on emissions.50 However, because no party directly challenged the legal basis for the affirmative defense itself, the court did not have occasion to consider whether the affirmative defense in the FIP contravened CAA sections 113 and 304. Therefore, we do not agree that Montana Sulphur constitutes controlling precedent on the issue of whether the EPA may promulgate an affirmative defense in a FIP.

    48 666 F.3d at 1192-93.

    49 Id. at 1193. The EPA's position in that case was based on the 1999 SSM Policy, which has now been replaced by the EPA's SSM SIP Policy as of 2015. See 80 FR 33977-33982.

    50Id.

    With regard to the other judicial decisions cited by the commenter, the Luminant decision did not involve a FIP at all, but concerned the EPA's evaluation of affirmative defense provisions in a SIP context. In that decision, the court upheld the EPA's disapproval of an affirmative defense provision applicable to violations due to emissions during startup, shutdown and maintenance events, and the EPA's approval of an affirmative defense provision applicable to violations due to emissions during malfunctions. In both instances, the court deferred to the EPA's then current interpretation of the CAA as a reasonable reading of ambiguous provisions. Subsequent to that decision, however, the DC Circuit issued its opinion in NRDC. In our Supplemental Proposal and Final SSM SIP Call, we explained at length why we now consider the court's reasoning in the NRDC decision to be the better reading of the CAA.51 Thus, the EPA has now changed its interpretation of the CAA with respect to the permissibility of affirmative defense provisions in SIPs and has directed the affected state to remove the affirmative defense provision at issue in the Luminant decision from its SIP in the final SSM SIP call.

    51 See 79 FR 55920, 55931-55934 (September 17, 2014) and 80 FR 33856-33857.

    Finally, while the Arizona Public Service case did involve a challenge to an affirmative defense in a FIP, it did not involve a challenge to the statutory basis for such a defense.52 Rather, Arizona Public Service argued that “the EPA must justify inclusion of the affirmative defense with a factual basis for presuming that excess emissions are the fault of APS, and requiring APS to prove otherwise” and that “the EPA offered no defense to this burden-shifting affirmative defense.” 53 The court rejected both of these arguments. However, as with Montana Sulphur, no party argued that the affirmative defense at issue was inconsistent with the enforcement structure of CAA sections 113 and 304, so the Arizona Public Service court did not have occasion to consider this question. Accordingly, the Arizona Public Service decision is not directly on point with regard to whether the EPA is authorized to include an affirmative defense in a FIP. Therefore, none of the cases cited by the commenter compel or persuade the EPA to adopt an interpretation of the CAA with regard to affirmative defenses that differs from the interpretation set forth in the SSM SIP Call Final Rule preamble, as quoted previously.

    52Arizona Public Service Co. v. EPA, 562 F.3d 1116, 1130 (10th Cir. 2009).

    53Id. (internal quotations omitted).

    Second, as noted previously, the EPA has finalized the SSM SIP Call and determined that AAC R18-2-310(B) and AAC R18-2-310(C) are substantially inadequate to meet CAA requirements.54 Arizona must submit a SIP revision to remove or revise these provisions by November 22, 2016. To the extent that the commenter disagrees with the EPA's interpretation of the CAA in the SSM SIP Call, and disagrees with the EPA's application of that interpretation to AAC R18-2-310(B) and AAC R18-2-310(C), that decision may be challenged in the DC Circuit. However, the EPA is not obligated to wait until that deadline for SIP revisions in response to the SSM SIP Call passes to remove these provisions from the Arizona Regional Haze FIP. On the contrary, having made a final determination that affirmative defense provisions are inconsistent with CAA requirements, we believe it is appropriate to expeditiously remove the affirmative defense provision from the Arizona Regional Haze FIP. The FIP is the EPA's own rulemaking, which it is now conforming to the requirements of the CAA.

    54 80 FR 33840, 33971 (June 12, 2015).

    Third, the commenter's constitutional arguments appear to suggest that the existing CAA enforcement provisions are facially unconstitutional. We do not agree. The CAA does not mandate that any penalty be automatically assessed for a violation. Rather, the CAA establishes a maximum civil penalty in section 113(b), but then expressly provides in section 113(e) the criteria that the EPA (in administrative enforcement) or the courts (in judicial enforcement) “shall take into consideration (in addition to other factors as justice may require).” These criteria explicitly include consideration of “good faith efforts to comply.” Whether in administrative enforcement or judicial enforcement, there is a process through which the alleged violator may raise any legal or equitable arguments it may have based on the facts and circumstances of the violation. Thus, the CAA on its face does not mandate the imposition of any penalty automatically, much less one that is per se excessive. Notably, the commenter does not elaborate on how or why it believes the statutory penalty provisions of the CAA are facially unconstitutional. To the extent that the commenter is raising an “as applied” claim of unconstitutionality, any such claim can be raised in the future in the context of a specific application of the statute in an enforcement action.

    Fourth, we acknowledge that, as in the Montana Sulphur example cited by the commenter, the EPA has previously provided affirmative defense provisions as a mechanism to mitigate penalties where a violation was beyond the control of the owner or operator. Contrary to the commenter's suggestion, however, the EPA did not indicate that such provisions were constitutionally mandated. These actions were premised upon the EPA's prior interpretation of the CAA to permit such affirmative defense provisions under very narrow circumstances. More significantly, these actions predated the NRDC decision and, as explained previously, the EPA no longer considers affirmative defense provisions to be consistent with the enforcement provisions of the CAA. Furthermore, the EPA believes that the penalty criteria in section 113(e) perform a similar function to the affirmative defense provisions previously promulgated by the EPA. The commenter does not explain why these explicit statutory factors do not provide sufficient protection from the imposition of allegedly unconstitutionally excessive penalties.

    Finally, we do not agree that removal of the affirmative defense from the Arizona Regional Haze FIP necessitates an increase in the emission limits for NOX for Coronado Units 1 and 2. Neither the 2013 S&L Report nor the 2013 RMB Report indicates that it relied on the existence of such a defense in evaluating what emission limits were achievable at the Coronado units. Moreover, the affirmative defense in the FIP applied only to violations due to emissions during malfunctions, which (among other criteria) must have “resulted from a sudden and unavoidable breakdown of process equipment or air pollution control equipment” and “not stem[med] from any activity or event that could have been foreseen and avoided, or planned.” 55 Nothing in the CAA, the RHR, or the BART Guidelines indicates that BART emissions limits should be set at a level that accommodates all emissions during such unforeseeable events. Finally, we note that, if Coronado were to violate a BART emission limit due to a malfunction, SRP retains the ability to defend itself in an enforcement action and to oppose the imposition of particular remedies or to seek the reduction or elimination of monetary penalties, based on the specific facts and circumstances of the event. To the extent that a violation is the result of a genuine malfunction, the EPA anticipates that the state, citizen suit plaintiffs, and the EPA itself will likely exercise enforcement discretion. To the extent that any party elects to pursue enforcement in such circumstances, however, the CAA already authorizes the courts to determine whether parties should be held responsible for such violations and to impose remedies or penalties only as may be appropriate, given the relevant facts and circumstances. As noted previously, under CAA section 113(e), federal courts are required to consider the enumerated statutory factors when assessing monetary penalties, including “such other factors as justice may require.” Accordingly, we do not consider it necessary or appropriate to revise the BART emission limits due to the removal of the affirmative defense for malfunctions.

    55 AAC R18-2-310(B)(1) and (8).

    It should also be noted that our removal of the affirmative defense from the Arizona Regional Haze FIP does not alter the terms of the Coronado Consent Decree, which includes an affirmative defense applicable only to stipulated penalties for violations of the Consent Decree itself.56 This provision of the Consent Decree affects only whether SRP must pay stipulated penalties under the Consent Decree and does not provide a defense to otherwise applicable CAA penalties.57 Thus, the provision operates as a liquidated damages clause applicable only to the penalties imposed for violations of the Consent Decree and does not purport to alter the jurisdiction of the courts to impose penalties for violations of CAA requirements. Moreover, this provision was sanctioned by the United States District Court for the District Of Arizona, which entered the Consent Decree. Therefore, it does not raise the same concerns about limiting the jurisdiction of courts that are raised by the affirmative defense provision in the FIP.

    56 Consent Decree paragraph 107.

    57See, e.g., id. paragraph 106.

    In sum, we do not agree that the affirmative defense applicable to violations due to malfunctions should be retained in the Arizona Regional Haze FIP or that the emission limits in the FIP should be revised upward in light of the removal of the defense.

    Comment: Earthjustice expressed support for the EPA's proposal to remove the affirmative defense applicable to violations due to malfunctions from the FIP. Citing the NRDC decision relied upon by the EPA in the proposal, the commenter asserted that affirmative defenses for violations due to malfunctions like that previously incorporated into the Arizona Regional Haze FIP are prohibited by the plain language of the CAA. Earthjustice further argued that such affirmatives defenses are unnecessary because courts do not impose penalties for truly unavoidable and unforeseeable violations. Finally, the commenter urged the EPA to finalize its proposal in a separate action to find the affirmative defense for violations due to malfunctions in AAC Code R18-2-310(C) and the similar affirmative defense for violations due to startup and shutdown in AAC R18-2-310(B) substantially inadequate to meet CAA requirements as part of the SSM SIP Call.

    Response: We agree with the commenter for the reasons detailed in the previous response. We note that the EPA has already finalized the SSM SIP Call and determined that AAC R18-2-310(B) and AAC R18-2-310(C) are substantially inadequate to meet CAA requirements.58 Accordingly, the EPA has already directed the state to remove those existing affirmative defense provisions from the SIP, consistent with EPA's action to remove the affirmative defense for violations during malfunctions from the Arizona Regional Haze FIP.

    58 80 FR 33840, 33971 (June 12, 2015).

    D. Other Comments

    Comment: SRP asserted that the EPA should defer to Arizona's NOX BART determination for Coronado, noting that this determination was less stringent than the requirements of the Consent Decree.

    Response: This comment is outside the scope of the proposed action. The EPA is not reconsidering our prior final action disapproving Arizona's NOX BART determinations for Coronado Units 1 and 2. Furthermore, as explained in our proposal, we are not reconsidering our determination that BART for Coronado Units 1 and 2 is an emission limit consistent with the use of SCR, LNB with OFA, and low-load temperature control systems.59 Finally, even if this comment were relevant to this action, we do not agree that Arizona's BART determinations for NOX at Coronado were reasonable or that they complied with the applicable statutory and regulatory requirements, for the reasons set forth in our prior proposed and final actions disapproving those determinations.60

    59 80 FR 17013.

    60 77 FR 42834, 77 FR 72512.

    Comment: ECO commented that the EPA's proposed action on reconsideration was “a critical step toward insuring the economic viability” of Coronado and urged the EPA to finalize the proposal.

    Response: We acknowledge ECO's support for our action on reconsideration.

    V. Final Action

    The EPA is taking final action to revise the Arizona Regional Haze FIP to replace a plant-wide BART compliance method and emission limit for NOX on Units 1 and 2 at Coronado with a single-unit compliance method and emission limit on each of the units. For the reasons described in our proposal and in our responses to comments above, we are finalizing emission limits of 0.065 lb/MMBtu for Unit 1 and 0.080 lb/MMBtu for Unit 2 with compliance based on a rolling 30-BOD basis. This revision constitutes our final action on SRP's petition for reconsideration of the FIP. We are also finalizing our proposals to remove the affirmative defense for malfunctions in the FIP and revise the work practice requirement that applies to Coronado under the FIP.

    We find that this revision will not interfere with any applicable requirement concerning attainment, reasonable further progress, or any other applicable requirement of the CAA. The Arizona Regional Haze FIP, as revised by this action, will result in a significant reduction in emissions compared to current levels (roughly 5,000 tpy). Although this revision will allow a marginal increase in emissions after December 2017 from the Coronado facility as compared to the prior FIP (roughly 233 tpy), the FIP as a whole will still result in an overall NOX reductions from Coronado compared to those currently allowed. In addition, the area where Coronado is located has not been designated nonattainment for any NAAQS. Thus, the revised FIP will ensure a significant reduction in NOX emissions compared to current levels in an area that has not been designated nonattainment for the relevant NAAQS at those current levels. Likewise, for the reasons explained in our proposal and summarized in section III.D, the revision will not interfere with any other applicable CAA requirements.

    VI. Environmental Justice Considerations

    The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations. We expect that Coronado will install the same control technology in order to meet the revised emission limits as would have been necessary to meet the previously finalized limits. As noted previously, this revision to the FIP will allow for an increase in NOX emissions of roughly 233 tpy compared to the original Arizona Regional Haze FIP.61 Although this is a not a trivial amount of emissions, it is relatively small compared to the facility's total emissions. In particular, 233 tpy is equivalent to about three percent of the 7,300 tpy of NOX that the facility is currently allowed to emit under the Coronado Consent Decree.62 Furthermore, total NOX emissions from the facility following full implementation of the FIP will be roughly 2,275 tpy, a decrease of over 5,000 tpy compared to the amount the facility is presently allowed to emit. In sum, while this revision will allow for a marginal increase in emissions compared to the prior FIP, it will still ensure a significant reduction in emissions compared to present levels. Thus, the FIP, as revised by this action, increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population.

    61 80 FR 17010.

    62 Coronado Consent Decree, paragraph 44.

    VII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. This rule applies to only two facilities and is therefore not a rule of general applicability.

    B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA. This rule applies to only two facilities. Therefore, its recordkeeping and reporting provisions do not constitute a “collection of information” as defined under 44 U.S.C. 3502(3) and 5 CFR 1320.3(c).

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities. This action will not impose any requirements on small entities. Firms primarily engaged in the generation, transmission, and/or distribution of electric energy for sale are small if, including affiliates, the total electric output for the preceding fiscal year did not exceed 4 million megawatt hours. Each of the owners of facilities affected by this rule, SRP, APS and PacifiCorp, exceeds this threshold.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments.

    E. Executive Order 13132: Federalism

    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.

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on any Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Thus, Executive Order 13175 does not apply to this action.

    G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    The EPA interprets EO 13045 as applying only to those regulatory actions that concern 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.

    H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards. The EPA is not revising any technical standards or imposing any new technical standards in this action.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations. The results of this evaluation are contained in section VI previously.

    K. Determination Under Section 307(d)

    Pursuant to CAA section 307(d)(1)(B), this action is subject to the requirements of CAA section 307(d), as it revises a FIP under CAA section 110(c).

    L. Congressional Review Act (CRA)

    This rule is exempt from the CRA because it is a rule of particular applicability.

    M. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 13, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Nitrogen oxides, Reporting and recordkeeping requirements, Visibility.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: March 29, 2016. Gina McCarthy, Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart D—Arizona 2. In § 52.145: a. Revise paragraphs (f)(3)(i) and (f)(5)(ii)(A). b. Add paragraph (f)(5)(ii)(B). c. Revise paragraph (f)(10). d. Remove paragraph (f)(11).

    The revisions and addition read as follows:

    § 52.145 Visibility protection.

    (f) * * *

    (3) * * *

    (i) NO X emission limitations. The owner/operator of each coal-fired unit subject to this paragraph (f) shall not emit or cause to be emitted NOX in excess of the following limitations, in pounds per million British thermal units (lb/MMBtu) from any coal-fired unit or group of coal-fired units. Each emission limit shall be based on a rolling 30-boiler-operating-day average, unless otherwise indicated in specific paragraphs.

    Coal fired unit or group of coal-fired units Federal
  • emission
  • limitation
  • Cholla Power Plant Units 2, 3, and 4 0.055 Coronado Generating Station Unit 1 0.065 Coronado Generating Station Unit 2 0.080

    (5) * * *

    (ii) * * *

    (A) Cholla Power Plant. The 30-day rolling average NOX emission rate for the group of coal-fired units identified as Cholla Power Plant, Units 2, 3, and 4 shall be calculated for each calendar day, even if a unit is not in operation on that calendar day, in accordance with the following procedure: Step one, for each unit, sum the hourly pounds of NOX emitted during the current boiler-operating day (or most recent boiler-operating day if the unit is not in operation), and the preceding twenty-nine (29) boiler-operating days, to calculate the total pounds of NOX emitted over the most recent thirty (30) boiler-operating day period for each coal-fired unit; step two, for each unit, sum the hourly heat input, in MMBtu, during the current boiler-operating day (or most recent boiler-operating day if the unit is not in operation), and the preceding twenty-nine (29) boiler-operating days, to calculate the total heat input, in MMBtu, over the most recent thirty (30) boiler-operating day period for each coal-fired unit; step 3, sum together the total pounds of NOX emitted from the group of coal-fired units over each unit's most recent thirty (30) boiler-operating day period (the most recent 30 boiler-operating day periods for different units may be different); step four, sum together the total heat input from the group of coal-fired units over each unit's most recent thirty (30) boiler-operating day period; and step five, divide the total pounds of NOX emitted from step three by the total heat input from step four for each group of coal-fired units, to calculate the 30-day rolling average NOX emission rate for each group of coal-fired units, in pounds of NOX per MMBtu, for each calendar day. Each 30-day rolling average NOX emission rate shall include all emissions and all heat input that occur during all periods within any boiler-operating day, including emissions from startup, shutdown, and malfunction.

    (B) Coronado Generating Station. Compliance with the NOX emission limits for Coronado Unit 1 and Coronado Unit 2 in paragraph (f)(3)(i) of this section shall be determined on a rolling 30 boiler-operating-day basis. The 30-boiler-operating-day rolling NOX emission rate for each unit shall be calculated in accordance with the following procedure: Step one, sum the total pounds of NOX emitted from the unit during the current boiler operating day and the previous twenty-nine (29) boiler operating days; Step two, sum the total heat input to the unit in MMBtu during the current boiler operating day and the previous twenty-nine (29) boiler operating days; Step three, divide the total number of pounds of NOX emitted from that unit during the thirty (30) boiler operating days by the total heat input to the unit during the thirty (30) boiler operating days. A new 30-boiler-operating-day rolling average NOX emission rate shall be calculated for each new boiler operating day. Each 30-boiler-operating-day average NOX emission rate shall include all emissions that occur during all periods within any boiler operating day, including emissions from startup, shutdown, and malfunction.

    (10) Equipment operations—(i) Cholla Power Plant. At all times, including periods of startup, shutdown, and malfunction, the owner or operator of Cholla Power Plant Units 2, 3 and 4 shall, to the extent practicable, maintain and operate each unit including associated air pollution control equipment in a manner consistent with good air pollution control practices for minimizing emissions. Pollution control equipment shall be designed and capable of operating properly to minimize emissions during all expected operating conditions. Determination of whether acceptable operating and maintenance procedures are being used will be based on information available to the Regional Administrator which may include, but is not limited to, monitoring results, review of operating and maintenance procedures, and inspection of each unit.

    (ii) Coronado Generating Station. At all times, including periods of startup, shutdown, and malfunction, the owner or operator of Coronado Generating Station Unit 1 and Unit 2 shall, to the extent practicable, maintain and operate each unit in a manner consistent with good air pollution control practices for minimizing emissions. The owner or operator shall continuously operate pollution control equipment at all times the unit it serves is in operation, and operate pollution control equipment in a manner consistent with technological limitations, manufacturer's specifications, and good engineering and good air pollution control practices for minimizing emissions. Determination of whether acceptable operating and maintenance procedures are being used will be based on information available to the Regional Administrator which may include, but is not limited to, monitoring results, review of operating and maintenance procedures, and inspection of each unit.

    [FR Doc. 2016-07911 Filed 4-12-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2015-0497; FRL-9944-71-Region 6] Approval and Promulgation of Implementation Plans; Texas; Control of Air Pollution From Nitrogen Compounds State Implementation Plan AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving revisions to the State Implementation Plan (SIP) submitted by the State of Texas through the Texas Commission on Environmental Quality (TCEQ) on July 10, 2015. The Texas SIP submission revises 30 Texas Administrative Code (TAC) Chapter 117 rules for control of nitrogen compounds to assist the Dallas-Fort Worth (DFW) moderate nonattainment area (NAA) in attaining the 2008 eight-hour ozone (O3) National Ambient Air Quality Standards (NAAQS).

    DATES:

    This rule is effective on May 13, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2015-0497. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

    FOR FURTHER INFORMATION CONTACT:

    Mr. James E. Grady, (214) 665-6745; [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, “we,” “our,” or “us” each mean “the EPA.”

    I. Background

    The background for this action is discussed in detail in the December 21, 2015 proposal (80 FR 79279). In that document, the EPA proposed to approve the submitted 30 TAC Chapter 117 SIP revision (submitted on July 10, 2015) as assisting the DFW area into attainment of the 2008 8-Hour O3 NAAQS.

    The Proposal and the technical support documents (TSDs) that accompanied the proposed rule provide detailed descriptions of the revisions and the rationale for the proposed decisions. Please see the docket for these and other documents regarding the Proposal. The public comment period for the Proposal closed on January 20, 2016.

    The EPA received one comment email dated December 30, 2015, from TCEQ. The EPA's response to the comment is below.

    II. Response to Comments

    Comment: There is an error on page 79282 of the Federal Register publication in Table 6. The horsepower (hp) rating for turbines under the Capacity column should be “hp rating <10,000 hp” and “hp rating ≥10,000 hp” instead of “hp rating ≤10,000 hp” and “hp rating ≥10,000 hp” as is currently printed.

    Response: The EPA agrees with the mathematical operator change and notes that the adopted rule submitted to the EPA on July 10, 2015 under § 117.405(b) should read as follows:

    (3) Stationary gas turbines:

    (A) with a horsepower (hp) rating of less than 10,000 hp, 0.55 lb/MMBtu;

    and

    (B) with a hp rating of 10,000 hp or greater, 0.15 lb/MMBtu.

    Please refer to Table 1 below for a list of NOX emissions specifications for major sources in newly designated Wise County including a change in response to the above comment.

    Table 1—NOX Emission Limits for 2008 DFW 8-Hour O3 NAA for Major Sources in Wise County Source Type Capacity NOX limit Citation Process Heaters: Max Rated Capacity ≥40 MMBtu/hr 0.10 lb/MMBtu; 117.405(b)(1). An option or 82 ppmv NOX at 3% O2 dry basis 117.405(b)(1). Stationary, Reciprocating Internal Combustion Engines Gas-Fired Rich-Burn 0.50 g/hp-hr 117.405(b)(2)(A). Gas-Fired Lean-Burn White Superior four-cycle units that have been placed into service, modified, reconstructed, or relocated before June 1, 2015 12.0 g/hp-hr 117.405(b)(2)(B)(i)(I). White Superior four-cycle units that have been placed into service, modified, reconstructed, or relocated on or after June 1, 2015 2.0 g/hp-hr 117.405(b)(2)(B)(i)(II). Clark two-cycle units that have been placed into service, modified, reconstructed, or relocated before June 1, 2015 12.0 g/hp-hr 117.405(b)(2)(B)(ii)(I). Clark two-cycle units that have been placed into service, modified, reconstructed, or relocated on or after June 1, 2015 2.0 g/hp-hr 117.405(b)(2)(B)(ii)(II). Fairbanks Morse MEP two-cycle units that have been placed into service, modified, reconstructed, or relocated before June 1, 2015 4.0 g/hp-hr 117.405(b)(2)(B)(iii)(I). Fairbanks Morse MEP two-cycle units that have been placed into service, modified, reconstructed, or relocated on or after June 1, 2015 2.0 g/hp-hr 117.405(b)(2)(B)(iii)(II). All others 2.0 g/hp-hr 117.405(b)(2)(B)(iv). Turbines: Stationary Gas hp rating <10,000 hp 0.55 lb/MMBtu 117.405(b)(3)(A). hp rating ≥ 10,000 hp 0.15 lb/MMBtu 117.405(b)(3)(B). III. Final Action

    With one exception the EPA is approving all modified, repealed and new sections of 30 TAC Chapter 117 submitted by Texas on July 10, 2015 as part of the SIP revision.1 The EPA is not taking action on the revision to 30 TAC 117.9810. The EPA intends to act on this revision in a later action. Table 2 contains a list of the sections of Chapter 117 with adopted subchapters, divisions, and key sections with approved modifications associated with the July 10, 2015 DFW 2008 eight-hour O3 SIP submittal.

    1 The EPA did not make a determination that the TCEQ rules included in the revision would meet the RACT requirements of the CAA § 182(b) for the 2008 O3 NAAQS. Instead, the EPA intended for the rule changes to enhance the SIP by achieving NOX reductions in the DFW NAA. The EPA will make a RACT determination in a separate action.

    Table 2—Description and Sections of 30 TAC, Chapter 117 Approved for Modification Description Section Subchapter A: Definitions § 117.10. Subchapter B, Division 4, DFW Eight-Hour O3 NAA Major Sources §§ 117.400, 117.403, 117.410, 117.423, 117.425, 117.430, 117.435, 117.440, 117.445, 117.450, 117.454, and 117.456. Subchapter C, Division 4, DFW Eight-Hour O3 NAA Utility Electric Generation Sources §§ 117.1303, 117.1310, 117.1325, 117.1335, 117.1340, 117.1345, 117.1350, and 117.1354. Subchapter G, Division 1, General Monitoring and Testing Requirements § 117.8000. Subchapter H, Division 1, Compliance Schedules and Division 2, Compliance Flexibility § 117.9030 and § 117.9130, § 117.9800.

    Table 3 contains a list of the sections of Chapter 117 with adopted subchapters, divisions, and key sections with approved new requirements associated with the July 10, 2015 DFW 2008 eight-hour O3 SIP submittal.

    Table 3—Description and Sections of 30 TAC, Chapter 117 Approved New Requirements Description Section Subchapter B, Division 4, DFW Eight-Hour O3 NAA Major Sources §§ 117.405, 117.452.

    Per TCEQ's request, the following sections listed in Table 4 below will not become a part of the EPA-approved Texas SIP. These rules pertain mainly to the control of carbon monoxide and ammonia emissions, which are not O3 precursors and, therefore, not necessary components of the DFW SIP. The EPA concurs that these rules can remain outside of the SIP.

    Table 4—Description and Sections of 30 TAC, Chapter 117 Not in Texas SIP Description Sections Previously excluded and the TCEQ continues to ask that these remain outside the SIP §§ 117.210(c), 117.225, 117.410(d), 117.425, 117.1110(b), 117.1125, 117.1310(b), and 117.1325. Adopted new and will not be submitted as a SIP revision § 117.405(d).

    Table 5 contains subchapters, divisions, and key sections approved for repeal from the SIP by the TCEQ. The TCEQ adopts the repeal of existing Subchapters B and C in Division 2 as well as sections § 117.9010 and 117.9110 of Subchapter H in Division 1 because compliance dates for sources of NOX subject to these sections have passed and are now obsolete. Furthermore, sources previously subject are now required to comply with more stringent rules in existing Subchapter B and C, Division 4 and in revised sections §§ 117.9030, 117.9130.

    Table 5—Description and Sections of 30 TAC, Chapter 117 Approved for Repeal Description Section Subchapter B, Division 2, DFW O3 NAA Major Sources §§ 117.200, 117.203, 117.205, 117.210, 117.215, 117.223, 117.225, 117.230, 117.235, 117.240, 117.245, 117.252, 117.254, 117.256. Subchapter C, Division 2, DFW O3 NAA Utility Electric Generation Sources §§ 117.1100, 117.1103, 117.1105, 117.1110, 117.1115, 117.1120, 117.1125, 117.1135, 117.1140, 117.1145, 117.1152, 117.1154, 117.1156. Subchapter H, Division 1, Compliance Schedules §§ 117.9010, 117.9110.

    A complete summary along with all non-substantive changes pertaining to reformatting, restructuring, reorganizing, and administrative revisions are referenced in the Technical Support Document (TSD), “30 Texas Administrative Code (TAC) Chapter 117 Control of Air Pollution from Nitrogen Compounds,” a copy of which is posted in the docket of this rule.

    IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the revisions to the Texas regulations as described in the Final Action section above. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the EPA Region 6 office.

    V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

    • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

    • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

    • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

    • Does not contain any unfunded mandate or significantly or uniquely affect small governments, described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

    • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

    • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

    • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

    • Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

    • Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 13, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Reasonably available control technology, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: March 30, 2016. Ron Curry, Regional Administrator, Region 6. PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart SS—Texas 2. In § 52.2270(c), the table titled “EPA Approved Regulations in the Texas SIP” is amended by: a. Removing the entries for Sections 117.200, 117.203, 117.205, 117.210, 117.215, 117.223, 117.225, 117.230, 117.235, 117.240, 117.245, 117.252, 117.254, 117.256, 117.1100, 117.1103, 117.1105, 117.1110, 117.1115, 117.1120, 117.1135, 117.1140, 117.1145, 117.1152, 117.1154, 117.1156, 117.1300, 117.1356, 117.9010, and 117.9110 under Chapter 117—Control of Air Pollution from Nitrogen Compounds; and b. Adding the entries for Sections 117.405 and 117.452 in numerical order under Chapter 117—Control of Air Pollution from Nitrogen Compounds; and c. Revising the entries for Sections 117.10, 117.400, 117.403, 117.410, 117.423, 117.430, 117.435, 117.440, 117.445, 117.450, 117.454, 117.456, 117.1303, 117.1310, 117.1335, 117.1340, 117.1345, 117.1350, 117.1354, 117.8000, 117.9030, 117.9130, and 117.9800 under Chapter 117—Control of Air Pollution from Nitrogen Compounds.

    The amendments read as follows:

    § 52.2270 Identification of plan.

    (c) * * *

    EPA Approved Regulations in the Texas SIP State citation Title/subject State
  • approval/submittal date
  • EPA approval date Explanation
    Chapter 117—Control of Air Pollution from Nitrogen Compounds Subchapter A: Definitions Section 117.10 Definitions 6/3/2015 4/13/2016 [Insert Federal Register citation] Subchapter B: Combustion Control at Major Industrial, Commercial, and Institutional Sources in Ozone Nonattainment Areas *         *         *         *         *         *         * Division 4: Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources Section 117.400 Applicability 6/3/2015 4/13/2016 [Insert Federal Register citation] Section 117.403 Exemptions 6/3/2015 4/13/2016 [Insert Federal Register citation] Section 117.405 Emission Specifications for Reasonably Available Control Technology (RACT) 6/3/2015 4/13/2016 [Insert Federal Register citation] 117.405(d) Not in SIP. Section 117.410 Emission Specifications for Eight-Hour Attainment Demonstration 6/3/2015 4/13/2016 [Insert Federal Register citation] 117.410(d) Not in SIP. Section 117.423 Source Cap 6/3/2015 4/13/2016 [Insert Federal Register citation] Section 117.430 Operating Requirements 6/3/2015 4/13/2016 [Insert Federal Register citation] Section 117.435 Initial Demonstration of Compliance 6/3/2015 4/13/2016 [Insert Federal Register citation] Section 117.440 Continuous Demonstration of Compliance 6/3/2015 4/13/2016 [Insert Federal Register citation] Section 117.445 Notification, Recordkeeping, and Reporting Requirements 6/3/2015 4/13/2016 [Insert Federal Register citation] Section 117.450 Initial Control Plan Procedures 6/3/2015 4/13/2016 [Insert Federal Register citation] Section 117.452 Final Control Plan Procedures for Reasonably Available Control Technology 6/3/2015 4/13/2016 [Insert Federal Register citation] Section 117.454 Final Control Plan Procedures for Attainment Demonstration Emission Specifications 6/3/2015 4/13/2016 [Insert Federal Register citation] Section 117.456 Revision of Final Control Plan 6/3/2015 4/13/2016 [Insert Federal Register citation] Subchapter C: Combustion Control at Major Utility Electric Generation Sources in Ozone Nonattainment Areas *         *         *         *         *         *         * Division 4: Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Utility Electric Generation Sources Section 117.1303 Exemptions 6/3/2015 4/13/2016 [Insert Federal Register citation] Section 117.1310 Emission Specifications for Eight-Hour Attainment Demonstration 6/3/2015 4/13/2016 [Insert Federal Register citation] 117.1310(b) Not in SIP. Section 117.1335 Initial Demonstration of Compliance 6/3/2015 4/13/2016 [Insert Federal Register citation] Section 117.1340 Continuous Demonstration of Compliance 6/3/2015 4/13/2016 [Insert Federal Register citation] Section 117.1345 Notification, Recordkeeping, and Reporting Requirements 6/3/2015 4/13/2016 [Insert Federal Register citation] Section 117.1350 Initial Control Plan Procedures 6/3/2015 4/13/2016 [Insert Federal Register citation] Section 117.1354 Final Control Plan Procedures for Attainment Demonstration Emission Specifications 6/3/2015 4/13/2016 [Insert Federal Register citation] *         *         *         *         *         *         * Subchapter G: General Monitoring and Testing Requirements Division 1: Compliance Stack Testing and Report Requirements Section 117.8000 Stack Testing Requirements 6/3//2015 4/13/2016 [Insert Federal Register citation] *         *         *         *         *         *         * Subchapter H: Administrative Provisions Division 1: Compliance Schedules *         *         *         *         *         *         * Section 117.9030 Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources 6/3/2015 4/13/2016 [Insert Federal Register citation] *         *         *         *         *         *         * Section 117.9130 Compliance Schedule For Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Utility Electric Generation Sources 6/3/2015 4/13/2016 [Insert Federal Register citation] *         *         *         *         *         *         * Division 2: Compliance Flexibility Section 117.9800 Use of Emission Credits For Compliance 6/3/2015 4/13/2016 [Insert Federal Register citation] *         *         *         *         *         *         *
    [FR Doc. 2016-08158 Filed 4-12-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2015-0382; FRL-9944-34] Acequinocyl; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation increases an existing tolerance for residues of acequinocyl in or on “Hop, dried cones.” Arysta LifeScience requested this tolerance increase under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective April 13, 2016. Objections and requests for hearings must be received on or before June 13, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0382, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

    SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me?

    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).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, 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-2015-0382 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 June 13, 2016. 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-2015-0382, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

    Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

    Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets. II. Summary of Petitioned-For Tolerance

    In the Federal Register of September 9, 2015 (80 FR 54257) (FRL-9933-26), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5F8364) by Arysta LifeScience North America Corp., 15401 Weston Pkwy., Suite 150, Cary, NC 27513. The petition requested to amend the tolerance in 40 CFR 180.599 for residues of the insecticide acequinocyl in or on hop, dried cones from 4.0 parts per million (ppm) to 15.0 ppm. That document referenced a summary of the petition prepared by Arysta LifeScience, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

    III. Aggregate Risk Assessment and Determination of Safety

    Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(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. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance 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. . . .”

    Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for acequinocyl including exposure resulting from the tolerance established by this action. EPA's assessment of exposures and risks associated with acequinocyl follows.

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

    The absorption, metabolism, distribution, and excretion (ADME) of acequinocyl are well characterized. Acequinocyl exhibits marginal absorption into the plasma (13-16% for the 10 mg/kg low dose and 8-9% for the 500 mg/kg high dose) and relatively rapid and complete excretion (24 hours for the low dose and 72 hours for the high dose), primarily via the bile and feces (82.6%) in rats. Acequinocyl undergoes nearly complete metabolism to hydrolysis products and a glucuronide conjugate. There was no evidence for selective tissue accumulation or sequestration.

    Across species, durations and routes of exposure (oral and dermal), the primary effects in the acequinocyl hazard database are indicative of toxicity to the liver (hepatocyte vacuolization, brown pigmented cells and perivascular inflammatory cells in liver) and hematopoietic system (hemorrhage, increased clotting factor times and increased platelet counts). In an acute neurotoxicity study, there were no effects up to the limit dose (2,000 mg/kg). In a guideline immunotoxicity study, there were also no effects up to the highest dose tested (45 mg/kg/day). In rats and rabbits, there was no evidence of increased quantitative or qualitative fetal susceptibility with clinical signs and gross necropsy findings seen in maternal animals at similar or lower doses than those producing resorptions. In the rat 2-generation reproductive toxicity study, offspring effects at the mid- and high-doses consisted of swollen body parts, protruding eyes, clinical signs, delays in pupil development, and increased mortality occurring mainly after weaning, however these effects were observed at the same doses as parental effects, and a clear NOAEL was established which is being used in endpoint selection. There were no effects on reproductive parameters. There was no concern for genotoxicity or mutagenicity. There was no evidence of carcinogenic potential in either the rat or mouse carcinogenicity studies, or in the genotoxicity and mutagenicity studies indicating that acequinocyl is “not likely” to be carcinogenic to humans.

    Specific information on the studies received and the nature of the adverse effects caused by acequinocyl as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document titled “May 27, 2015: Acequinocyl. Human Health Assessment Scoping Document in Support of Registration Review” on page 15 in docket ID number EPA-HQ-OPP-2015-0203.

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

    A summary of the toxicological endpoints for acequinocyl used for human risk assessment is discussed in Unit III. B. of the final rule published in the Federal Register of May 2, 2012 (77 FR 25904) (FRL-9346-4).

    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to acequinocyl, EPA considered exposure under the petitioned-for tolerances as well as all existing acequinocyl tolerances in 40 CFR 180.599. EPA assessed dietary exposures from acequinocyl in food as follows:

    i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

    No such effects were identified in the toxicological studies for acequinocyl; therefore, a quantitative acute dietary exposure assessment is unnecessary.

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used 2003-2008 food consumption data from the U.S. Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). Tolerance-level residues, Dietary Exposure Evaluation Model (DEEM) ver. 7.76 default processing factors, and 100 percent crop treated (PCT) data were used in the chronic dietary assessment.

    iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that acequinocyl does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

    iv. Anticipated residue and PCT information. EPA did not use anticipated residue or PCT information in the dietary assessment for acequinocyl. Tolerance level residues and 100 PCT were assumed for all food commodities.

    2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for acequinocyl in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of acequinocyl. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

    Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of acequinocyl for chronic exposure assessments are estimated to be 6.69 parts per billion (ppb) for surface water and 3.6 × 10−3 ppb for ground water.

    Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For the chronic dietary risk assessment, the water concentration of value 6.69 ppb was used to assess the contribution to drinking water.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Acequinocyl is currently registered for the following uses that could result in residential exposures: use on landscape ornamentals in and around residences, businesses, public property, schools, interiorscapes, and other non-production areas. EPA assessed residential exposure using the following assumptions: Adult short-term residential handler dermal and inhalation exposure is anticipated from adults applying acequinocyl to trees and ornamentals with handheld equipment. Adult and youth (6-11 years old) short-term post-application dermal exposure to acequinocyl is anticipated after application to trees and ornamentals. The dermal handler and post-application residential exposures were not included in the short-term aggregate assessment because different effects were seen in the route-specific dermal study compared to the effects seen in the oral studies used to select the oral and inhalation points of departure. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

    4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

    EPA has not found acequinocyl to share a common mechanism of toxicity with any other substances, and acequinocyl does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that acequinocyl does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

    D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10x) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act (FQPA) Safety Factor (SF). In applying this provision, EPA either retains the default value of 10x, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

    2. Prenatal and postnatal sensitivity. In rats and rabbits, there was no evidence of increased quantitative or qualitative fetal susceptibility with clinical signs and gross necropsy findings seen in maternal animals at similar or lower doses than those producing resorptions. In the rat 2-generation reproductive toxicity study, offspring effects at the mid- and high-doses consisted of swollen body parts, protruding eyes, clinical signs, delays in pupil development, and increased mortality occurring mainly after weaning, however these effects were observed at the same doses as parental effects, and a clear NOAEL was established which is being used in endpoint selection. There were no effects on reproductive parameters.

    3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1x. That decision is based on the following findings:

    i. The toxicity database for acequinocyl is complete.

    ii. There is no indication that acequinocyl is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

    iii. There is no evidence that acequinocyl results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies. In the rat two-generation reproductive toxicity study, offspring effects were observed at the same doses as parental effects, and a clear NOAEL was established which is being used in endpoint selection.

    iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to acequinocyl in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children. These assessments will not underestimate the exposure and risks posed by acequinocyl.

    E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

    1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, acequinocyl is not expected to pose an acute risk.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to acequinocyl from food and water will utilize 60% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of acequinocyl is not expected.

    3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Acequinocyl is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to acequinocyl.

    Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in an aggregate MOE of 22,000 for adults 20-49 years old. Because EPA's level of concern for acequinocyl is a MOE of 100 or below, this MOE is not of concern.

    4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

    An intermediate-term adverse effect was identified; however, acequinocyl is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for acequinocyl.

    5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, acequinocyl is not expected to pose a cancer risk to humans.

    6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to acequinocyl residues.

    IV. Other Considerations A. Analytical Enforcement Methodology

    Adequate enforcement methodology (high-performance liquid chromatography methods with tandem mass-spectroscopy detection (HPLC/MS/MS)) is available to enforce the tolerance expression.

    The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected]

    B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

    The Codex has not established an MRL for acequinocyl on hops.

    V. Conclusion

    Therefore, the existing tolerance for residues of acequinocyl, including its metabolites and degradates, in or on “Hop, dried cones” is increased from 4.0 ppm to 15 ppm.

    VI. Statutory and Executive Order Reviews

    This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. 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 Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

    Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

    This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency 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, the Agency 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 et seq.).

    This action does not involve any technical standards that would require Agency 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).

    VII. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: April 7, 2016. Daniel J. Rosenblatt, Acting Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.599, revise the entry for “Hop, dried cones” in the table in paragraph (a) to read as follows:
    § 180.599 Acequinocyl; tolerances for residues.

    (a) * * *

    Commodity Parts per million *    *    *    *    * Hop, dried cones 15 *    *    *    *    *
    [FR Doc. 2016-08512 Filed 4-12-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150916863-6211-02] RIN 0648-XE563 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod in the Bering Sea Subarea of the Bering Sea and Aleutian Islands Management Area AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Temporary rule; modification of a closure.

    SUMMARY:

    NMFS is opening directed fishing for Pacific cod by catcher vessels using trawl gear in the Bering Sea subarea of the Bering Sea and Aleutian Islands Management Area (BSAI). This action is necessary to fully use the B season apportionment of the 2016 total allowable catch (TAC) of Pacific cod allocated to trawl catcher vessels in the BSAI.

    DATES:

    Effective 1200 hrs, Alaska local time (A.l.t.), April 11, 2016, through 2400 hrs, A.l.t., June 10, 2016. Comments must be received at the following address no later than 4:30 p.m., A.l.t., April 28, 2016.

    ADDRESSES:

    You may submit comments on this document, identified by NOAA-NMFS-2015-0118, by any of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0118, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 99802-1668.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    FOR FURTHER INFORMATION CONTACT:

    Josh Keaton, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management 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.

    NMFS closed directed fishing for Pacific cod by catcher vessels using trawl gear in the BSAI under § 679.20(d)(1)(iii) on April 4, 2016 (81 FR 19931, April 6, 2016).

    NMFS has determined that as of April 7, 2016, approximately 1,500 metric tons of Pacific cod remain in the B season apportionment of the 2016 TAC of Pacific cod allocated to trawl catcher vessels in the BSAI. However, NMFS closed directed fishing for Pacific cod in the Aleutian Island subarea of the BSAI under § 679.20(d)(1)(iii) on March 22, 2016 (81 FR 16096, March 25, 2016). Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully use the B season apportionment of the 2016 TAC of Pacific cod allocated to trawl catcher vessels in the BSAI, NMFS is terminating the directed fishing closure for Pacific cod by catcher vessels using trawl gear in the BSAI and is opening directed fishing for Pacific cod by catcher vessels using trawl gear in the Bering Sea subarea of the BSAI. This action does not open directed fishing for Pacific cod by catcher vessels using trawl gear in the Aleutian Island subarea of the BSAI. The Administrator, Alaska Region, NMFS, (Regional Administrator) considered the following factors in reaching this decision: (1) The current catch of Pacific cod by catcher vessels using trawl gear in the BSAI and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery.

    Classification

    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 delay the opening of directed fishing for Pacific cod by catcher vessels using trawl gear in the Bering Sea subarea of the BSAI. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet and processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of April 7, 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.

    Without this inseason adjustment, NMFS could not allow the fishery for Pacific cod by catcher vessels using trawl gear in the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until April 28, 2016.

    This action is required by § 679.25 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: April 8, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-08487 Filed 4-8-16; 4:15 pm] BILLING CODE 3510-22-P
    81 71 Wednesday, April 13, 2016 Proposed Rules DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service 9 CFR Part 381 [Docket No. FSIS-2015-0016] RIN 0583-AD58 Eligibility of Honduras To Export Poultry Products to the United States AGENCY:

    Food Safety and Inspection Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Food Safety and Inspection Service (FSIS) is proposing to add Honduras to the list of countries eligible to export poultry products to the United States. The FSIS review of Honduras' laws, regulations, and inspection system demonstrated that its poultry slaughter inspection system is equivalent to the system FSIS has established under the Poultry Products Inspection Act (PPIA) and its implementing regulations.

    At this time, because Honduras advised FSIS that it intends to export raw poultry products, such as whole carcasses, to the United States, FSIS has only assessed Honduras' poultry slaughter establishments. Thus, should this proposed rule become final, Honduras would only be eligible to export raw poultry products to the United States. Should Honduras express interest in exporting processed poultry product, such as cooked or canned product, to the United States, they would need to request an equivalence determination. Honduras would be required to submit additional records for FSIS to review and conduct an audit as appropriate.

    Under this proposal, slaughtered poultry or parts thereof produced in certified Honduran establishments would be eligible for export to the United States. All such products would be subject to re-inspection at United States ports of entry by FSIS inspectors.

    DATES:

    Submit comments on or before June 13, 2016.

    ADDRESSES:

    FSIS invites interested persons to submit comments on this notice. Comments may be submitted by one of the following methods:

    • Federal eRulemaking Portal: This Web site provides the ability to type short comments directly into the comment field on this Web page or attach a file for lengthier comments. Go to http://www.regulations.gov. Follow the on-line instructions at that site for submitting comments.

    • Mail, including CD-ROMs, etc.: Send to Docket Clerk, U.S. Department of Agriculture, Food Safety and Inspection Service, Docket Clerk, Patriots Plaza 3, 1400 Independence Avenue SW., Mailstop 3782, Room 8-163A, Washington, DC 20250-3700.

    • Hand- or courier-delivered submittals: Deliver to Patriots Plaza 3, 355 E Street SW., Room 8-163A, Washington, DC 20250-3700.

    Instructions: All items submitted by mail or electronic mail must include the Agency name and docket number FSIS-2015-0016. Comments received in response to this docket will be made available for public inspection and posted without change, including any personal information, to http://www.regulations.gov.

    Docket: For access to background documents or comments received, go to the FSIS Docket Room at Patriots Plaza 3, 355 E Street SW., Room 8-164, Washington, DC 20250-3700 between 8:00 a.m. and 4:30 p.m., Monday through Friday.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Daniel Engeljohn, Assistant Administrator, Office of Policy and Program Development; Telephone: (202) 205-0495.

    SUPPLEMENTARY INFORMATION:

    Background

    FSIS is proposing to amend its poultry products inspection regulations to add Honduras to the list of countries eligible to export poultry products to the United States (9 CFR 381.196(b)). Honduras is not currently listed as eligible to export poultry products to the United States. Honduras is currently eligible for the export of raw and processed meat products. If this proposed rule is finalized, establishments in Honduras will be eligible to export raw poultry to the United States. However, because of animal disease restrictions, Animal and Plant Health Inspection Service (APHIS) regulations restrict Honduras from shipping raw poultry product to the U.S. Newcastle disease (ND) is considered by APHIS to exist in all regions of the world except those listed in paragraph (a)(2) of 9 CFR 94.6. Because Honduras is not listed, the APHIS regulation restricts the importation of poultry carcasses, meat, parts or products of carcasses, and eggs (other than hatching eggs) of poultry, game birds, or other birds from Honduras. Honduras has requested APHIS' recognition of their ND status as ND free, and APHIS is conducting a review and evaluation. If APHIS determines that the request can be safely granted, it will state its intent and make its evaluation available for public comment through a document published in the Federal Register.

    Statutory Basis for Proposed Action

    Section 17 of the PPIA (21 U.S.C. 466) prohibits importation into the United States of slaughtered poultry, or parts or products thereof, of any kind unless they are healthful, wholesome, fit for human food, not adulterated, and contain no dye, chemical, preservative, or ingredient that renders them unhealthful, unwholesome, adulterated, or unfit for human food. Under the PPIA and the regulations that implement it, poultry products imported into the United States must be produced under standards for safety, wholesomeness, and labeling accuracy that are equivalent to those of the United States. Section 381.196 of Title 9 of the Code of Federal Regulations (CFR) sets out the procedures by which foreign countries may become eligible to export poultry and poultry products to the United States.

    Section 381.196(a) requires a foreign country's poultry inspection system to include standards equivalent to those of the United States and to provide legal authority for the inspection system and its implementing regulations that is equivalent to that of the United States. Specifically, a country's legal authority and regulations must impose requirements equivalent to those of the United States with respect to: (1) Ante-mortem and post-mortem inspection by, or under the direct supervision of, a veterinarian; (2) official controls by the national government over establishment construction, facilities, and equipment; (3) direct and continuous official supervision of slaughtering of poultry and processing of poultry products by inspectors to ensure that product is not adulterated or misbranded; (4) complete separation of establishments certified to export from those not certified; (5) maintenance of a single standard of inspection and sanitation throughout certified establishments; (6) requirements for sanitation and for sanitary handling of product at establishments certified to export; (7) official controls over condemned product; (8) a Hazard Analysis and Critical Control Point (HACCP) system; and (9) any other requirements found in the PPIA and its implementing regulations (9 CFR 381.196(a)(2)(ii)).

    In addition to a foreign country's legal authority and regulations, the program itself must be equivalent to the United States. Specifically, the program organized and administered by the national government must impose requirements equivalent to those of the United States with respect to: (1) Organizational structure and staffing, so as to ensure uniform enforcement of the requisite laws and regulations in all certified establishments; (2) ultimate control and supervision by the national government over the official activities of employees or licensees; (3) qualified inspectors; (4) enforcement and certification authority; (5) administrative and technical support; (6) inspection, sanitation, quality, species verification, and residue standards; and (7) any other inspection requirements (9 CFR 381.196(a)(2)(i)).

    The foreign country's inspection system must ensure that establishments preparing poultry or poultry products for export to the United States, and their products, comply with requirements equivalent to those of the PPIA and the regulations promulgated by FSIS under the authority of that statute. The foreign country certifies the appropriate establishments as having met the required standards and advises FSIS of those establishments that are certified or removed from certification. Before FSIS will grant approval to the country to export poultry or poultry products to the United States, FSIS must first determine that reliance can be placed on the certification of establishments by the foreign country.

    As indicated above, a foreign country's inspection system must be evaluated by FSIS before eligibility to export poultry products to the United States can be granted. This evaluation consists of two processes: A document review and an on-site review. The document review is an evaluation of the laws, regulations, and other written materials used by the country to effect its inspection program. To help the country in organizing its material, FSIS provides the country with a series of questions asking for detailed information about the country's inspection practices and procedures in six areas or equivalence components: (1) Government Oversight, (2) Statutory Authority and Food Safety Regulations, (3) Sanitation, (4) Hazard Analysis and Critical Control Point (HACCP) Systems, (5) Chemical Residue Testing Programs, and (6) Microbiological Testing Programs. FSIS evaluates the information submitted to verify that the critical points in the six equivalence components are addressed satisfactorily with respect to standards, activities, resources, and enforcement. If the document review is satisfactory, an on-site review is scheduled using a multi-disciplinary team to evaluate all aspects of the country's inspection program. This comprehensive process is described more fully on the FSIS Web site at http://www.fsis.usda.gov/wps/portal/fsis/topics/international-affairs/importing-products/equivalence/equivalence-process-overview.

    The PPIA and implementing regulations require that foreign countries be listed in the CFR as eligible to export poultry products to the United States. FSIS must engage in rulemaking to list a country as eligible. Countries found eligible to export poultry or poultry products to the United States are listed in the poultry inspection regulations at 9 CFR 381.196(b). Once listed, it is the responsibility of the eligible country to certify that establishments meet the requirements to export poultry or poultry products to the United States and to ensure that products from these establishments are safe, wholesome, and not misbranded. To verify that products imported into the United States are safe, wholesome, and properly labeled and packaged, FSIS re-inspects and randomly samples those products before they enter the United States commerce.

    Evaluation of the Honduran Poultry Inspection System

    In 2003, the government of Honduras submitted an initial equivalence application and requested that FSIS conduct a review of Honduras' poultry slaughter inspection system to establish eligibility to export raw poultry products to the United States. FSIS conducted a document review of Honduras' poultry (slaughter) inspection system to determine whether that system was equivalent to that of the United States. Honduras only expressed interest in exporting raw poultry carcasses to the United States, and Honduras does not have a poultry processing establishment. Therefore, FSIS did not obtain documentation for an equivalence review of such a system. FSIS concluded on the basis of the review of Honduras' poultry slaughter system that Honduras' laws and regulations are equivalent to the Poultry Products Inspection Act (PPIA) and implementing regulations.

    Accordingly, FSIS proceeded with an initial on-site audit of Honduras' poultry slaughter system in November 2005, to verify whether Honduras' National Plant and Animal Health Service (SENASA), which is Honduras' central competent authority for food inspection, effectively implemented a poultry inspection system equivalent to that of the United States. The audit resulted in the identification of systemic deficiencies within the following three equivalence components: Government Oversight, Sanitation, and HACCP. The audit found that SENASA did not have adequate government oversight and administrative controls over the inspection system. Also SENASA did not properly stage the necessary number of post-mortem inspectors at the evisceration line. In addition, the audit found during pre-operational sanitation verification inspection, SENASA did not implement procedures to ensure all shackles checked in a 15 foot section were not free of protein residue, fat particles from the previous day's production and dried paint droplets. Likewise, the audit found that SENASA failed to verify whether establishments met HACCP requirements within the system. SENASA took corrective actions to address all of the audit findings, either at the time of the finding, or after the distribution of the Final Audit Report on March 7, 2006. FSIS reviewed the proffered corrective actions and determined that they would be sufficient to prevent re-occurrence.

    FSIS conducted a second on-site audit in June 2009, to verify whether all outstanding issues identified during the previous audit had been resolved. The 2009 audit verified that the implementation of Honduras' corrective actions to the previous audit findings were implemented as described and were working as intended.

    However, the 2009 audit resulted in the identification of systemic deficiencies that had not been identified in the previous audit. The deficiencies related to the equivalence components of Sanitation, HACCP, and Microbiological Testing Programs. Specifically, the 2009 audit found that, with regard to Sanitation, SENASA did not implement procedures to verify adequate sanitation programs. With regard to HACCP, SENASA did not implement procedures to verify establishments met HACCP requirements. Finally, with regard to Microbiological Testing Programs, SENASA did not provide adequate controls over the implementation of laboratory quality systems associated with microbiological testing of product which is intended for export to the U.S.

    After the 2009 on-site audit, Honduras developed a comprehensive corrective action plan to address the findings identified during the 2009 on-site audit. Its corrective actions included implementing new regulations, procedures, measures, and verification activities to ensure uniformity in conducting official inspection activities. FSIS reviewed Honduras' corrective action plan and concluded that Honduras had satisfactorily addressed all audit findings.

    FSIS conducted a third on-site audit in September, 2014, to verify that Honduras had satisfactorily addressed all the findings of the November 2005 and June 2009 audits, and had met the FSIS criteria for all six equivalence components. The evaluation of all documentation provided by Honduras since the 2009 audit (corrective actions taken in response to the 2009 audit findings, regulatory updates, new performance standards, new microbiological laboratory procedures/analyses) supported the decision to perform another audit. The auditor verified that all corrective actions to the 2009 audit findings were implemented as described, and working as intended. There were no new audit findings observed by the auditor during the 2014 on-site audit. The resolution of previous audit findings, and the absence of new audit findings supports the conclusion that the Honduran poultry regulatory system cumulatively achieves a level of protection equivalent to that provided by the United States' poultry inspection system.

    In summary, FSIS has completed the document review, on-site audits, and verification of corrective actions as part of the equivalence process, and all outstanding issues have been resolved. FSIS has tentatively concluded that, as implemented, Honduras' poultry inspection system (slaughter) is equivalent to the United States' poultry inspection system. The full report on Honduras' poultry inspection system (slaughter) can be found on the FSIS Web site at http://www.fsis.usda.gov/wps/portal/fsis/topics/international-affairs/importing-products/eligible-countries-products-foreign-establishments/foreign-audit-reports/foreign-audit-reports.

    At this time, Honduras intends to certify only one establishment as eligible to export product to the U.S. The establishment intends to export raw poultry product. Should this proposed rule become final, the government of Honduras must certify to FSIS those establishments that wish to export poultry products to the United States and that operate in accordance with requirements equivalent to that of the United States (9 CFR 381.196(a)). FSIS will verify that the establishments certified by Honduras' government are meeting the United States requirements through verification audits of Honduras' poultry inspection system.

    Although a foreign country may be listed in FSIS regulations as eligible to export poultry to the United States, the exporting country's products must also comply with all other applicable requirements of the United States. These requirements include restrictions under 9 CFR part 94 of the United States Department of Agriculture's Animal and Plant Health Inspection Service (APHIS) regulations, which also regulate the exportation of poultry products from foreign countries to the United States. At this time, APHIS does not allow Honduras to export raw poultry to the US because Honduras is not recognized by APHIS as a region free of Newcastle disease (ND).

    If this proposed rule is adopted and should APHIS allow Honduras to export raw poultry to the US in the future, all slaughtered poultry, or parts and products thereof, exported to the United States from Honduras will be subject to re-inspection at the U.S. ports of entry for, but not limited to, transportation damage, product and container defects, labeling, proper certification, general condition, and accurate count.

    In addition, FSIS will conduct other types of re-inspection activities, such as taking product samples for laboratory analysis for the detection of drug and chemical residues, pathogens, species, and product composition. Products that pass re-inspection will be stamped with the official United States mark of inspection and allowed to enter United States commerce. If they do not meet United States requirements, they will be refused entry and within 45 days must be exported to the country of origin, destroyed, or converted to animal food (subject to approval of FDA), depending on the violation. The import re-inspection activities can be found on the FSIS Web site at http://www.fsis.usda.gov/wps/portal/fsis/topics/international-affairs/importing-products/phis-import-component/phis-implementation-letter-to-importers/ct_index.

    Executive Order 12866 and 13563, and the Regulatory Flexibility Act

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has been designated a “non-significant” regulatory action under section 3(f) of Executive Order 12866. Accordingly, the proposed rule has not been reviewed by the Office of Management and Budget under Executive Order (E.O.) 12866.

    Expected Cost of the Proposed Rule

    If this proposed rule is finalized, establishments in Honduras will be eligible to export raw poultry to the United States. However, because of animal disease restrictions, APHIS regulations currently prohibit Honduras from immediately shipping raw poultry product to the U.S. Honduras' establishments are currently eligible to export raw and processed beef and veal, raw and processed lamb and mutton, raw and processed goat as well as processed pork. According to data from the government of Honduras, if this proposed rule is finalized, Honduras intends to certify one establishment as eligible to export raw poultry to the United States.1 The expected export volume for this establishment for the first three years is 10,211 Metric Tons (MT). This is expected to increase to 11,231 MT in year four and 12,355 MT in year five.2

    1 Honduras currently has only two establishments certified for meat exports to the United States. Therefore, it is unlikely we will see a significant increase in the number of establishments eligible to export poultry from Honduras.

    2 Source: Correspondence with the Government of Honduras.

    The U.S. poultry industry is one of the most competitive agricultural industries in the world. U.S. establishments slaughtered 17.9 million MT of young chickens in 2014.3 Approximately 3.0 million MT of young chickens slaughtered in the U.S. were exported in 2014. U.S. exports of young chicken comprised 31 percent of the market share among major traders in 2014.4

    3 Source: FSIS's Public Health Information System (PHIS)

    4 USDA Foreign Agricultural Service. (October 2014). Livestock and Poultry: World Markets and Trade. Washington, DC. http://apps.fas.usda.gov/psdonline/circulars/livetock_poultry.pdf.

    The importation of poultry products from Honduras is expected to have a minimal impact on the United States poultry market. Should the proposed rule become final, FSIS estimates Honduras' exports would comprise 0.6 percent (10,211 MT from Honduras compared to a U.S. slaughter volume of 17.9 million MT in 2014) of the United States market annually the first three years. FSIS estimates Honduras' exports would continue to comprise 0.6 percent of the United States market the fourth year and increase 0.7 percent the fifth year. FSIS projects that Honduras would not alter the United States poultry supply and would not have an impact on domestic poultry prices. Therefore, FSIS projects that establishments in the U.S. would not see the negative effects that could come from a decrease in price as a result of increased competition.

    Companies based in Honduras that export to the United States or U.S. companies that export products from Honduras to the U.S. would incur standard costs such as export fees and freight and insurance costs. However, those companies would be willing to bear these costs because of the expected benefits associated with selling their products to the U.S.

    Expected Benefits of the Proposed Rule

    Should this proposed rule become final, we would see an increase in trade between Honduras and the United States. The volume of poultry exported from Honduras is likely to be small and is expected to have little to no effect on U.S. poultry supplies or prices. Therefore, consumers will not benefit from a decrease in price that would result from increased competition. However, Latin American preferences for dark meat compliment American preferences for white meat. Therefore, Honduras' establishments will benefit if they export surplus white meat to the United States. While the export of white meat from Honduras may be minimal compared to overall U.S. consumption, these exports may be significant enough in the long run to have an effect on domestic prices in Honduras.5

    5 Haley, Mildred M. (May 2001). Changing Consumer Demand for Meat: The U.S. Example, 1970-2000. In A. Regmi, Changing Structure of Global Food Consumption and Trade (pp.41-48). (Economic Research Service Outlook No. WRS-01-1) Washington, DC.

    In addition, the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-DR), implemented in 2006, sought to level the playing field and increase trade between the United States and the six CAFTA-DR trading partners, including Honduras.6 If this proposed rule is finalized, we would see a fulfillment of those objectives, benefiting U.S. and Honduras' firms and consumers, especially within the agricultural sector. Providing market access in the U.S. to Honduras' establishments ensures similar access will be given to U.S. firms. American firms have already benefited from CAFTA-DR, with agricultural exports (including wheat, live animals and red meat) to Honduras nearly doubling (97 percent) between 2006 and 2014 and is expected to rise even further in the future.

    6 United States Department of Agriculture. FACT SHEET on Dominican Republic-Central America-United States Free Trade Agreement (Release No. 0237.08). Retrieved on March 18, 2015 from http://www.usda.gov/wps/portal/usda/usdamediafb?contentid=2008/09/0237.xml&printable=true&contentidonly=true.

    Regulatory Flexibility Act Assessment

    The FSIS Administrator has made a preliminary determination that this proposed rule will not have a significant economic impact on a substantial number of small entities in the United States, as defined by the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because, as stated above, the proposed rule would not have a significant effect on an U.S. establishments.

    Paperwork Reduction Act

    No new paperwork requirements are associated with this proposed rule. Foreign countries wanting to export poultry and poultry products to the United States are required to provide information to FSIS certifying that their inspection system provides standards equivalent to those of the United States, and that the legal authority for the system and their implementing regulations are equivalent to those of the United States. FSIS provided Honduras with questionnaires asking for detailed information about the country's inspection practices and procedures to assist that country in organizing its materials. This information collection was approved under OMB number 0583-0153. The proposed rule contains no other paperwork requirements.

    E-Government Act

    FSIS and the U.S. Department of Agriculture (USDA) are committed to achieving the purposes of the E-Government Act (44 U.S.C. 3601, et seq.) by, among other things, promoting the use of the Internet and other information technologies and providing increased opportunities for citizen access to Government information and services, and for other purposes.

    Additional Public Notification

    Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this Federal Register publication and officially notify the World Trade Organization's Committee on Sanitary and Phytosanitary Measures (WTO/SPS Committee) in Geneva, Switzerland, of this proposal on-line through the FSIS Web page located at: http://www.fsis.usda.gov/federal-register.

    FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to our constituents and stakeholders. The Update is available on the FSIS Web page. Through the Web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an email subscription service which provides automatic and customized access to selected food safety news and information. This service is available at: http://www.fsis.usda.gov/subscribe. Options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.

    USDA Non-Discrimination Statement

    No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.

    How To File a Complaint of Discrimination

    To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at http://www.ocio.usda.gov/sites/default/files/docs/2012/Complain_combined_6_8_12.pdf, or write a letter signed by you or your authorized representative.

    Send your completed complaint form or letter to USDA by mail, fax, or email:

    Mail: U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW., Washington, DC 20250-9410.

    Fax: (202) 690-7442.

    Email: [email protected]

    Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

    List of Subjects in 9 CFR Part 381

    Imported products.

    For the reasons set out in the preamble, FSIS is proposing to amend 9 CFR part 381 as follows:

    PART 381—POULTRY PRODUCTS INSPECTION REGULATIONS 1. The authority citation for part 381 continues to read as follows: Authority:

    7 U.S.C. 138f, 450; 21 U.S.C. 451-470; 7 CFR 2.7, 2.18, 2.53.

    § 381.196 [Amended]
    2. Section 381.196 is amended in paragraph (b) by adding “Honduras” in alphabetical order to the list of countries. Done at Washington, DC, on: April 8, 2016. Alfred V. Almanza, Acting Administrator.
    [FR Doc. 2016-08478 Filed 4-12-16; 8:45 am] BILLING CODE 3410-DM-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2014-0571; Directorate Identifier 2014-NM-059-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

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

    SUMMARY:

    We are revising an earlier proposed airworthiness directive (AD) for certain The Boeing Company Model 767-200, -300, and -400ER series airplanes. The NPRM proposed an inspection for plastic couplings, corrective actions if necessary, and installation of new spray shrouds. The NPRM was prompted by a report of the engine indication and crew alerting system (EICAS) display system malfunctioning during flight. This action revises the NPRM by adding, for certain airplanes, a general visual inspection of the spray shield and related investigative and corrective actions if necessary. We are proposing this supplemental NPRM (SNPRM) to prevent an uncontrolled water leak from a defective potable water system coupling, which could cause the main equipment center (MEC) line replaceable units (LRUs) to become wet, resulting in an electrical short and potential loss of several functions essential for safe flight. Since these actions impose an additional burden over that proposed in the NPRM, we are reopening the comment period to allow the public the chance to comment on these proposed changes.

    DATES:

    We must receive comments on this SNPRM by May 31, 2016.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0571.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0571; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Stanley Chen, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6585; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2014-0571; Directorate Identifier 2014-NM-059-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

    Discussion

    We issued an NPRM to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 767-200, -300, and -400ER series airplanes. The NPRM published in the Federal Register on August 14, 2014 (79 FR 47597) (“the NPRM”). The NPRM proposed to require an inspection for plastic couplings, corrective actions if necessary, and installation of new spray shrouds.

    Actions Since Previous NPRM Was Issued

    Since we issued the NPRM, Boeing has issued Boeing Alert Service Bulletin 767-38A0073, Revision 2, dated August 10, 2015. Boeing Alert Service Bulletin 767-38A0073, Revision 2, dated August 10, 2015, adds, for certain airplanes, a general visual inspection of the spray shield to determine if it has two slits and is installed correctly, and related investigative and corrective actions if necessary. We added a new paragraph (h) to require this inspection and, if necessary, related investigative and corrective actions as applicable. We redesignated subsequent paragraphs accordingly.

    Comments

    We gave the public the opportunity to comment on the NPRM. The following presents the comments received on the NPRM and the FAA's response to each comment.

    Effect of Winglets on Accomplishment of the Proposed Actions

    Aviation Partners Boeing (APB) stated that the installation of winglets per supplemental type certificate ST01920SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/59027f43b9a7486e86257b1d006591ee/$FILE/ST01920SE.pdf) does not affect the accomplishment of the manufacturer's service instructions. APB also expressed that it would provide supporting data to the FAA upon request.

    We agree with the commenter that STC ST01920SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/59027f43b9a7486e86257b1d006591ee/$FILE/ST01920SE.pdf) does not affect the accomplishment of the manufacturer's service instructions. Therefore, the installation of STC ST01920SE does not affect the ability to accomplish the actions required by this proposed AD. We have not changed this proposed AD in this regard.

    Request To Include Latest Service Information

    Boeing requested that we revise the NPRM to refer to Boeing Service Bulletin 767-38A0073, Revision 1, dated November 5, 2014, and to note that no more work is necessary on any airplanes on which the actions specified in Boeing Alert Service Bulletin 767-38A0073, dated November 12, 2013, have been done (the NPRM referred to Boeing Alert Service Bulletin 767-38A0073, dated November 12, 2013, as the appropriate source of service information). Boeing also stated that the revision includes some minor changes in the Work Instructions and corrects some part numbers in the Material Information section. Boeing noted that the revised service information includes the statement “no more work is necessary on any airplane(s) changed in accordance with the original issue of the service bulletin.”

    We agree to include the latest revision of the service information in this proposed AD. As stated previously, Boeing Alert Service Bulletin 767-38A0073, Revision 2, dated August 10, 2015, has been issued. This proposed AD would require that all actions be completed using Boeing Alert Service Bulletin 767-38A0073, Revision 2, dated August 10, 2015. We have also added a new paragraph (k) to this proposed AD to give credit for actions done before a certain date using Boeing Alert Service Bulletin 767- 38A0073, dated November 12, 2013, and Boeing Service Bulletin 767-38A0073, Revision 1, dated November 5, 2014. We have redesignated subsequent paragraphs accordingly.

    Request To Revise the Inspection and Installation Paragraph (Paragraph (g) of the NPRM)

    Boeing requested that we revise the “Inspection and Installation” paragraph (paragraph (g) of the proposed AD (in the NPRM)) to delete the following sentence:

    Do all applicable corrective actions within the compliance time identified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-38A0073, dated November 12, 2013, except as required by paragraph (h) of this AD.”

    Boeing claimed that the sentence is repetitive and that it adds no new information beyond what is captured in the first two sentences of paragraph (g) of the proposed AD (in the NPRM).

    We do not agree to revise this proposed AD to delete the sentence as requested because the sentence is necessary to indicate the compliance time for the corrective actions. We have made no changes to this proposed AD in this regard.

    Request To Revise Costs of Compliance Section by Adding Leak Test Costs

    Boeing requested that we revise the Costs of Compliance section of the NPRM to account for the hours to perform the leak test on each airplane. Boeing explained that Boeing Alert Service Bulletin 767-38A0073, dated November 12, 2013, contains estimates of 3 work-hours for the leak test. Boeing reasoned that the hours to perform the leak test following any coupling replacement were not included in the cost estimate.

    We agree to revise the Costs of Compliance section of this SNPRM to add the costs to perform a leak test, for the reason indicated by Boeing. We have included this cost in the “Related investigative actions” row of the on-condition costs.

    Request To Revise Parts Installation Prohibition Paragraph

    United Airlines (UA) requested that we revise the “Parts Installation Prohibition” paragraph (paragraph (i) of the proposed AD (in the NPRM)) to refer to part number (P/N) “CA620 series” or P/N “CA625 series,” instead of simply “P/N CA620” or “P/N CA625.” UA explained that calling out P/N CA620 or P/N CA625 comprises only a portion of the part number.

    We agree to revise the “Parts Installation Prohibition” paragraph (paragraph (j) of this proposed AD, which was referred to as paragraph (i) of the proposed AD (in the NPRM)) to specify P/N “CA620 series” or P/N “CA625 series,” for the reason explained by UA. A complete part number is formatted to provide information; e.g., for “CA620XX-YYZZ,” XX identifies the size, YY identifies the material, and ZZ is a color code; this proposed AD would prohibit P/N CA620 and P/N CA625 regardless of size, material, and color.

    Request To Allow Use of Airplane Maintenance Manual (AMM)

    UA explained that Boeing Alert Service Bulletin 767-38A0073, dated November 12, 2013, refers to Subject 38-10-00, Potable Water System, of Chapter 38, Water/Waste, of the Boeing 767 AMM as an accepted procedure to do a potable water system leak test on any replaced coupling and repair any leak. UA stated that the leak test on “any replaced coupling” in the potable water supply lines is only a portion of the referenced procedure, yet Subject 38-10-00, Potable Water System, of Chapter 38, Water/Waste, of the Boeing 767 AMM encompasses the water system as a whole. Steps (a) through (c) of paragraph G.9 in AMM 38-10-10 apply to the fill, drain, and overflow port, whereas step (d) applies to the water lines that supply lavatory and galley water. UA interpreted this requirement as referencing the steps in the Subject 38-10-00, Potable Water System, of Chapter 38, Water/Waste, of the Boeing 767 AMM that apply to any replaced coupling for compliance purposes.

    We agree to clarify. Only the steps in the AMM for a leak test that apply to any replaced coupling must be done for compliance purposes. We have made no changes to this proposed AD in this regard.

    Request To Include an Alternative Leak Test or Protection

    UA requested that we revise paragraph (g) of the proposed AD (in the NPRM) to add an alternative leak test, or protection of the electronics during the leak test. UA stated that Boeing Alert Service Bulletin 767-38A0073, dated November 12, 2013, specifies a potable water supply line leak test in the electronic/equipment (EE) bay after repairs, which may produce leaks into the EE. UA advised providing protection from water spray in the event of a leak, since the shrouds may not have been installed at this point. When a sleeve is installed over the O-rings, sometimes the sleeve tends to “walk” or jam unevenly over the O-rings, causing an unexpected leak.

    We disagree with the commenters request to add an alternative leak test, or to require protection of the electronics during the leak test. However, we agree that operators can take optional protective measures to cover or shield their equipment against water spray during the leak test. We have added note 1 to paragraph (g) of this proposed AD for clarification. We have determined that an alternative leak test is not necessary, and no requirement for electronics protection is needed. If present after the couplings have been swapped, the leak should be detected soon after the leak test is initiated, so the potential amount of water leaked would be minimal. If the sleeve was not properly installed, it should be obvious because the coupling could not be fully closed without the secondary retention strap secured. If damage to the O-ring occurred when the sleeve was installed, the leakage would be minimal. The electronics are contained inside panels and racks, and minimal water leakage should not be a problem. Only an undetected leak for extended duration, or major leaks spraying water all over, would be problematic since the racks/panels are not waterproof.

    FAA's Determination

    We are proposing this SNPRM because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs. Certain changes described above expand the scope of the NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this SNPRM.

    Proposed Requirements of This SNPRM

    This SNPRM would require accomplishing the actions specified in the service information described previously. For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0571.

    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.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin 767-38A0073, Revision 2, dated August 10, 2015. The service information describes procedures for a general visual inspection for plastic potable water couplings and applicable related investigative and corrective actions; installation of new spray shrouds; and a general visual inspection of the spray shield to determine if it has two slits, and is installed correctly, and applicable related investigative and corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this proposed AD affects 136 airplanes of U.S. registry.

    We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S.
  • operators
  • Part 1—General visual inspection (Groups 1 through 3, 9, and 11, Configuration 1; Groups 4-8, 10, and 12-13) (136 airplanes) Up to 3 work-hours × $85 per hour = $255 $0 Up to $255 Up to $34,680. Part 2—General visual inspection (Group 9, Configuration 1, and Group 10) (32 airplanes) 2 work-hours × $85 per hour = $170 0 $170 $5,440. Part 3—Install spray shrouds 3 work-hours × $85 per hour = $255 330 $585 $79,560. Part 4—General visual inspection (Groups 1 through 3, 9, and 11, Configuration 2) (30 airplanes) 2 work-hours × $85 per hour = $170 0 $170 $5,100.

    We estimate the following costs to do any necessary on-condition actions that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these actions:

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Related investigative actions 3 work-hours × $85 per hour = $255 $0 $255. Corrective actions Up to 1 work-hour × $85 per hour = $85 53 Up to $138.

    According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

    (3) Will not affect intrastate aviation in Alaska, and

    (4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): The Boeing Company: Docket No. FAA-2014-0571; Directorate Identifier 2014-NM-059-AD. (a) Comments Due Date

    We must receive comments by May 31, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 767-200, -300, and -400ER series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 767-38A0073, Revision 2, dated August 10, 2015.

    (d) Subject

    Air Transport Association (ATA) of America Code 38, Water/Waste.

    (e) Unsafe Condition

    This AD was prompted by a report of the engine indication and crew alerting system (EICAS) display system malfunctioning during flight. We are issuing this AD to prevent an uncontrolled water leak from a defective potable water system coupling, which could cause the main equipment center (MEC) line replaceable units (LRUs) to become wet, resulting in an electrical short and potential loss of several functions essential for safe flight.

    (f) Compliance

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

    (g) Inspection of Couplings and Installation of Spray Shrouds

    For Groups 1 through 3, Configuration 1 airplanes; Groups 4 through 8 airplanes; Group 9, Configuration 1 airplanes; Group 10 airplanes; Group 11, Configuration 1 airplanes; and Groups 12 and 13 airplanes; as identified in Boeing Alert Service Bulletin 767-38A0073, Revision 2, dated August 10, 2015: At the applicable times identified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-38A0073, Revision 2, dated August 10, 2015, except as required by paragraph (i) of this AD, do a general visual inspection for plastic potable water couplings, do all applicable related investigative and corrective actions, and install new spray shrouds (including a new hose assembly, as applicable), in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767-38A0073, Revision 2, dated August 10, 2015. Do all applicable related investigative and corrective actions within the applicable compliance time identified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-38A0073, Revision 2, dated August 10, 2015, except as required by paragraph (i) of this AD.

    Note 1 to paragraph (g) of this AD:

    Operators can take optional protective measures to cover or shield their equipment against water spray when performing the Potable Water System Leakage Test, as specified in Boeing Alert Service Bulletin 767-38A0073, Revision 2, dated August 10, 2015.

    (h) Inspection of Spray Shield and Corrective Actions

    For Groups 1 through 3, 9, and 11, Configuration 2 airplanes; as identified in Boeing Alert Service Bulletin 767-38A0073, Revision 2, dated August 10, 2015: Within 72 months after the effective date of this AD, do a general visual inspection of the spray shield to determine if it has two slits and is installed correctly, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767-38A0073, Revision 2, dated August 10, 2015. Do all applicable related investigative and corrective actions before further flight.

    (i) Exception to the Service Information

    Where paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-38A0073, Revision 2, dated August 10, 2015, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (j) Parts Installation Prohibition

    As of the effective date of this AD, no person may install any plastic potable water coupling having part number (P/N) CA620 series or P/N CA625 series on any airplane.

    (k) Credit for Previous Actions

    For Groups 4 through 8, 10, 12, and 13 airplanes, as identified in Boeing Alert Service Bulletin 767-38A0073, Revision 2, dated August 10, 2015: 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 Alert Service Bulletin 767-38A0073, dated November 12, 2013; or Boeing Service Bulletin 767-38A0073, Revision 1, dated November 5, 2014; which are not incorporated by reference in this AD.

    (l) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (m)(1) of this AD. Information may be emailed to: [email protected]

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (3) An AMOC that provides an acceptable level of safety may be used for any repair, 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 (l)(4)(i) and (l)(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. 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.

    (m) Related Information

    (1) For more information about this AD, contact Stanley Chen, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6585; fax: 425-917-6590; email: [email protected]

    (2) For service information identified in this AD, Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on March 30, 2016. Victor Wicklund, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-08365 Filed 4-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-5467; Directorate Identifier 2015-NM-186-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Defense and Space S.A. (Formerly Known as Construcciones Aeronauticas, S.A.) Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for all Airbus Defense and Space S.A. Model CN-235, CN-235-200, and CN-235-300 airplanes. This proposed AD was prompted by reports of main landing gear (MLG) access doors detaching from the airplane as a result of excessive vibration and metal fatigue in the attach fittings. This proposed AD would require modification of the MLG access door by replacing seals in the MLG fairing and, for certain airplanes, adding an additional bolt. We are proposing this AD to prevent a fracture in the MLG access door associated with excessive vibration and metal fatigue in the attach fittings. This condition could lead to MLG access door detachment and consequent impact of flight controls, resulting in reduced control of an airplane.

    DATES:

    We must receive comments on this proposed AD by May 31, 2016.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact EADS-CASA, Military Transport Aircraft Division (MTAD), Integrated Customer Services (ICS), Technical Services, Avenida de Aragón 404, 28022 Madrid, Spain; telephone +34 91 585 55 84; fax +34 91 585 55 05; email [email protected]; Internet http://www.eads.net. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5467; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1112; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-5467; Directorate Identifier 2015-NM-186-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued Airworthiness Directive 2015-0225, dated November 18, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Defense and Space S.A. Model CN-235, CN-235-200, and CN-235-300 airplanes. The MCAI states:

    Occurrences of Main Landing Gear (MLG) Access Door detachment were reported. Subsequent investigation determined that the detachments of the MLG Door occurred during maneuvers performed at high speed and with high sideslip angle on airplanes not modified in accordance with the instructions EADS-CASA [European Aeronautic Defence and Space Company-Construcciones Aeronauticas, S.A]. Service Bulletins (SBs) SB-235-52-0061 and SB-235-52-0068. Based on the investigation results, it was determined that the fracture mechanism was associated with excessive deformation that could produce scooping in the forward edge combined with an excessive vibration of the MLG Access Door.

    This condition, if not corrected, could lead to MLG Access Door detachment and consequent impact of flight controls, resulting in reduced control of an airplane and possible injury of persons on the ground.

    To address this potential unsafe condition, EADS-CASA issued SB-235-52-0061 and SB-235-52-0068 to provide modification instructions.

    For the reasons described above, this [EASA] AD requires modification of MLG Access Doors and prohibits installation of a MLG Access Door sealing part number (P/N) CAN36032R. This AD also prohibits installation of not modified MLG Access Doors.

    Required actions include modification of the MLG access door by replacing seals in the MLG fairing and, for certain airplanes, adding an additional bolt. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5467.

    Related Service Information Under 1 CFR Part 51

    EADS CASA has issued the following service information:

    • EADS CASA Service Bulletin SB-235-52-0061, Revision 1, dated October 24, 2014. The service information describes procedures for modifying the MLG access door by installing an additional bolt.

    • EADS CASA Service Bulletin SB-235-52-0068, Revision 2, dated January 9, 2015. The service information describes procedures for modifying the MLG access door by installing an improved fairing seal.

    This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

    Costs of Compliance

    We estimate that this proposed AD affects 30 airplanes of U.S. registry.

    We also estimate that it will take up to 60 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost up to $12,684 per product. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $533,520, or up to $17,784 per product.

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

    1. Is not a “significant regulatory action” under Executive Order 12866;

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

    3. Will not affect intrastate aviation in Alaska; and

    4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Airbus Defense and Space S.A. (Formerly Known as Construcciones Aeronauticas, S.A.): Docket No. FAA-2016-5467; Directorate Identifier 2015-NM-186-AD. (a) Comments Due Date

    We must receive comments by May 31, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Airbus Defense and Space S.A. (formerly known as Construcciones Aeronauticas, S.A.) Model CN-235, CN 235-200, and CN 235-300 airplanes, certificated in any category, all manufacturer serial numbers.

    (d) Subject

    Air Transport Association (ATA) of America Code 52, Doors.

    (e) Reason

    This AD was prompted by reports of main landing gear (MLG) access doors detaching from the airplane as a result of excessive vibration and metal fatigue in the attach fittings. This condition could lead to MLG access door detachment and consequent impact of flight controls, resulting in reduced control of an airplane.

    (f) Compliance

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

    (g) Modifications

    (1) For all airplanes: Within 12 months after the effective date of this AD, modify each MLG access door by installing an improved fairing seal, in accordance with the Accomplishment Instructions of EADS CASA Service Bulletin SB-235-52-0068, Revision 2, dated January 9, 2015.

    (2) For all Model CN-235-200 airplanes: Concurrently with the action required in paragraph (g)(1) of this AD, modify each affected MLG access door by installing an additional bolt, in accordance with the Accomplishment Instructions of EADS CASA Service Bulletin SB-235-52-0061, Revision 1, dated October 24, 2014.

    (h) Credit for Previous Actions

    (1) This paragraph provides credit for actions required by paragraph (g)(1) of this AD, if those actions were performed before the effective date of this AD, using EADS CASA Service Bulletin SB-235-52-0068, Revision 1, dated October 24, 2014; or SB-235-52-0068, dated July 15, 2002; which are not incorporated by reference in this AD.

    (2) This paragraph provides credit for actions required by paragraph (g)(2) of this AD, if those actions were performed before the effective date of this AD using EADS CASA Service Bulletin SB-235-52-0061, dated October 31, 1996, which is not incorporated by reference in this AD.

    (i) Parts Installation Prohibition and Limitation

    (1) For airplanes modified as specified in paragraphs (g)(1) and (g)(2) of this AD, as applicable, before the effective date of this AD: As of the effective date of this AD, no person may install a seal having part number CAN36032R on any MLG access door.

    (2) For airplanes not modified as specified in paragraphs (g)(1) and (g)(2) of this AD, as applicable, before the effective date of this AD: After accomplishing the actions required by paragraphs (g)(1) and (g)(2) of this AD, as applicable, no person may install a seal having part number CAN36032R on any MLG access door.

    (3) As of the effective date of this AD, installation of a MLG access door on an airplane is allowed, provided the MLG access door is modified as required by paragraphs (g)(1) and (g)(2) of this AD, as applicable.

    (j) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1112; fax 425-227-1149. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

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

    (k) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2015-0225, dated November 18, 2015, for related information. You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5467.

    (2) For service information identified in this AD, contact EADS-CASA, Military Transport Aircraft Division (MTAD), Integrated Customer Services (ICS), Technical Services, Avenida de Aragón 404, 28022 Madrid, Spain; telephone +34 91 585 55 84; fax +34 91 585 55 05; email [email protected]; Internet http://www.eads.net. You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on March 31, 2016. Victor Wicklund, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-08350 Filed 4-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-5392; Directorate Identifier 2016-NE-10-AD] RIN 2120-AA64 Airworthiness Directives; International Aero Engines AG Turbofan Engines AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain International Aero Engines AG (IAE) V2500-A1 turbofan engines. This proposed AD was prompted by a report of an uncontainment caused by a high-pressure turbine (HPT) seal release. This proposed AD would require removing from service the HPT No. 4 bearing front seal seat, part numbers (P/Ns) 2A0066, 2A1998, and 2A3432, and the HPT No. 4 bearing rear seal seat, P/Ns 2A0067, 2A1999, and 2A3433, and replacement with parts eligible for installation. This proposed AD would also require inspecting the HPT rotor and stator assembly, and, if necessary, their replacement with parts that are eligible for installation. We are proposing this AD to prevent failure of the HPT stage 2 seals, uncontained HPT seal release, damage to the engine, and damage to the airplane.

    DATES:

    We must receive comments on this proposed AD by June 13, 2016.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact International Aero Engines AG, 400 Main Street, East Hartford, CT 06118; phone: 800-565-0140; email: [email protected]; Internet: http://fleetcare.pw.utc.com. You may view this service information at the FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5392; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Brian Kierstead, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7772; fax: 781-238-7199; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-5392; Directorate Identifier 2016-NE-10-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this NPRM.

    Discussion

    We received a report of an uncontained part release which breached an HPT case. This event resulted in an engine fire and exhaust gas temperature over-limit readings. Subsequent investigation has shown that the preliminary cause was blockage at the No. 4 bearing seal seat anti-weep grooves. Blockage of these grooves could allow oil to escape the No. 4 compartment and migrate to the HPT. Oil migration to the HPT could result in oil ignition and could eventually result in a stage 2 air-seal fracture. This condition, if not corrected, could result in failure of the HPT stage 2 seals, uncontained HPT seal release, damage to the engine, and damage to the airplane.

    Related Service Information Under 1 CFR Part 51

    We reviewed IAE Non-Modification Service Bulletin (NMSB) V2500-ENG-72-0670, dated March 14, 2016. The NMSB identifies affected engines and provides guidance for replacing the No. 4 bearing front and rear seal seats and for inspecting the HPT rotor and stator assembly. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

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

    Proposed AD Requirements

    This proposed AD would require removing from service the HPT No. 4 bearing front seal seat, P/Ns 2A0066, 2A1998, and 2A3432, and the HPT No. 4 bearing rear seal seat, P/Ns 2A0067, 2A1999, and 2A3433, and replacement with parts eligible for installation. This proposed AD would also require inspecting the HPT rotor and stator assembly, and, if necessary, their replacement with parts that are eligible for installation.

    Costs of Compliance

    We estimate that this proposed AD affects 0 engines installed on airplanes of U.S. registry. We estimate that it would take about 10 hours to perform the seal seat replacement. The average labor rate is $85 per hour. We also estimate the cost of No. 4 bearing front and rear seal seats to be $13,562. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $0.

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

    (3) Will not affect intrastate aviation in Alaska 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.

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): International Aero Engines AG: Docket No. FAA-2016-5392; Directorate Identifier 2016-NE-10-AD. (a) Comments Due Date

    We must receive comments by June 13, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to International Aero Engines AG (IAE) V2500-A1 turbofan engines with serial numbers listed in Effectivity Data of IAE Non-Modification Service Bulletin (NMSB) V2500-ENG-72-0670, dated March 14, 2016.

    (d) Unsafe Condition

    This AD was prompted by a report of an uncontainment caused by a high-pressure turbine (HPT) seal release. We are issuing this AD to prevent failure of the HPT stage 2 seals, uncontained HPT seal release, damage to the engine, and damage to the airplane.

    (e) Compliance

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

    (1) Prior to accumulating 500 cycles in service after the effective date of this AD,

    (i) Remove from service No. 4 bearing front seal seat part numbers (P/Ns) 2A0066, 2A1998, 2A3432; and No. 4 bearing rear seal seat, P/Ns 2A0067, 2A1999, 2A3433, and replace with parts eligible for installation.

    (ii) Inspect the HPT rotor and stator assembly. Use the Accomplishment Instruction, Part C, Section 1.B of IAE NMSB V2500-ENG-72-0670, dated March 14, 2016 to perform the inspection.

    (2) For any parts that fail the inspection required by paragraph (e)(1)(ii) of this AD, before further flight, remove and replace with parts eligible for installation.

    (f) Alternative Methods of Compliance (AMOCs)

    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: [email protected]

    (g) Related Information

    (1) For more information about this AD, contact Brian Kierstead, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7772; fax: 781-238-7199; email: [email protected]

    (2) IAE NMSB V2500-ENG-72-0670, dated March 14, 2016, can be obtained from IAE, using the contact information in paragraph (g)(3) of this proposed AD.

    (3) For service information identified in this proposed AD, contact International Aero Engines AG, 400 Main Street, East Hartford, CT 06118; phone: 800-565-0140; email: [email protected]; Internet: http://fleetcare.pw.utc.com.

    (4) You may view this service information at the FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

    Issued in Burlington, Massachusetts, on April 8, 2016. Colleen M. D'Alessandro, Manager, Engine & Propeller Directorate, Aircraft Certification Service.
    [FR Doc. 2016-08462 Filed 4-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-5466; Directorate Identifier 2015-NM-183-AD] RIN 2120-AA64 Airworthiness Directives; Dassault Aviation AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Dassault Aviation Model FALCON 7X airplanes. This proposed AD was prompted by investigation results that determined that a certain thickness of the fuel tank panels is insufficient to meet the certification requirements. This proposed AD would require inspecting the thickness of the fuel tank panels, and repair if necessary. We are proposing this AD to detect and correct improper thickness of the fuel tank panels. Improper thickness increases the risk of damaging and puncturing a fuel tank wall panel as a result of a high energy lightning strike, which could lead to loss of electrical power and/or other essential functions, possibly resulting in reduced control of the airplane or ignition of a fuel tank.

    DATES:

    We must receive comments on this proposed AD by May 31, 2016.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; Internet http://www.dassaultfalcon.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5466; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-5466; Directorate Identifier 2015-NM-183-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0216, dated October 28, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Dassault Aviation Model FALCON 7X airplanes. The MCAI states:

    Several rear fuselage tanks of the Falcon 7X were assembled on the production line with a lateral panel, which had been excessively chemically-milled in some areas. Investigation results determined that the remaining thickness is insufficient to meet the certification requirements. Dassault Aviation identified the individual aeroplanes that are potentially affected by this production deficiency. Due to this reduced thickness, the risk of damaging and puncturing a fuel tank wall panel as a result of a high energy lightning strike is increased.

    This condition, if not detected and corrected, could lead to loss of electrical power and/or other essential functions, possibly resulting in reduced control of the aeroplane or ignition of a fuel tank.

    To address this potential unsafe condition, Dassault Aviation published Service Bulletin (SB) 7X-245 to provide inspection and repair instructions.

    For the reasons described above, this [EASA] AD requires a one-time inspection of the fuel tank wall panels and, depending on findings, accomplishment of a repair.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5466.

    Related Service Information Under 1 CFR Part 51

    Dassault Aviation has issued Service Bulletin 7X-245, dated June 8, 2015. The service information describes procedures for measuring fuel tank panel thickness, and repair if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.

    Costs of Compliance

    We estimate that this proposed AD affects 6 airplanes of U.S. registry.

    We also estimate that it would take about 8 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $0 per product. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $4,080, or $680 per product.

    In addition, we estimate that any necessary follow-on actions would take about 20 work-hours and require parts costing $2,244, for a cost of $3,944 per product. We have no way of determining the number of aircraft that might need this action.

    According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

    1. Is not a “significant regulatory action” under Executive Order 12866;

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

    3. Will not affect intrastate aviation in Alaska; and

    4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Dassault Aviation: Docket No. FAA-2016-5466; Directorate Identifier 2015-NM-183-AD. (a) Comments Due Date

    We must receive comments by May 31, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Dassault Aviation Model FALCON 7X airplanes, certificated in any category, serial numbers (S/Ns) 17 through 21 inclusive, S/Ns 86 through 90 inclusive, S/Ns 115 through 119 inclusive, S/Ns 129 through 138 inclusive, and S/N 155.

    (d) Subject

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

    (e) Reason

    This AD was prompted by investigation results that determined that a certain thickness of the fuel tank panels is insufficient to meet the certification requirements. We are issuing this AD to detect and correct improper thickness of the fuel tank panels. Improper thickness increases the risk of damaging and puncturing a fuel tank wall panel as a result of a high energy lightning strike, which could lead to loss of electrical power and/or other essential functions, possibly resulting in reduced control of the airplane or ignition of a fuel tank.

    (f) Compliance

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

    (g) Inspection and Repair

    Within 99 months or 4,100 flight cycles, whichever occurs first since the date of first delivery of the airplane, inspect for improper thickness of the fuel tank panels, in accordance with the Accomplishment Instructions of Dassault Service Bulletin 7X-245, dated June 8, 2015. If improper thickness is found during this inspection, before further flight, repair the fuel tank panels, in accordance with the Accomplishment Instructions of Dassault Service Bulletin 7X-245, dated June 8, 2015.

    (h) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

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

    (i) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0216, dated October 28, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5466.

    (2) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; Internet http://www.dassaultfalcon.com. You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on March 30, 2016. Victor Wicklund, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-08351 Filed 4-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2015-7487; Airspace Docket No. 15-ACE-7] Proposed Amendment of Class D and E Airspace and Revocation of Class E Airspace; Sioux City, IA AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to amend Class D and E airspace at Sioux Gateway/Col. Bud Day Field, Sioux City, IA, due to the decommissioning of the Gateway non-directional radio beacon (NDB) and cancellation of the NDB approaches at the airport. The Class E airspace area designated as an extension would be removed as it is no longer needed. Advances in Global Positioning System (GPS) capabilities have made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at the airport. This action also would update the geographic coordinates for Martin Field, NE, to coincide with the FAA's aeronautical database.

    DATES:

    Comments must be received on or before May 31, 2016.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366-9826. You must identify FAA Docket No. FAA-2015-7487; Airspace Docket No. 15-ACE-7, at the beginning of your comments. You may also submit comments through the Internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5527), is on the ground floor of the building at the above address.

    FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC, 20591; telephone: 202-267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.9Z at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

    FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class D and E airspace at Sioux Gateway/Col. Bud Day Field, Sioux City, IA.

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2015-7487/Airspace Docket No. 15-ACE-7.” The postcard will be date/time stamped and returned to the commenter.

    Availability of NPRMs

    An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

    Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

    Availability and Summary of Documents Proposed for Incorporation by Reference

    This document would amend FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E surface area airspace and Class E airspace extending upward from 700 feet above the surface at Sioux Gateway/Col. Bud Day Field, Sioux City, IA. The Class E airspace area designated as an extension also would be removed as the extension is no longer needed. Decommissioning of the Gateway NDB and cancellation of the NDB approaches due to advances in GPS capabilities have made airspace reconfiguration is necessary at this airport. The geographic coordinates noted in Class D and E surface area airspace for South Sioux City, Martin Field, NE, also would be adjusted.

    Class D and E airspace designations are published in paragraphs 5000, 6002, 6004 and 6005, respectively, of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Environmental Review

    This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015, is amended as follows: Paragraph 5000 Class D Airspace. ACE IA D Sioux City, IA [Amended] Sioux City, Sioux Gateway/Col. Bud Day Field, IA (lat. 42°24′09″ N., long. 96°23′04″ W.) South Sioux City, Martin Field, NE (lat. 42°27′19″ N., long. 96°28′20″ W.)

    That airspace extending upward from the surface to and including 3,600 feet MSL within a 4.3-mile radius of Sioux Gateway/Col. Bud Day Field, excluding that airspace within a 1-mile radius of South Sioux City, Martin Field. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.

    Paragraph 6002 Class E Airspace Designated as Surface Areas. ACE IA E2 Sioux City, IA [Amended] Sioux City, Sioux Gateway/Col. Bud Day Field, IA (Lat. 42°24′09″ N., long. 96°23′04″ W.) South Sioux City, Martin Field, NE (Lat. 42°27′19″ N., long. 96°28′20″ W.)

    Within a 4.3-mile radius of Sioux Gateway/Col. Bud Day Field, excluding that airspace within a 1-mile radius of the South Sioux City, Martin Field. 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 Airport/Facility Directory.

    Paragraph 6004 Class E Airspace Areas Designated as an Extension to a Class D or Class E Surface Area. ACE IA E4 Sioux City, IA [Removed] Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ACE IA E5 Sioux City, IA [Amended] Sioux City, Sioux Gateway Airport/Col. Bud Day Field, IA (Lat. 42°24′09″ N., long. 96°23′04″ W.) Sioux City VORTAC (Lat. 42°20′40″ N., long. 96°19′25″ W.)

    That airspace extending upward from 700 feet above the surface within a 6.8-mile radius of Sioux Gateway Airport/Col. Bud Day Field, and within 3.9 miles each side of the 319 ° radial of the Sioux City VORTAC extending from the 6.8-mile radius to 14.4 miles northwest of the VORTAC, and within 4 miles each side of the 001 ° bearing from Sioux Gateway Airport/Col. Bud Day Field extending from the 6.8-mile radius of the airport to 12 miles northwest of the airport.

    Issued in Fort Worth, Texas, on April 4, 2016. Robert W. Beck, Manager, Operations Support Group, Central Service Center.
    [FR Doc. 2016-08394 Filed 4-12-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2016-4429; Airspace Docket No. 16-ASW-8] Proposed Amendment of Class E Airspace for the Following Louisiana Towns; De Quincy, LA; Minden, LA; Slidell, LA; and Revocation of Class E Airspace; Homer, LA AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to modify Class E airspace extending upward from 700 feet above the surface at De Quincy Industrial Airpark, De Quincy, LA; Minden-Webster Airport, Minden, LA; and Slidell, Airport, Slidell, LA. Decommissioning of non-directional radio beacon (NDB), cancellation of NDB approaches, and implementation of area navigation (RNAV) procedures have made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at the above airports. This action also proposes to remove Class E airspace extending upward from 700 feet above the surface at Homer Municipal Airport, Homer, LA, as controlled airspace is no longer needed. Additionally, the geographic coordinates at De Quincy Industrial Airpark, Minden-Webster Airport, and Slidell Airport would be adjusted to coincide with the FAA's aeronautical database.

    DATES:

    Comments must be received on or before May 31, 2016.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366-9826. You must identify FAA Docket No. FAA-2016-4429; Airspace Docket No. 16-ASW-8, at the beginning of your comments. You may also submit comments through the Internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5527), is on the ground floor of the building at the above address.

    FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202-267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.9Z at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

    FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace at De Quincy Industrial Airpark, De Quincy, LA; Homer Municipal Airport, Homer, LA; Minden-Webster Airport, Minden, LA; and Slidell, Airport, Slidell, LA.

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2016-4429/Airspace Docket No. 16-ASW-8.” The postcard will be date/time stamped and returned to the commenter.

    Availability of NPRMs

    An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

    Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

    Availability and Summary of Documents Proposed for Incorporation by Reference

    This document would amend FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E airspace extending upward from 700 feet above the surface within a 7.5-mile radius of De Quincy Industrial Airpark, De Quincy, LA; within a 6.5-mile radius of Minden-Webster Airport, Minden, LA; and within a 6.5-mile radius of Slidell Airport, Slidell, LA, with segments extending from the 6.5-mile radius to 9.2 miles north, and 9 miles south of the airport. Airspace reconfiguration is necessary due to the decommissioning of NDBs, cancellation of NDB approaches, and implementation of RNAV procedures at the above airports. The Class E airspace area extending upward from 700 feet above the surface within a 6.8-mile radius of Homer Municipal Airport, Homer, LA, would be removed as controlled airspace is no longer needed. Controlled airspace is necessary for the safety and management of the standard instrument approach procedures for IFR operations at the airports.

    Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Environmental Review

    This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ASW LA E5 De Quincy, LA [Amended] De Quincy Industrial Airpark, LA (Lat. 30°26′28″ N., long. 93°28′25″ W.)

    That airspace extending upward from 700 feet above the surface within a 7.5-mile radius of De Quincy Industrial Airpark.

    ASW LA E5 Homer, LA [Removed] ASW LA E5 Minden, LA [Amended] Minden-Webster Airport, LA (Lat. 32°38′46″ N., long. 93°17′53″ W.)

    That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Minden-Webster Airport.

    ASW LA E5 Slidell, LA [Amended] Slidell Airport, LA (Lat. 30°20′47″ N., long. 89°49′15″ W.)

    That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Slidell Airport, and within 4.0 miles each side of the 360° bearing from the airport extending from the 6.5-mile radius to 9.2 miles north of the airport, and within 4.0 miles each side of the 180° bearing from the airport extending from the 6.5-mile radius to 9.0 miles south of the airport.

    Issued in Fort Worth, Texas, on April 4, 2016. Robert W. Beck, Manager, Operations Support Group, Central Service Center.
    [FR Doc. 2016-08393 Filed 4-12-16; 8:45 am] BILLING CODE 4910-13-P
    CONSUMER PRODUCT SAFETY COMMISSION 16 CFR Part 1025 [CPSC Docket No. 2016-0006] Rules of Practice for Adjudicative Proceedings AGENCY:

    Consumer Product Safety Commission.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The United States Consumer Product Safety Commission (“Commission,” “CPSC,” or “we”) is issuing this notice of proposed rulemaking (“NPR”) to update the Commission's Rules of Practice for Adjudicative Proceedings, (“Rules of Practice” or “Rules”). We are proposing to modernize the Rules of Practice to reflect changes in civil and administrative litigation since adoption of the Rules in 1980. Specifically, we propose changes to the Rules pertaining to discovery, electronic filing, the use of electronically stored information (“ESI”), and updates to the Federal Rules of Civil Procedure (“Federal Rules”), upon which our Rules are based. We also propose to update requirements for pleadings, motions, and motions for summary decisions, clarifications on the computation of time, and clarification on when amendments or supplemental pleadings require Commission approval. Additionally, we propose allowing a Presiding Officer to exercise discretion to avoid unnecessary delay or wasteful discovery and to consolidate cases in their entirety, or partially, for any purpose that serves the ends of justice. We also propose to set deadlines for the issuance of an Initial or Recommended Decision. Finally, we propose to remove outdated references to the Equal Access to Justice Act. We believe the proposed Rules will increase the efficiency of discovery, minimize the potential for delay in adjudicative proceedings, and ensure that, to the extent possible, Commission adjudicative proceedings address and resolve crucial issues of consumer product safety in a fair and impartial manner. This NPR seeks comments on the proposed changes to the Rules.

    DATES:

    Submit comments by June 13, 2016.

    ADDRESSES:

    You may submit comments, identified by Docket No. CPSC 2016-0006, electronically or in writing, by any of the following methods:

    Electronic Submissions: Submit electronic comments to the Federal eRulemaking Portal at: http://www.regulations.gov. Follow the instructions for submitting comments. The Commission does not accept comments submitted by electronic mail (email), except through www.regulations.gov. The Commission encourages you to submit electronic comments through the Federal eRulemaking Portal.

    Written Submissions: Submit written submissions by mail/hand delivery/courier to: Office of the Secretariat, Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7923.

    Instructions: All submissions received must include the agency name and docket number for this proposed rulemaking. All comments received may be posted without change, including any personal identifiers, contact information, or other personal information provided, to: http://www.regulations.gov. Do not submit confidential business information, trade secret information, or other sensitive or protected information that you do not want to be available to the public. If furnished at all, such information should be submitted in writing.

    Docket: For access to the docket to read background documents or comments received, go to: http://www.regulations.gov, and insert the docket number CPSC-2016-0006, into the “Search” box, and follow the prompts.

    FOR FURTHER INFORMATION CONTACT:

    Mary B. Murphy, Assistant General Counsel, U.S. Consumer Product Safety Commission, 4330 E. West Highway, Bethesda, MD 20814-4408; email: [email protected] telephone: (301) 504-7809.

    SUPPLEMENTARY INFORMATION:

    The Commission is proposing to amend the agency's Rules of Practice for Adjudicative Proceedings. 16 CFR part 1025. The proposed rule reflects changes in civil and administrative litigation since adoption of the Rules in 1980.

    Table of Contents I. Background and Statutory Authority II. Reasons for Revision of the Rules III. Section-by-Section Analysis of the Proposed Revisions of the Rules of Practice IV. Environmental Issues V. Regulatory Flexibility VI. Paperwork Reduction VII. Preemption VIII. Effective Date IX. Requests for Comments I. Background and Statutory Authority a. Commission Adjudicative Proceedings

    The Consumer Product Safety Act (15 U.S.C. 2064(c), (d), (f); 2076(b)) (“CPSA”), the Federal Hazardous Substances Act (id. 1274) (“FHSA”), the Flammable Fabrics Act (id. 1192, 1194, 1197(b)) (“FFA”), the Poison Prevention Packaging Act (id. 1473(c)) (“PPPA”), and the Virginia Graeme Baker Pool and Spa Act, (id. 8003) (“VGBA”) authorize the Commission to initiate and conduct adjudicative proceedings related to the safety of certain consumer products, and, based on the Commission's findings, issue orders or take other action to protect the public. Under the requirements of the cited statutes, such adjudicative proceedings must be determined on an administrative record after opportunity for a public hearing.

    b. Procedural Rules Requirement

    Under the Administrative Procedure Act (“APA”) (5 U.S.C. 500 et seq.), adjudications mandated by statute to be determined on the record after opportunity for a public hearing are subject to certain procedural requirements. These requirements include notice of the time, place and nature of the hearing, information about the legal authority under which the hearing is to be held, and information on the matters of fact and law asserted. (Id. 554(a)-(b)). The Commission adopted the Rules of Practice to govern adjudicative hearings under its enabling statutes and other administrative proceedings, as determined by the Commission.

    c. History of the Rules of Practice

    The Rules of Practice were first proposed by the Commission in 1974, for use on an interim basis. (39 FR 26848, July 23, 1974). In 1977, the Commission revised the Rules of Practice, publishing them for use on an interim basis and for public comment. (42 FR 31431 (interim rules); 42 FR 36818 (issuing correction). In 1980, after considering public comments and the Commission's experiences with the existing interim rules, the Commission adopted the Rules of Practice. (45 FR 29215, May 1, 1980). The Commission last amended the Rules of Practice in 1982 to make them applicable to hearings required by section 15 of the FHSA (47 FR 46845, Oct. 21, 1982).

    On May 12, 2015, the Commission voted to direct staff to present for Commission consideration a revision of the Rules of Practice, with the goal of streamlining future adjudications and aligning the Rules of Practice with the Federal Rules of Civil Procedure.

    II. Reasons for Proposed Revision of the Rules a. Alignment With the Federal Rules of Civil Procedure

    Since the 1980s, when the Commission last amended the Rules of Practice, the Commission's model, the Federal Rules, have been substantially revised. Among other things, these changes altered the pretrial process, providing new discovery standards intended to increase the speed and efficiency of litigation.

    Prominent among these changes were detailed rules requiring parties to cooperate in pre-discovery and pre-trial planning. For example, the Federal Rules now require an affirmative pre-discovery disclosure by each party of information, documents, ESI, and other evidence that the party may use to support its claims or defenses. The Federal Rules also require participation by parties in pre-discovery and pretrial conferences, with the aim of focusing the issues to be adjudicated. Along with these changes have come new limits on formal discovery tools, including interrogatories, document requests, and depositions. In addition to proposing that our Rules of Practice follow the scope of discovery stated in Rule 26 of the Federal Rules, we are proposing to follow, with certain changes, the Federal Rules' procedures on mandatory disclosures of information and the Federal Rules' limits on formal discovery tools, by adhering to the Federal Rules on interrogatories, requests for documents and things, depositions, and requests for admission. We believe that changing our Rules of Practice to require affirmative pre-discovery disclosure, mandate participation in pre-discovery and prehearing conferences, and impose limits on wasteful discovery practices will streamline the adjudicative process, and thereby, advance our goal of establishing expeditious and fair proceedings.

    Recent changes in the Federal Rules have also placed substantial focus on the discretionary powers of Presiding Officers. Under these rules, the judge or magistrate may limit or expand discovery, and on motion, or on his or her own initiative, may tailor the pace of the adjudication and the scope and length of discovery based on the issues in each case. We are proposing to follow, with appropriate changes, the Federal Rules' emphasis on empowering the Presiding Officer to use his or her discretion to control the pace and progress of discovery. In our proposed Rules of Practice, the Presiding Officer would be an active participant in the discovery process, with powers to actively manage cases to avoid delays and forestall inefficient or wasteful discovery.

    The Federal Rules provide substantial guidance on the discoverability and use of ESI because, increasingly, information is stored in digital form. Our proposed Rules of Practice would largely follow the Federal Rules' guidance on the discoverability of electronic evidence.

    b. Increasing the Efficiency of Adjudicative Proceedings

    In addition to aligning our Rules of Practice with the Federal Rules, the changes we propose would increase the efficiency and decrease the burden of preparing for and litigating administrative hearings. For example, we propose to update our Rules of Practice on consolidating cases to allow the Presiding Officer to consolidate cases, fully or partially, for discovery and/or for hearing, on a party's motion, or at the Presiding Officer's discretion.

    Additional proposed changes would adapt the Rules of Practice to the general needs of administrative litigation, based on the experiences of Commission staff in adjudicative proceedings. In each case, we propose to emphasize the discretion of the Presiding Officer to facilitate quick, fair, and efficient discovery and trial of adjudicative matters. Although we would vest significant discretion in the Presiding Officer, we would, nevertheless, seek to impose timelines on the adjudicative proceeding and deadlines on the Presiding Officer, requiring initial decisions to be made within set time frames.

    c. Updating CPSC's Rules of Practice To Conform to Current Administrative Practice

    Another important reason for updating our Rules of Practice is to clarify the process for amending complaints authorized by the Commission. We propose to update our Rules of Practice to provide clearer guidance on when amendments require Commission consideration.

    We also propose to revise our Rules of Practice to permit electronic filing and service of pleadings and documents and to discourage filing of paper documents. Likewise, we propose to revise the existing requirement that the Commission's Secretariat maintain an official paper file, a practice that is cumbersome and fails to reflect significant technological advancements. We also propose to revise our Rules of Practice regarding service of process to accommodate electronic service of most documents and pleadings and to recognize the use of common carriers in the delivery of paper documents. Likewise, we propose to clarify our Rules of Practice regarding motions for summary decisions, amending that section to follow more closely the Federal Rules.

    III. Section-by-Section Analysis of the Proposed Revisions to the Rules of Practice Subpart A—Scope of Rules, Nature of Adjudicative Proceedings, Definitions Proposed Changes to Rule § 1025.1 (Scope of Rules)

    The proposal would revise § 1025.1, Scope of rules, to clarify that, in addition to adjudicative proceedings related to the CPSA, the FHSA, and the FFA, the Commission also is empowered to conduct adjudications under the PPPA and the VGBA. Specifically, our proposed revision would clarify that the Commission may conduct adjudicative proceedings under Section 4(c) of the PPPA and Section 1404 of the VGBA. We propose to add appropriate references to these statutes and make additional minor changes for clarity in our Rules of Practice.

    In addition, the proposal would revise § 1025.1 to remove the existing statement that the Rules of Practice govern adjudicative proceedings for the assessment of civil penalties under section 20(a) of the CPSA. Pursuant to a statutory change, such actions are now litigated in U.S. District Court, rather than before the Commission. Therefore, the current language in our Rules of Practice is unnecessary and inaccurate, as is a statement on the limited scope of discovery in civil penalty cases, which we also propose to remove.

    We also propose new language in § 1025.1 to establish the Commission's health and safety mission as a critical concern the Presiding Officer must take into account when establishing deadlines and managing cases. When a matter fails to proceed in a timely manner, it not only results in increased costs and uncertainty for the parties and participants, it can also undermine the agency's statutory obligation to protect the public against unreasonable risks of injury and death associated with consumer products. The Commission expects that the Presiding Officer shall, whenever possible, and in in the interest of protecting public health and safety, expedite proceedings by setting shorter time limitations than the maximum limits imposed by the rules, with the goal of issuing an Initial Decision within 1 year from the date of the complaint.

    As part of our goal of aligning the Rules of Practice with the updated Federal Rules, we also propose to add a statement to § 1025.1, indicating that, except where stated otherwise, parties shall follow the Federal Rules on certain discovery matters. We believe that following the Federal Rules on discovery matters would streamline the discovery process, and thereby introduce increased efficiencies to advance our goal of avoiding unnecessary delay. Through this change, we would redefine the scope of discovery to encompass Rule 26 of the Federal Rules, and would follow generally, with some stated exceptions discussed below, the Federal Rules' procedures on pretrial discovery, including interrogatories (Fed. R. Civ. P. 33); production of documents, electronically stored information, and tangible things (Fed. R. Civ. P. 34); requests for admission (Fed. R. Civ. P. 36); and depositions (Fed. R. Civ. P. 30-32). We would not follow the Federal Rules on subpoenas, which by statute, requires Commission approval. We also propose additional minor and non-substantive changes to the Rules of Practice for clarity.

    Proposed Changes to § 1025.3 (Definitions)

    One of our goals in revising our Rules of Practice is to update the Rules of Practice to reflect current litigation practices and advances in technology. To recognize that ESI, i.e., information created, manipulated, communicated, stored, and best utilized in digital form, or requiring the use of computer software and hardware, has become a significant part of civil discovery, we propose in new § 1025.3(e) to follow the definition of ESI in the Federal Rules. We believe this definition would provide clarity and allow parties and participants to be guided by the developing case law and scholarship on electronic discovery.

    We also propose several additional non-substantive changes, including a new § 1025.3(f) that would reference our rule on ex parte communications. We further propose to add a new § 1025.3(g) to clarify that references to the Federal Rules throughout this proposed rule refer to the Federal Rules of Civil Procedure. Because we propose additional paragraphs, we would also re-designate the paragraphs in this section to reflect these changes. Finally, we propose a clarified definition of CPSC's “Secretariat” in current § 1025.3(n).

    Subpart B—Pleadings, Form, Execution, Service of Documents Proposed Changes to § 1025.11 (Commencement of Proceedings)

    Section 1025.11 sets out requirements for the filing of a complaint in an adjudicative proceeding. In § 1025.11(a), we propose revisions to reflect organizational changes within the Commission since adoption of the current Rules of Practice. Complaint Counsel would be authorized to sign a complaint following Commission approval, rather than the Assistant Executive Director for Compliance and Enforcement, as the current rule requires.

    Currently, § 1025.11(b)(3) requires that a complaint contain “[a] list and summary of documentary evidence supporting the charges.” We propose eliminating this requirement given the mandatory disclosures of evidence set forth in Federal Rule 26(a)(1)(A), which we propose following as part of § 1025.31, General provisions governing discovery, discussed below.

    We propose adding a new § 1025.11(d) to clarify that a Commission action to obtain a preliminary injunction from a federal district court pursuant to 15 U.S.C. 2064(g) shall not serve as the basis to stay proceedings under these rules. In light of the extensive time frame for resolving matters in adjudicative proceedings, it is the Commission's strong expectation that if the respondent fails to agree to stop sale and distribution of a product which the Commission has reason to believe presents a substantial product hazard, Commission staff will, within a reasonable amount of time following the commencement of proceedings under this part 1025, apply to a district court of the United States for the issuance of a preliminary injunction (pursuant to 15 U.S.C. 2064(g)) to restrain the distribution in commerce of such product pending the completion the adjudicative proceedings. For this reason, and in furtherance of its mission to protect public health and safety, the Commission strongly urges the Presiding Officer to, whenever practicable, shorten the time limitations imposed by these rules and endeavor to issue an Initial Decision as soon as possible.

    We also propose several additional minor and non-substantive changes in grammar throughout this paragraph.

    Proposed Changes to § 1025.13 (Amendments and Supplemental Pleadings)

    Section 1025.13, titled, Amendments and supplemental pleadings, currently states that the Presiding Officer may allow appropriate amendments and supplemental pleadings which do not unduly broaden the issues in the proceedings or cause undue delay. When this section was initially proposed in 1977, commenters expressed concern that granting such broad discretion risked “usurping the Commission's function” to serve as the sole source of administrative litigation seeking to compel recall of consumer products. 45 FR 29 206-207 (May 1, 1980). At the time, stating that the Rules “provide adequate procedures for the parties to argue their respective positions and an adequate framework for the exercise of the broad discretion vested in the Presiding Officer,” the Commission concluded that, under § 1025.13, “neither the Presiding Officer nor the Commission staff is usurping the Commission function.” 45 FR 29208. We now believe it may be helpful to provide additional clarity.

    The Commission proposes to amend § 1025.13 to require that the Presiding Officer refer to the Commission any amendment that would (1) have the effect of adding to or removing from the litigation any party or count, (2) fall outside the scope of an authorized complaint, or (3) broaden staff's authority under a complaint.

    Proposed Changes to § 1025.14 (Form and Filing of Documents)

    As an initial matter, we are proposing to revise the title of this section to Form and filing of pleadings and other documents to clarify that the requirements of this section pertain to pleadings, as well as other documents. In § 1025.14(a), we propose that all pleadings and documents shall be filed electronically with the Secretariat and the Presiding Officer, unless the Presiding Officer orders otherwise. We propose this change because the rule, as written, is outdated and does not reflect current practice for filing pleadings and evidence electronically, which has become the norm in most state and federal courts. Moreover, the current rule requires the Office of the Secretary to maintain the official file, in paper format, access to which is limited by the operational hours of the Commission. Thus, our proposed change would not only reflect current technological advances, but the change also would expand public access to the official file. The proposed rule would, however, allow the Presiding Officer discretion to permit exceptions to the electronic filing requirement so that paper documents may be filed if the Presiding Officer so orders.

    To emphasize our preference for electronic filing, we propose to omit existing language stating that documents “may be filed in person or by mail.” We also propose changes, consistent with our proposal on electronic filing, establishing the filing date for documents. Electronically filed documents would be deemed filed on the date of the electronic filing; however, recognizing the broad discretion afforded the Presiding Officer, we propose adding language stating that the Presiding Officer may allow alternative methods of filing, by order, and that such order shall state the applicable date on which such pleadings or documents are deemed filed.

    New language in proposed § 1025.14(c) would also eliminate our current requirement that three copies of pleadings be filed, a superfluous requirement in an era where digital copies are created easily. Under our proposed change, a single electronic copy must be filed with the Secretariat and the Presiding Officer; however, we propose to add language that acknowledges that the Presiding Officer may order paper filings.

    In § 1025.14(d), we would require that the original of each document that is filed electronically be signed electronically.

    Section 1025.14(e) currently anticipates filing of paper documents, and sets standards for such filings. We propose to amend this paragraph to establish requirements that address the electronic filing of pleadings and documents. In § 1025.14(e)(1), we would require an electronic address in addition to a mailing address. Section 1025.14(e)(2) would require filing electronic text documents in a format that uses 12-point font with double spacing and prints on standard letter-sized paper with 1-inch margins. This paragraph also would include the requirement that electronic documents and files that cannot be readily printed, such as large spreadsheets, videos, or photographs, be identified by technical format and also include information on the program or protocol required to review the information. The font, spacing and margin requirements are consistent with Rule 32 of the Federal Rules of Appellate Procedure and Rule 102(a)(b) of the U.S. District Court for the District of Maryland.

    We also propose to update § 1025.14(e)(3), which currently states: “[d]ocuments that fail to comply with this section may be returned by the Secretary.” Under the proposed § 1025.14(e)(3), documents that do not meet the filing requirements, or electronic documents that cannot be opened or read, may be returned to the filer by the Secretariat or the Presiding Officer. Lastly, we propose to add language to § 1025.14(e)(3) to allow a Presiding Officer to permit deviation from the form prescribed in this section, for good cause shown, a change that underscores our goal of vesting broad discretion in the Presiding Officer to maximize efficiency and flexibility in how an adjudication proceeds.

    Proposed Changes to § 1025.15 (Time)

    In § 1025.15(a) we would make several non-substantive changes, including a clarification of the title to make clear that the computation of time refers to days. We also would make clear that “day” means calendar day. We further propose to clarify the existing language to state that the day on which the event triggering the period shall not be included in the calculation of time, but each calendar day thereafter shall; and that if the last day of the time period falls on a weekend or legal holiday, the time period shall be tolled until the next day that is not a weekend or a legal holiday. We also propose to update this section to delete references to specified legal holidays in the existing rule and refer instead to the legal public holidays identified in 5 U.S.C. 6103. This revision would include Martin Luther King, Jr.'s birthday as a holiday and would allow the Rules of Practice to reflect any changes to the list of legal public holidays made in the future.

    We further propose to amend § 1025.15(b) to state that whenever a party is required or permitted to do an act within a prescribed period after service of a document and the Presiding Officer permits service by mail, three (3) days shall be added to the prescribed period. This amendment recognizes that while electronic service is preferred, service by mail may be allowed by order of the Presiding Officer; if such service is made by mail, three additional days would be added to the date by which the recipient must perform a subsequent action.

    In § 1025.15(c) regarding the extension of time limits, we propose to add language clarifying that initial decisions are decisions issued under § 1025.51 of the Rules of Practice.

    We also propose to add a new paragraph (d), which would be titled Stay of proceedings, to clarify that if a stay of proceedings is granted by order of the Presiding Officer or Commission, the time limits specified in these rules shall be automatically tolled during the period while the stay is in effect.

    Proposed Changes to § 1025.16 (Service)

    We propose several changes to § 1025.16, titled, Service, to reflect current litigation practice and advancements in technology. First, we propose to revise § 1025.16(a) to reflect proposed changes to § 1025.14 that would require the Presiding Officer to maintain the official file for an adjudicative proceeding, if practicable. Second, our proposed § 1025.16(b) would remove subpoenas from the service requirements of this section because we address those requirements in § 1025.28(e), discussed below. We also propose a new § 1025.16(b)(1) that would allow service of a complaint, ruling, petition for interlocutory appeal, order, or decision to be made by electronic means if ordered by the Presiding Officer or by agreement of the parties. We also propose renumbering the subparagraphs of § 1025.16(b) to reflect this addition. Third, in proposed § 1025.16(b)(2), we would permit service by commercial carrier, a change that reflects common practice today.

    We also propose in § 1025.16(b)(3) to add “a limited liability company” to the list of corporate entities that may be served, and would add “entity” in the title of the paragraph, for clarity. We propose this change to capture the types of legal entities that exist and may be the subject of an administrative complaint. Finally, we propose to add language in new § 1025.16(b)(4) that, recognizing the preference for electronic service of documents, clarifies the circumstances in which delivery of a document to an address is appropriate.

    In § 1025.16(c), we would establish electronic service as the primary mode of service for other documents, unless otherwise ordered by the Presiding Officer or agreed to by the parties. Proposed changes to § 1025.16(e), which provides a form for certificates of service, and § 1025.16(f), which sets the date of service of documents, would provide for electronic filing. Consistent with the establishment of electronic filing, we propose to delete reference in § 1025.16(e) to “the original of every document,” and instead, require that “every document” be accompanied by a certificate of service.

    Proposed Changes to § 1025.17 (Intervention)

    We are proposing to revise § 1025.17(a), (b), and (c) to identify accurately the Secretariat of the Commission. We also propose to correct a typographical error in § 1025.17(c)(5). We do not intend these changes to be substantive.

    Proposed Changes to § 1025.18 (Class Actions)

    We are proposing to revise § 1025.18(a)(1) for clarity. The general word “class” would be replaced with the more specific phrase “class of respondents.”

    Proposed Changes to § 1025.19 (Joinder of Proceedings)

    We propose to revise the title of § 1025.19, currently Joinder of proceedings, to Consolidation of proceedings because the rule, modeled on Rule 19 of the Federal Rules, actually describes consolidation, rather than joinder, a different legal concept. In addition, we propose new § 1025.19(a) to state that the Presiding Officer or the Commission may order the actions involving a common question of law or fact be consolidated for any purpose if the Presiding Officer finds that consolidation will “avoid unnecessary cost or delay.” This would change the current rule, which permits the Presiding Officer or the Commission to consolidate actions only “for the purpose of hearing or Commission review.” This proposed language expands the authority of the Presiding Officer to consolidate actions or portions of actions, as appropriate, a change that is consistent with our goal of assigning broad discretion to the Presiding Officer in the conduct of a proceeding. In practice, the current rule may lead to uncertainty about whether cases may be consolidated for limited purposes, such as discovery, where there are multiple respondents. Under the proposed rule, we make clear that the Presiding Officer may order partial consolidations on issues including, but not limited to, discovery, pretrial procedure, and/or hearing.

    We propose to add a new § 1025.19(b), including insertion of a title, for clarity.

    Subpart C—Prehearing Procedures, Motions, Interlocutory Appeals, Summary Judgments, Settlements Proposed Changes to § 1025.21 (Prehearing Conferences)

    We propose changes to § 1025.21, Prehearing conferences, to reflect updated procedures in the Federal Rules. Specifically, the proposed changes would require a preliminary meeting of the parties before discovery commences, followed by an initial prehearing conference with the Presiding Officer. We believe these preliminary steps would streamline the process, focus the issues, and advance our goal of achieving a fair and expeditious proceeding.

    Under proposed § 1025.21(a), the parties would be required to conduct a preliminary meeting no later than 5 days after the answer is due by the last answering party. At the preliminary meeting, the parties would be directed to discuss the nature and basis of their claims and defenses and the possibilities for settlement or resolution of the case. The proposed change also would require parties to attempt to agree on a proposed discovery plan with a schedule for depositions of fact witnesses, the production of documents and ESI, and the timing of expert discovery. In addition, the proposed revision would require the parties to seek agreement on the scope of electronic discovery, including specified time periods for which electronic information is sought, and agree on the format in which electronic discovery would be produced. The parties also would be required to develop a preliminary time estimate for the evidentiary hearing and to attempt to reach agreement on any other matters to be determined at the prehearing conference. We believe these changes would help expedite the process by setting an earlier deadline for a meeting of the parties and by having the parties resolve issues through mutual agreement.

    Under proposed § 1025.21(b), which would be titled, Initial prehearing conference, we propose to modify the issues to be discussed at the prehearing conference to provide a more concise list of issues to be addressed. We believe a tailored agenda for the prehearing conference would maximize efficiency and concentrate focus on major issues. At the initial prehearing conference, the parties, with the guidance of the Presiding Officer, would address a range of issues, including their factual and legal theories, the current status of pending motions or petitions, the date for the evidentiary hearing, steps taken to preserve evidence, and the scope of anticipated discovery and a discovery plan. This list would be for illustrative purposes only and would not be intended to restrict the topics that could be discussed at the prehearing conference under the proposed revision to this section.

    In § 1025.21 we also propose to re-designate existing paragraph (b), Public notice, as paragraph (c), and to re-designate existing paragraph (c), Additional conferences, as paragraph (e).

    Under proposed § 1025.21(d), the Presiding Officer would be required to enter an order setting forth the results of the initial prehearing conference, establishing a timeline for discovery, motions, and any other appropriate matters. We make this proposal to address the inadequacy of the current requirement that the Presiding Officer issue a prehearing order only after the conclusion of the final prehearing conference, a point late in the process that does not provide sufficient time for potential resolution of issues. We believe that the parties and the Presiding Officer would benefit from establishing a schedule earlier in the proceedings, and we also trust that such a schedule would clarify issues and expedite the proceedings. In addition, in § 1025.21 we propose to re-designate existing paragraph (d), Reporting, as paragraph (h), and make it consistent with our proposal in § 1025.41(a) to exclude Commissioners and their staffs from attending or viewing public hearings prior to the Presiding Officer's initial decision. In paragraph (e), which we propose to re-designate paragraph (g), we would revise the title to be Final prehearing order, for clarity. We also propose to remove references to the format set forth in appendix I, because, as discussed below, we are proposing to delete the appendix.

    Under proposed § 1025.21(f), we would require a final prehearing conference as close to the evidentiary hearing as practicable. Under the current rules, it is not clear that such a conference should occur; our proposed change would make clear that such a conference would be mandatory. We believe that such a conference would benefit the parties and the Presiding Officer by focusing the issues before the hearing and resolving final evidentiary matters.

    Proposed Changes to § 1025.22 (Prehearing Briefs)

    We are proposing to revise this section to require the filing of prehearing briefs, which, under the current Rules, are discretionary. We believe that prehearing briefs should be mandatory because information contained in these briefs would set the necessary framework for the proceeding, clarifying the facts to be proven, the order of proof, and the issues to be decided.

    Proposed Changes to § 1025.23 (Motions)

    We propose to change this section to clarify rules governing the filing of motions. Under the current rule, all motions, except for disqualification motions, must be addressed to the Presiding Officer. Our proposed revision to § 1025.23(a) would add subpoena applications to the list of motions that would not be addressed to the Presiding Officer. We propose this change because subpoena applications follow distinct procedures set forth in § 1025.38(c), discussed below. In § 1025.23(b), we propose a minor, non-substantive clarification, changing “Secretary” to “Secretariat.” Proposed changes in § 1025.23(c) would include a revision of the title to Response and replies, which reflects our proposed addition regarding reply briefs. We also would expand the time to respond to motions from 10 days to 14 days because, in staff's experience, 10 days does not provide adequate time to respond to a motion, particularly when weekend days are considered in the computation. We believe the addition of 4 days to respond to a motion would provide sufficient time to prepare and submit a response without burdening the process with unnecessary delay. Additionally, this paragraph would expressly permit replies, which currently are available only by leave of the Presiding Officer or the Commission. In our experience, replies are granted routinely, and this change merely recognizes that practice, eliminating the unnecessary step of seeking leave. This paragraph also would permit the Presiding Officer (or the Commission, as the case may be), to authorize the filing of additional briefs, on good cause shown, a change that reflects our belief that the broad authority to administer a proceeding should be vested with the Presiding Officer. We further propose that additional briefs, if permitted, must be filed within 5 days after service of the pleading to which the brief replies.

    Proposed Changes to § 1025.24 (Interlocutory Appeals)

    Section 1025.24 currently lists four exceptions to the general rule against interlocutory appeals. Proposed § 1025.24 would add a fifth exception, permitting interlocutory appeal where the Presiding Officer grants or denies a motion to amend a complaint under § 1025.13. The proposed revisions to § 1025.13 are intended to reiterate that only the Commission is empowered to issue administrative complaints and that any amendments cannot have that effect without Commission approval. This revision to § 1025.13 is intended to ensure that, if a party believes the Presiding Officer has improperly ruled on such an amendment without Commission approval, that party will have the opportunity to appeal that ruling immediately, without being compelled to litigate a matter in order to obtain a Commission decision on whether or not that party should be in the litigation at all.

    We propose to revise § 1025.24(b)(1)(ii) to clarify that nature of the proceeding from which an interlocutory appeal may be filed. We propose to revise § 1025.24(b)(2) to state that the Commission may decide a petition for an interlocutory appeal based on the existing record, or the Commission may request additional briefing and oral presentation. As written, the rule currently imposes an obligation on the Commission to decide the petition or request further briefing. Our proposed change makes clear that such a binary decision is not required and that the Commission has the option of deciding the petition based on the record, or the Commission may request further briefing or oral presentation.

    Proposed Changes to § 1025.25 (Summary Decisions and Orders)

    We are proposing changes to § 1025.25(a) to align our rule more closely with Rule 56 of the Federal Rules. Under our current Rules of Practice, the movant does not have to file a statement of material facts not in dispute, nor does the respondent have to file a statement of material facts that respondent contends are in dispute. The proposed change would require that motions and oppositions to motions be accompanied by separate statements of material facts about which the movant asserts there is no dispute and about which the opposing party contends there is a genuine dispute. We believe this change will enhance efficiency because filing statements of material fact would help pinpoint the primary issues in dispute. We also propose to revise § 1025.25(a) to conform to changes we propose to § 1025.21, discussed above, to state that a summary decision motion be filed in accordance with any prehearing order issued by the Presiding Officer. The time for filing the motion would also be defined, providing that such motions to be filed up to thirty (30) days following the close of discovery. We are proposing this change because we believe this time period would afford the Presiding Officer sufficient time to carefully consider such motions, and would encourage resolution of part or all the matter well in advance of the scheduled hearing date.

    We also propose to revise § 1025.25(b) to require that a response to a summary decision motion be accompanied by a statement of material facts that the opposing party contends are in dispute, a change that will enhance focus on the main issues in dispute. We also propose to modify § 1025.25(c) to add specific items in the record that should be considered by the Presiding Officer in resolving the motion, a change that mirrors Rule 56 of the Federal Rules.

    Proposed Changes to § 1025.26 (Settlements)

    We are proposing to revise § 1025.26(b) to clarify that motions that request that the Presiding Officer transmit a proposed consent agreement to the Commission must be filed in camera. In addition, we propose to amend this paragraph to state that offers of settlement shall be served on complaint counsel. Thus, the revised rule would ensure that complaint counsel would be apprised of any non-jointly submitted offers of settlement. Under the current rule, a party may submit any settlement offer to the Commission without notifying complaint counsel. Because we are proposing in this rule to remove the ex parte prohibition on communications in the context of settlement agreements, discussed in § 1025.68, we are proposing that complaint counsel be made aware of all such offers so that complaint counsel can communicate knowledgeably to the Commission about the substance of such offers.

    In § 1025.26(c)(1) through (4), we propose a number of non-substantive editorial changes. In § 1025.26(c)(5), we propose to add language that an offer of settlement should also include a list of “acts or practices that the respondent shall affirmatively undertake.” This addition acknowledges the authority of the Commission, after an opportunity for hearing, to order a firm to undertake certain actions pursuant to section 15(d) of the CPSA.

    Under current § 1025.26(d), the Presiding Officer may transmit to the Commission offers of settlement that meet the requirements of form and content set forth in § 1025.26(c). We propose to revise this paragraph to require the Presiding Officer to transmit all non-frivolous, non-duplicative settlement offers to the Commission, removing the discretion provided to the Presiding Officer in the current rule. We propose this change because we believe the Commission should review all non-frivolous, non-duplicative settlements with the goal of advancing resolution of a matter, if possible. In addition, we propose that, to be transmitted, such an offer must comply with the requirements of § 1025.26(b), as well as § 1025.26(c).

    We also are proposing non-substantive changes in § 1025.26(e) and (g).

    Subpart D—Discovery, Compulsory Process Proposed Changes to § 1025.31 (General Provisions Regarding Discovery)

    The Commission proposes to revise § 1025.31(a) to require parties to conduct discovery in accordance with Rule 26 of the Federal Rules, with several exceptions, discussed below. Rule 26 imposes a number of requirements, such as requiring initial disclosures, prehearing conferences, scope of discovery, and limitations on the timing, frequency and extent of discovery. Rule 26 also sets forth provisions governing discovery of material prepared in anticipation of trial, expert discovery, and requests for protective orders. Under the current rule, methods, sequence and scope of discovery are addressed in a general fashion. We believe that adopting the detailed procedures set forth in Rule 26 will achieve earlier and more meaningful coordination between the parties and will advance the efficient progress of an adjudicative proceeding.

    Although we intend largely to follow Rule 26, we propose to depart from Rule 26 procedures in a number of ways. Specifically, regarding the time periods for discovery, we will not follow Rule 26 guidance and will instead allow schedules to be set at the discretion of the Presiding Officer, unless a specific time frame is set forth in our rules. We expect the Presiding Officer to set appropriate timelines as the facts may dictate or the comparative complexity of a matter requires. We also expect that, whenever possible, the Presiding Officer will shorten schedules, particularly where expedited hearings would serve the public interest, or where issues do not require expert discovery or lengthy evidentiary hearings.

    In addition, in proposed § 1025.31(a), we would require that initial disclosure of information be produced no later than 5 days after the preliminary meeting of the parties. This proposed rule shortens the 14-day time frame for such disclosures that is afforded under the Federal Rule, a step that furthers coordination among the parties and encourages expeditious resolution of issues. We also propose that our proceedings not adhere to Rule 26 requirements that experts must produce a written report (Rule 26(a)(2)(B)) because such reports may not be practicable in adjudicative matters that proceed on an expedited schedule. We also adopt the provisions governing protective orders in Rule 26(c), but we have modified the Rule to recognize that in adjudicative proceedings under part 1025, such motions shall be made to and decided by the Presiding Officer. In addition, we propose that our proceedings not adhere to Rule 26(f) regarding conference timing, content, and discovery plan because such matters are governed by the proposed revisions to § 1025.21, which allow the Presiding Officer to impose deadlines and shorten time frames, as necessary.

    Additionally, we propose changes in newly designated § 1025.31(b), Completion of discovery, to state that the 150-day standard discovery period controls fact discovery but does not control expert discovery, which may extend beyond the 150-day limit. Moreover, our proposed revisions would vest the Presiding Officer with the discretion to establish a time frame for completion of expert discovery. We propose these changes because in our experience expert discovery is more efficient after fact discovery is completed. For less complex matters, the Presiding Officer is vested with the discretion to shorten deadlines and time frames under § 1025.21 of this Rule. Because we are following Rule 26 in large part, we are proposing to omit current paragraphs (a) through (i). We also note that, in following Rule 26, parties are not required to file discovery with the Secretariat and the Presiding Officer. Instead, parties would serve discovery responses on each other, thus relieving the Secretariat and the Presiding Officer of the burden of maintaining a voluminous amount of information.

    Proposed Changes to § 1025.32 (Written Interrogatories to Parties)

    We propose to revise this section to follow Rule 33 of the Federal Rules (Interrogatories to Parties), including the number, scope, and timing of interrogatories, the requirements of answers and objections, and the option to produce business records, so that we can maximize efficiency and reduce undue delay. Under the proposed change, for example, interrogatories would be limited to 25. The current rules do not impose any limits, thereby inviting overly burdensome requests and potential abuse that could impede the progress of a matter. Adopting Rule 33 of the Federal Rules would allow the Presiding Officer to alter the limits on the frequency and extent of discovery pursuant to Rule 26(b).

    Because we propose to follow the Federal Rules on interrogatories, we also propose to omit § 1025.32(a) through (d) of the current rules.

    Proposed Changes to § 1025.33 (Production of Documents)

    The Commission proposes to revise the title to Production of documents, electronically stored information, and tangible things; access for inspection and other purposes, to reflect the expanded types of information covered by this section. In addition, we propose to revise this section to follow, with one exception, Rule 34 of the Federal Rules (Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes). This provision governs the number, scope, and timing of information requests, the requirements of responses and objections, and Rule 34's treatment of production of ESI. We believe this proposed change would maximize efficiency because the proposed procedure would align our discovery practice with discovery under the Federal Rules and case law interpreting the Federal Rules, and would provide specific direction on the discovery of ESI, which is not specifically addressed in our current rules. However, we propose to depart from Rule 34 regarding requests for subpoenas, and propose instead that requests for subpoenas be governed by § 1025.38 of our Rules of Practice, as discussed below. Because we propose to follow the Federal Rules for the production of documents, we also propose to omit § 1025.33(a) through (d).

    Proposed Changes to § 1025.34 (Requests for Admission)

    We propose to revise this section to follow, with one exception, Rule 36 of the Federal Rules (Requests for Admission). We would not follow Rule 36 regarding the award of expenses under Rule 37(a)(5) because expenses are not authorized under our Rules of Practice; rather, parties may follow the procedures set forth in § 1025.70 of the Rules of Practice. Because we propose to follow the Federal Rules, we also propose to omit § 1025.34(a) through (c).

    Proposed Changes to § 1025.35 (Depositions)

    For efficiency reasons and ease of practice, we propose largely to follow the Federal Rules on depositions, which are familiar to most practitioners. Specifically, the Commission proposes to revise this section to follow Rule 30 (Depositions by Oral Examination), Rule 31 (Depositions by Written Questions), and Rule 32 (Using Depositions in Court Proceedings) of the Federal Rules, with certain exceptions discussed below. We propose that requests for subpoenas continue to be governed by § 1025.38 of our Rules of Practice. We also propose that provisions in the Federal Rules governing award of attorney's fees and expenses shall not apply. Because we propose to follow the Federal Rules, we also propose to omit § 1025.35(a) through (h).

    We propose these changes because the procedures set forth in Federal Rule 30, for example, would facilitate the noticing of depositions by the parties and encourage cooperation among the litigants during the discovery process. Under our current rule, parties are required to obtain leave of the Presiding Officer to notice all depositions, and there is no limit on the number of depositions that may be noticed. Federal Rule 30 allows parties to notice depositions without leave in most circumstances, including if the parties have stipulated to the deposition and the deposition would not result in more than 10 depositions being taken by each party. In addition, a party wishing to depose a nonparty under the current rule is required to apply for a subpoena; Federal Rule 30 has no such requirement, which will expedite the discovery process. Our current rules also do not limit the length of a deposition, which can lead to protracted and costly depositions; Federal Rule 30, however, establishes a limit on the length of a deposition, limiting depositions to one 7- hour day, unless otherwise ordered by the court.

    We also propose following Federal Rule 31, titled, Depositions by Written Questions, a practice not currently authorized by our Rules of Practice. We propose this addition because this discovery tool can be more efficient and less costly than an in-person deposition, and may facilitate a more streamlined use of additional discovery methods. We additionally propose following Federal Rule 32 titled, Using Depositions in Court Proceedings because the provisions of this rule address more comprehensively than § 1025.35, the appropriate uses of depositions, the objections to such use, and the form of presentation.

    Proposed Changes to § 1025.36 (Motions to Compel Discovery)

    The Commission proposes to revise this section to include a requirement that motions to compel discovery include a certification that the movant has, in good faith, conferred or attempted to confer with the person or party failing to make disclosure. This change is consistent with the requirements in the Federal Rules (see Federal Rule 37(a)(1)), and we believe this change would encourage resolution of the issues between parties, without intervention by the Presiding Officer.

    Proposed Changes to § 1025.38 (Subpoenas)

    We propose to update this section to make it consistent with our proposed changes on electronic filing, discussed above, and for clarity.

    We would revise § 1025.38(b) to properly identify the Secretariat. In addition, we propose to amend § 1025.38(c) and (d) to clarify the content of, and application process for, subpoenas. Specifically, we propose to remove the paper filing requirement, eliminate the requirement that applications be submitted in triplicate, and delete other requirements related to paper filing.

    Additionally, in § 1025.38(e), we propose to allow subpoena service to nonparties, as set forth in § 1025.16(b)(2) through (5), which allows for service by a variety of means, but does not permit electronic service. Because nonparties may not have verified electronic addresses, and certification of receipt is not required, service of a subpoena by the other specified methods is more reliable. For parties, we propose allowing for service in any of the methods set forth in § 1025.16(b)(1) through (5). We believe these proposed changes would increase the efficiency of subpoena service because the revisions allow for multiple methods of service, and, in particular, permit electronic service among parties, where the parties have agreed to such methods of service or the Presiding Officer has permitted these methods of service. Additionally, § 1025.38(f) would permit, in addition to mail carrier service, return of service of subpoenas by commercial carrier, a change that reflects common practice today. We also propose to eliminate the requirement that a copy of the subpoena be returned to the Secretary. In addition to other minor and non-substantive changes in § 1025.38(g), we propose to clarify that a motion to quash or limit should be ruled on by the Commission as a time critical matter in accordance with the Commission Decision Making Procedures.

    Proposed Changes to § 1025.39 (Orders Requiring Witnesses To Testify or Provide Other Information and Granting Immunity).

    We propose deleting this section and other distinctions relating to the Flammable Fabrics Act (“FFA”) throughout these rules because they are no longer necessary in light of the Commission's enhanced authority set forth in section 214 of the Consumer Product Safety Improvement Act of 2008, which permits the Commission to take action under section 15 of the Consumer Product Safety Act for violations of that statute and any other Act enforced by the Commission.

    Subpart E—Hearings Proposed Changes to § 1025.41 (Hearings; General Rules)

    The Commission proposes to revise § 1025.41(a) to clarify that Commissioners and their staffs should not attend or view public hearings concerning matters that may become subject of review by the Commission as the appellate body. We also propose to revise § 1025.41(b) to clarify that adjudicative proceedings shall be held in one location, absent unusual circumstances. Based on staff experience and common practice in other agencies, we also propose to limit the duration of a proceeding to no more than 210 hours, absent a showing of good cause. We believe this provides ample time for the proper conduct of most hearings, but allows flexibility to alter the time frame if circumstances warrant. We propose other minor, non-substantive changes in § 1025.41(c) for clarity.

    Proposed Changes to § 1025.42 (Powers and Duties of Presiding Officer)

    The Commission proposes to revise § 1025.42(a)(6) to state that, in addition to procedural motions, the Presiding Officer is empowered to consider and rule on evidentiary motions and other issues, as appropriate. We propose other minor, non-substantive changes in § 1025.42(a)(3) and (b), for clarity. In proposed § 1025.42(d), we make clear that, in addition to the Commission, a Presiding Officer shall not be responsible to, or subject to the supervision of, a Commissioner or a member of a Commissioner's staff in performance of the adjudicative function.

    In § 1025.42(e), we propose to clarify that the Commission shall consider a motion to disqualify the Presiding Officer only if the matter has been decided and appealed to the Commission. In addition, we propose other minor, non-substantive changes.

    Proposed Changes to § 1025.43 (Evidence)

    The Commission proposes to supplement § 1025.43(a) to provide specific examples of the ways in which the Federal Rules of Evidence may be relaxed to best serve the interests of justice. More specifically, the proposal states that evidence constituting hearsay may be admitted if it is relevant, material, and bears satisfactory indicia or reliability so that its use is fair. In addition, we are proposing a minor, non-substantive change in § 1025.43(d)(1)(i) for uniformity. We also propose to remove an unnecessary “reserved” paragraph in § 1025.43(e) and re-designate paragraph (f) as paragraph (e).

    Proposed Changes to § 1025.44 (Expert Witnesses)

    The Commission proposes to revise § 1025.44(a) to align our rule on experts more closely with the standard set forth in Rule 702 of the Federal Rules of Evidence (Testimony by Expert Witnesses). We make this change to maximize efficiency by working within an evidentiary framework with which most practitioners are familiar and allowing the parties and Presiding Officer to be guided by case law interpreting the Federal Rules.

    We also propose revising § 1025.44(b) to make clear that the Presiding Officer has the authority to order expert testimony to be in writing and filed on the record. In addition, we propose to clarify that the Presiding Officer has the discretion to allow live testimony in lieu of a written submission. This change would be in keeping with our goal of vesting broad discretion with the Presiding Officer in the conduct of a proceeding.

    We propose to revise § 1025.44(c) and (d) to conform to our proposed revision in § 1025.44(b).

    Proposed Changes to § 1025.45 (In Camera Materials)

    We propose to revise § 1025.45(b) to correct typographical and grammatical errors, and to clarify the standard that applies to in camera treatment of documents and testimony. We also propose to move language related to the length of time for in camera treatment from § 1025.45(b) to § 1025.45(b)(3). Additionally, we propose adding language to § 1025.45(e) to make clear that in camera materials may not be released to the public until the order granting in camera treatment expires. We propose to revise § 1025.45(f) for clarity.

    Proposed Changes to § 1025.46 (Proposed Findings, Conclusions, and Order)

    The Commission proposes to revise this section to make the filing of post-hearing briefs mandatory. Under the current rule, parties may file post hearing briefs, but are not required to do so. Because we believe the public and the Presiding Officer would benefit from a concise but comprehensive summary of the matter at issue, we propose that this filing be mandatory. In addition, we propose to limit post-hearing briefs to thirty (30) pages. Currently, the rule does not impose a page limit, and we believe parties should be encouraged to file concise pleadings. We also propose to limit replies to the discretion of the Presiding Officer so that the pace of the adjudication at this juncture is not slowed unnecessarily by the filing of excessive briefing materials. We propose other non-substantive changes for clarity.

    Proposed Changes to § 1025.47 (Record)

    The Commission proposes to revise § 1025.47(a) of this section to delete the requirement for an “official court reporter of the Commission” because the Commission has no official court reporter. The revised language would require that a hearing shall be “recorded and transcribed by a court reporter under the supervision of the Presiding Officer.” We are proposing other non-substantive changes for clarity, including a revision to the appendix citation in the Federal Advisory Committee Act.

    Proposed Changes to § 1025.48 (Official Docket)

    The Commission proposes to revise this section to require that the official docket be maintained electronically, in keeping with changes we are proposing throughout our Rules of Practice to update our procedures to reflect advances in technology. We also propose to delete the statement that the docket would be available for inspection by the public during normal business hours as unnecessary because the docket would be available electronically. We propose other non-substantive changes for clarity.

    Proposed Changes to § 1025.49 (Fees)

    The Commission proposes to revise § 1025.49(a) to allow parties to modify this provision by agreement.

    Subpart F—Decision Proposed Changes to § 1025.51 (Initial Decision)

    Under current § 1025.51(a), the Presiding Officer shall endeavor to file an Initial Decision within sixty (60) days after the record closes in a case, or after the filing of post-hearing briefs, whichever is later. The Commission proposes to revise § 1025.51(a) to require the Presiding Officer to file the Initial Decision within a fixed deadline of 60 days. This change is consistent with the Commission's goal of avoiding unnecessary delay and ensuring that a matter progresses in a timely manner to serve the interests of justice.

    The current rules impose numerous interim deadlines, but do not explicitly provide for a total time limit from complaint to Initial Decision. Staff advises that most cases will take more than 1 year for the Presiding Officer to render an Initial Decision. The Commission believes that the Presiding Officer has considerable discretion in managing cases to ensure the timely and efficient resolution of proceedings, and the Commission expects that the Presiding Officer shall endeavor to make those proceedings as swift as practicable in the interest of due process and the protection of consumer health and safety.

    The administrative procedures at sister agencies such as the Securities and Exchange Commission (“SEC”), the Consumer Financial Protection Bureau (“CFPB”), and the Federal Trade Commission (“FTC”) employ other practices on ways to make adjudicatory proceedings more efficient, including a fixed time limit from issuance of complaint to evidentiary hearing as required by FTC Rule 16 CFR 3.11 (Commencement of Proceedings), a fixed time limit from complaint to initial decision as required by SEC Rule, 17 CFR 201.360(a)(2) (Initial Decision of Hearing Officer) and CFPB Rule, 12 CFR 1081.400(a) (Recommended Decision of the Hearing Officer), and changes to the rules that limit the scope of discovery available to parties in administrative proceedings as has been adopted by the SEC and CFPB. The Commission seeks comment on whether CPSC should adopt similar practices.

    We also propose to revise § 1025.51(c) to make clear that the Commission may order that an individual, other than the Presiding Officer, may make and file an Initial Decision, if the Presiding Officer is disqualified under § 1025.42(e).

    We are proposing to revise § 1025.51(d) to limit the authority of the Presiding Officer to reopen the proceedings to only those circumstances “where the interests of justice so require.” We propose this change to emphasize the need for finality and to ensure timely disposition of a matter.

    Proposed Changes to § 1025.52 (Adoption of Initial Decision)

    We are proposing a minor, non-substantive change for consistency.

    Proposed Changes to § 1025.53 (Appeal From Initial Decision)

    The Commission proposes to revise the title of § 1025.53(a) to Notices of appeal, and we propose several additional changes for clarity.

    In addition, we propose to revise § 1025.53(b) to limit appeal briefs to thirty (30) pages. Currently, the rule does not impose a page limit, and we believe parties should be encouraged to file concise pleadings. We also propose to amend § 1025.53(c) to impose the same 30-page restriction on answering briefs that applies to appeal briefs. In § 1025.53(f), we would clarify that reply briefs are not required, but if filed, they shall not exceed fifteen (15) pages.

    Proposed Changes to § 1025.55 (Final Decision on Appeal or Review)

    The Commission proposes to revise § 1025.55 to remove the word “endeavor.” By doing so, the Commission commits to issue its final decision on appeal or review within 90 days after the filing of all briefs or after receipt of transcript of the oral argument, whichever is later. We are also proposing a minor, non-substantive change in § 1025.55(a) for clarity.

    Proposed Changes to § 1025.56 (Reconsideration)

    We are proposing minor, non-substantive changes for clarity and to correct a typographical error.

    Proposed Changes to § 1025.57 (Effective Date of Order)

    The Commission proposes to revise § 1025.57(a) and (b) to clarify that Commission orders in adjudicative proceedings under the CPSA or the FFA become effective upon receipt by the Respondent.

    In § 1025.57(b)(1), we propose an additional, non-substantive change for clarity. In § 1025.57(b)(2), we propose corrections for citation errors.

    Proposed Changes to § 1025.58 (Reopening of Proceedings)

    The Commission proposes to revise § 1025.58(c)(2) for clarity.

    In proposed § 1025.58(e)(2), we make clear that the Commission may direct the Presiding Officer to conduct additional hearings if the pleadings raise substantial factual issues. We are proposing this change because as written it is unclear under whose auspices such a hearing would be conducted and recognize that such a hearing should be conducted by the Presiding Officer as the finder of fact. We further propose to clarify in this section, consistent with proposed changes to § 1025.46, to state that post hearing briefs are mandatory. We propose one other non-substantive change for clarity.

    Subpart G—Appearances, Standards of Conduct Proposed Changes to § 1025.63 (Written Appearances)

    The Commission proposes to revise § 1025.63(a) and (b) to conform the requirement for the filing of a notice of appearance to our proposed electronic filing changes to § 1025.14 of the Rules of Practice.

    In § 1025.63(b), we propose other minor, non-substantive changes for clarity.

    Proposed Changes to § 1025.65 (Persons Not Attorneys)

    The Commission proposes to revise § 1025.65(a) for clarity.

    Proposed Changes to § 1025.66 (Qualifications and Standards of Conduct)

    The Commission proposes to revise § 1025.66(d) for clarity.

    Proposed Changes to § 1025.67 (Restrictions as to Former Members and Employees)

    The Commission proposes to retitle this section to: Restrictions as to former Commission members, to align the title with the text in § 1025.67(a). We also would revise § 1025.67(a) to include additional statutory and regulatory restrictions and propose to revise § 1025.67(c) for clarity.

    Proposed Changes to § 1025.68 (Prohibited Ex Parte Communications)

    We propose to add a new § 1025.68(b) to state that, except to the extent required for disposition of ex parte matters authorized by law or by this part, ex parte prohibitions apply to a number of circumstances. Specifically, new § 1025.68(b)(1) would prohibit ex parte communications relevant to the merits of an adjudication by any interested person not employed by the CPSC to any decision maker during the pendency of a proceeding under the Rules. Under the current rule, an ex parte communication is defined as a communication concerning a matter in adjudication made to a decision-maker by any person subject to the Rules of Practice. Our proposed change, which is consistent with the APA, would broaden the ex parte prohibition to include any “interested person not employed by the Commission.” Additionally, new proposed § 1025.68(b)(2) would prohibit any decision maker from making an ex parte communication to any interested party not employed by the Commission. To conform new § 1025.68(c)(2)(i) and (ii) with our proposed new § 1025.68(b), we would omit language in those paragraphs limiting the prohibition to persons subject to these Rules of Practice and add language tracking new § 1025.68(b).

    The Commission also proposes to revise § 1025.68(d) to add paragraph (d)(3) to state that ex parte prohibitions do not apply to communications by any party to the Commission concerning a proposed settlement agreement that has been transmitted to the Commission. We are proposing this change because we believe this would allow parties to communicate information to the Commission that might not otherwise be available to the Commission.

    We also propose changes in § 1025.68(e) to clarify that the procedures for handling prohibited ex parte communications are also available to recipients of such communications who are not employed by the Commission. We make other, non-substantive changes to § 1025.68(e), as well.

    In § 1025.68(g), we propose changes to be consistent with the proposed changes to this section discussed above, and we also propose that sanctions shall apply to any person or party who makes or causes a prohibited ex parte communication to be made. As currently drafted, the provision allowing sanctions applies only to persons subject to the Rules of Practice. We propose language that would allow sanctions to be imposed on a person who, while not a party, makes a prohibited ex parte communication and subsequently becomes a party. The proposed language, which is consistent with the adjudicative rules adopted by FTC, would authorize the Presiding Officer to impose sanctions allowed under this section, if that person later becomes a party to the proceeding.

    We propose other minor, non-substantive changes for clarity.

    Proposed § 1025.69 (Separation of Functions)

    To clarify that Commission staff charged with investigative and prosecutorial responsibilities may not advise a decision maker or otherwise participate in a decision in a proceeding, we propose to add a new § 1025.69 titled, Separation of functions, setting forth the separation of functions provisions of the APA, 5 U.S.C. 554(d).

    Subpart H—Implementation of the Equal Access to Justice Act in Adjudicative Proceedings With the Commission Proposed Changes to § 1025.70 (General Provisions)

    The Commission proposes to revise this section to remove outdated and confusing references to the Equal Access to Justice Act (“EAJA”). As written, the rule substantially re-states EAJA requirements existing when the rule was adopted initially. Many elements of those requirements are no longer current. To avoid updating these rules each time an element of the EAJA is changed, we propose removing references to specific EAJA requirements and stating instead that the EAJA applies to certain adjudicative proceedings before the Commission. We propose stating generally that applications for fees and expenses may be made according to the EAJA, as interpreted by the federal courts and guidance provided by the U.S. Department of Justice (“DOJ”). Such interpretative case law and DOJ guidance provide ample direction for applicants, the Presiding Officer, and the Commission in the application for, and consideration of, a request for attorney's fees and other expenses. We do not believe our proceedings warrant particularized requirements regarding EAJA and that the guidance provided by the DOJ, and as interpreted by federal courts, would be sufficient for applicants to proceed with an EAJA claim. We note too that other federal agencies, such as the CFPB, have adopted rules of practice without reference to EAJA. Because we believe DOJ and federal court guidance is sufficient, we propose to omit language in § 1025.70(a) and the entirety of § 1025.70(b) through (h). We are also proposing several minor, non-substantive changes for clarity.

    Proposed Changes to 1025.71 (Information Required From Applicant)

    Consistent with our goal of following DOJ and federal court guidance on EAJA, we propose omitting this section.

    Proposed Changes to § 1025.72 (Procedures for Considering Applications)

    Consistent with our goal of following DOJ and federal court guidance on EAJA, we propose omitting this section.

    Proposed Changes to Appendix I to Part 1025 (Suggested Form of Final Prehearing Order)

    We are proposing to omit this appendix, which contains a suggested form for a final prehearing order, given our proposed revisions to the requirements for prehearing conferences and orders, discussed above.

    IV. Environmental Considerations

    The Commission's regulations address whether the Commission is required to prepare an environmental assessment or an environmental impact statement. 16 CFR part 1021. These regulations provide a categorical exclusion for certain CPSC actions that normally have “little or no potential for affecting the human environment.” 16 CFR 1021.5(c)(l). This proposed rule falls within the categorical exclusion.

    V. Regulatory Flexibility Analysis

    Under section 603 of the Regulatory Flexibility Act (“RFA”), when the APA requires an agency to publish a general notice of proposed rulemaking, the agency must prepare an initial regulatory flexibility analysis (“IRFA”), assessing the economic impact of the proposed rule on small entities. 5 U.S.C. 603(a). As noted, the Commission is proposing to update its Rules of Practice for Adjudicative Proceedings. Although the Commission is choosing to issue the rule through notice and comment procedures, the APA does not require a proposed rule when an agency issues rules of agency procedure and practice (5 U.S.C. 553(b)). Therefore, no IRFA is required under the RFA. Moreover, the proposed rule would not establish any mandatory requirements and would not impose any obligations on small entities (or any other entity or party).

    VI. Paperwork Reduction Act

    The Paperwork Reduction Act (“PRA”) establishes certain requirements when an agency conducts or sponsors a “collection of information.” 44 U.S.C. 3501-3520. The proposed rule would amend the Commission's Rules of Practice to adopt modern adjudicative procedures. The proposed rule would not impose any information collection requirements. The existing Rules of Practice and the proposed revision do not require or request information from firms, but rather, explain procedures for adjudicatory hearings. Thus, the PRA is not implicated in this proposed rulemaking.

    VII. Executive Order 12988 (Preemption)

    According to Executive Order 12988 (February 5, 1996), agencies must state in clear language the preemptive effect, if any, of new regulations. Section 26 of the CPSA explains the preemptive effect of consumer product safety standards issued under the CPSA. 15 U.S.C. 2075. The proposed Rules of Practice do not set consumer product safety standards. Rather, the proposed Rules of Practice is an adoption of updated rules of agency procedure and practice. Therefore, section 26 of the CPSA would not apply to this rulemaking.

    VIII. Effective Date

    In accordance with the APA's general requirement that the effective date of a rule be at least 30 days after publication of the final rule, the Commission proposes that the effective date be 30 days after the date of publication of a final rule in the Federal Register. 5 U.S.C. 553(d).

    IX. Request for Comments

    The Commission requests comments on all aspects of the proposed rule. Comments should be submitted in accordance with the instructions in the ADDRESSES section at the beginning of this document. Written comments must be received by June 13, 2016.

    List of Subjects in 16 CFR Part 1025

    Administrative practice and procedure, Consumer protection.

    For the reasons set forth in the Preamble, the Commission proposes to amend 16 CFR part 1025 to read as follows:

    PART 1025—RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS 1. The authority citation for part 1025 is revised to read as follows: Authority:

    Authority: 15 U.S.C. 45, 1192, 1194, 1197(b), 1274, 1473(c), 2064, 2066(b), 2076, 8003.

    2. Revise § 1025.1 to read as follows:
    § 1025.1 Scope of rules.

    The Rules in this part govern procedures in adjudicative proceedings relating to the provisions of sections 15(c), (d), and (f) and 17(b) of the Consumer Product Safety Act (15 U.S.C. 2064(c), (d), (f); 2066(b)), section 15 of the Federal Hazardous Substances Act (15 U.S.C. 1274), sections 3 and 8(b) of the Flammable Fabrics Act (15 U.S.C. 1192, 1197(b)), section 4(c) of the Poison Prevention Packaging Act (15 U.S.C. 1473(c)), and section 1404 of the Virginia Graeme Baker Pool and Spa Act (15 U.S.C. 8003), which are required to be determined on the record after opportunity for a public hearing. This part may also be applied to such other adjudicative proceedings as the Commission, by order, shall designate. A basic intent of the Commission in the development of these Rules has been to promulgate a single set of procedural rules which can accommodate both simple matters and complex matters in adjudication. To accomplish this objective, broad discretion has been vested in the Presiding Officer who will hear a matter being adjudicated to allow him/her to alter time limitations and other procedural aspects of a case, as required by the complexity of the particular matter involved. A major concern of the Commission is that all matters in adjudication move forward in a timely manner, consistent with the Constitutional due process rights of all parties. Therefore, the Presiding Officer should, whenever appropriate, expedite the proceedings by setting shorter time limitations than those generally applicable under this part. For example, the time limitation for discovery, as provided in § 1025.31(d), may be shortened, consistent with the extent of discovery reasonably necessary to prepare for the hearing. Except where stated otherwise, discovery matters shall be governed by the Federal Rules of Civil Procedure.

    § 1025.2 [Amended]
    3. Amend § 1025.2 by removing the words “these Rules” and adding, in their place, the words “this part”. 4. Amend § 1025.3 by: a. Redesignating paragraphs (e) through (l) as paragraphs (h) through (o); b. Adding new paragraphs (e), (f), and (g); and c. Revising newly redesignated paragraphs (i) and (n).

    The additions and revisions read as follows:

    § 1025.3 Definitions.

    (e) Electronically Stored Information (“ESI”) shall have the same meaning given to such term in the Federal Rules.

    (f) Ex parte communication shall have the meaning set forth in § 1025.68.

    (g) Federal Rules means the Federal Rules of Civil Procedure.

    (i) Party means any named person or any intervenor in any proceedings governed by this part.

    (n) Secretary or Secretariat means the Secretariat of the Consumer Product Safety Commission.

    5. Amend § 1025.11 by: a. Revising paragraphs (a) and (b)(3); and b. Adding paragraph (d).

    The revisions and addition read as follows:

    § 1025.11 Commencement of proceedings.

    (a) Notice of institution of enforcement proceedings. Any adjudicative proceedings under this part shall be commenced by the issuance of a complaint, authorized by the Commission, and signed by Complaint Counsel.

    (b) * * *

    (3) A clear and concise statement of the charges, sufficient to inform each respondent with reasonable definitiveness of the factual basis or bases of the allegations of violation or hazard.

    (d) Preliminary injunction. A judicial proceeding for a preliminary injunction pursuant to 15 U.S.C. 2064(g) shall not serve as the basis to stay any proceedings under this part.

    6. Revise § 1025.13 to read as follows:
    § 1025.13 Amendments and supplemental pleadings.

    The Presiding Officer may allow appropriate amendments and supplemental pleadings which do not unduly broaden the issues in the proceedings or cause undue delay. If any proposed amendment or supplemental pleading would have the effect of adding or removing any persons as a respondent to the complaint or adding or removing any count, or if the Presiding Officer determines that the amendments or supplemental pleadings do not fall within the scope of an authorized complaint, broaden the authority granted staff in a complaint, unduly broaden the issues in the proceedings, or would cause undue delay, the Presiding Officer shall refer such amendments or supplemental pleadings to the Commission for decision.

    7. Amend § 1025.14 by revising the section heading and paragraphs (a), (c), (d)(1), and (e) to read as follows:
    § 1025.14 Form and filing of pleadings and other documents.

    (a) Filing. Except as otherwise provided by order of the Presiding Officer, all pleadings and documents submitted to the Commission or the Presiding Officer shall be addressed to, and electronically filed with, the Secretariat and the Presiding Officer. Pleadings and documents filed electronically shall be deemed filed on the day of electronic filing; should the Presiding Officer permit by order an alternative method of filing, such order shall state the applicable date on which such filings are to be deemed filed.

    (c) Copies. Unless otherwise ordered by the Presiding Officer, a single electronic copy must be filed with each of the Secretariat and the Presiding Officer. Each copy must be clear and legible.

    (d) * * *

    (1) The original of each document filed shall be signed by a representative of record for the party or participant; or in the case of parties or participants not represented, by the party or participant; or by a partner, officer or other appropriate official of any corporation, partnership, or unincorporated association, who files an appearance on behalf of the party or participant. Documents electronically filed shall be signed electronically.

    (e) Form. (1) All documents shall be dated and shall contain the electronic address, telephone number, and mailing address of the signer.

    (2) Electronic text documents shall be filed in a format that prints on paper approximately 81/2 x 11 inches in size. Print shall be in 12-point font and double spaced, and margins shall be one inch. Electronic documents and files that cannot readily be printed, such as large spreadsheets, videos, or photographs, should be identified by format and the program or protocol required to review the information.

    (3) Documents that fail to comply with this section may be returned by the Secretariat or Presiding Officer. Electronic documents and files that cannot be opened or read may be returned by the Secretariat or Presiding Officer. For good cause shown, the Presiding Officer may allow deviation from the form prescribed in this section.

    8. Revise § 1025.15 to read as follows:
    § 1025.15 Time.

    (a) Computation of days. In computing any time period specified in this part or in any order filed in a proceeding subject to this part, the day of the event triggering the period shall not be included, but each calendar day thereafter shall be included. If the last day of the time period is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. When the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this Rule, “legal holiday” means any day designated as a legal public holiday in 5 U.S.C. 6103.

    (b) Additional time after service by mail. Whenever a party is required or permitted to do an act within a prescribed period after service of a document and the Presiding Officer permits service by mail, three (3) days shall be added to the prescribed period.

    (c) Extensions. For good cause shown, the Presiding Officer may extend any time limit prescribed or allowed by this part or by order of the Commission or the Presiding Officer, except for those sections governing the filing of interlocutory appeals and appeals from initial decisions pursuant to § 1025. 13 and those sections expressly requiring Commission action. Except as otherwise provided by law, the Commission, for good cause shown, may extend any time limit prescribed by this part or by order of the Commission or the Presiding Officer.

    (d) Stay of proceedings. If a stay of proceedings is granted by order of the Presiding Officer or the Commission, the time limits specified in this part shall be automatically tolled during the period while the stay is in effect.

    9. Revise § 1025.16 to read as follows:
    § 1025.16 Service.

    (a) Mandatory service. Every document filed with the Secretariat shall be served upon all parties to any proceedings, i.e., Complaint Counsel, respondent(s), and party intervenors, as well as the Presiding Officer. Every document filed with the Secretariat or Presiding Officer shall also be served upon each participant, if the Presiding Officer or the Commission so directs.

    (b) Service of complaint, ruling, petition for interlocutory appeal, order, or decision. A complaint, ruling, petition for interlocutory appeal, order, or decision shall be served as follows:

    (1) By electronic means. Service may be made by electronic means if ordered by the Presiding Officer or otherwise agreed by the parties;

    (2) By registered mail, certified mail or commercial carrier. A copy of the document shall be addressed to the person, partnership, corporation or unincorporated association to be served at his/her/its residence or principal office or place of business and sent by registered mail, certified mail, or commercial carrier;

    (3) By delivery to an individual or entity. A copy of the document may be delivered to the person to be served; or to a member of the partnership or limited liability company to be served; or to the president, secretary, or other executive officer, or a director of the corporation or unincorporated association to be served; or to an agent authorized by appointment or by law to receive service; or

    (4) By delivery to an address. If the document is not to be served electronically and cannot be served in person or by mail as provided in paragraph (b)(2) or (3) of this section, a copy of the document may be left at the principal office or place of business of the person, partnership, corporation, unincorporated association, or authorized agent with an officer or a managing or general agent; or it may be left with a person of suitable age and discretion residing therein, at the residence of the person or of a member of the partnership or of an executive officer, director, or agent of the corporation or unincorporated association to be served; or

    (5) By publication in the Federal Register. A respondent that cannot be served by any of the methods already described in this section may be served by publication in the Federal Register and such other notice as may be directed by the Presiding Officer or the Commission, where a complaint has issued in a class action pursuant to § 1025.18.

    (c) Service of other documents. Except as otherwise provided in paragraph (b) of this section, when service of a document starts the running of a prescribed period of time for the submission of a responsive document or the occurrence of an event, the document shall be served by electronic means unless otherwise ordered by the Presiding Officer or otherwise agreed by the parties.

    (d) Service on a representative. When a party has appeared by an attorney or other representative, service upon that attorney or other representative shall constitute service upon the party.

    (e) Certificate of service. Every document filed with the Commission and required to be served upon all parties to any proceedings, as well as participants if so directed by the Presiding Officer, shall be accompanied by a certificate of service signed by the party making service, stating that such service has been made upon each party and participant to the proceedings. Certificates of service may be in substantially the following form:

    I hereby certify that I have served the attached document upon all parties and participants of record in these proceedings by emailing, mailing postage prepaid, or delivering in person, a copy to each on ____.

    (Signature) For

    (f) Date of service. The date of service of a document shall be the date on which the document is sent electronically, deposited with the United States Postal Service, postage prepaid, or is delivered in person.

    § 1025.17 [Amended]
    10. Amend § 1025.17 by: a. Removing the words “these rules” in paragraph (a) introductory text and adding, in their place, the words “this part”; b. Removing the word “Secretary” in paragraphs (a) introductory text, (b) introductory text, and (c) and adding, in its place, the word “Secretariat”; c. Removing the words “, of these rules” in paragraph (b)(3); and d. Removing the word “peititioner's” in paragraph (d)(5) and adding, in its place, the word “petitioner's” . 11. Amend § 1025.18 by revising paragraphs (a)(1) and (f)(4) and removing the undesignated paragraph following paragraph (f)(4) to read as follows:
    § 1025.18 Class actions.

    (a) * * *

    (1) The class of respondents is so numerous or geographically dispersed that joinder of all members is impracticable;

    (f) * * *

    (4) Dealing with other procedural matters. The orders may be combined with a prehearing order under § 1025.21 and may be altered or amended as may be necessary.

    12. Revise § 1025.19 to read as follows:
    § 1025.19 Consolidation of proceedings.

    (a) Consolidation of actions. When actions involving a common question of law or fact are pending before the Presiding Officer, the Commission or the Presiding Officer may order a consolidated hearing of any or all the matters in issue in the actions; the Commission or the Presiding Officer may order the actions consolidated for any purpose; and the Commission or the Presiding Officer may make such orders concerning such consolidated proceedings as needed to avoid unnecessary cost or delay.

    (b) Motions for consolidation. A motion for consolidation may be filed by any party not later than thirty (30) days prior to the hearing. Such motion shall be served upon all parties to any proceedings in which consolidation is contemplated. The motion may include a request that the consolidated proceedings be maintained as a class action in accordance with § 1025.18. The proceedings may be consolidated to such extent and upon such terms as may be proper. Such consolidation may also be ordered upon the initiative of the Presiding Officer or the Commission. Single representatives may be designated by represented parties, intervenors, and participants with an identity of interests.

    13. Revise § 1025.21 to read as follows:
    § 1025.21 Prehearing conferences.

    (a) Preliminary meeting of the parties. As early as practicable before the prehearing scheduling conference described in paragraph (b) of this section, but in no event later than five (5) days after the answer is due to be filed by the last answering respondent, counsel for the parties shall meet to discuss the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case. The parties shall also agree, if possible, on:

    (1) A proposed discovery plan specifically addressing a schedule for depositions of fact witnesses, the production of documents and electronically stored information, and the timing of expert discovery. The parties' agreement regarding electronically stored information should include the scope of and a specified time period for the exchange of such information and the format for the discovery of such information;

    (2) A preliminary estimate of the time required for the evidentiary hearing; and

    (3) Any other matters to be determined at the prehearing conference.

    (b) Initial prehearing conference. The Presiding Officer shall hold a prehearing conference not later than 50 days after publication of the complaint in the Federal Register and upon ten (10) days' notice to all parties and participants. At the prehearing conference any or all of the following shall be considered:

    (1) The factual and legal theories of the parties;

    (2) The current status of any pending motions or petitions;

    (3) A proposed date for the evidentiary hearing, and a schedule of proceedings that is consistent with the date of the evidentiary hearing;

    (4) Steps taken to preserve evidence relevant to the issues raised by the claims and defenses;

    (5) The scope of anticipated discovery, any limitations on discovery, and a proposed discovery plan, including the disclosure of electronically stored information;

    (6) Issues that can be narrowed by agreement or by motion, suggestions to expedite the presentation of evidence at trial, and any request to bifurcate issues, claims or defenses; and

    (7) Other possible agreements or steps that may aid in the just and expeditious disposition of the proceeding and to avoid unnecessary cost.

    (c) Public notice. The Presiding Officer shall cause a notice of the first prehearing conference, including a statement of the issues, to be published in the Federal Register at least ten (10) days prior to the date scheduled for the conference.

    (d) Prehearing scheduling order. Following the first prehearing conference, the Presiding Officer shall enter an order that sets forth the results of the conference and establishes a schedule of proceedings that will permit the evidentiary hearing to commence expeditiously, including a plan for discovery, and the production of documents and electronically stored information, dates for the submission and hearing of motions, the time and place of a final prehearing conference, and other matters as appropriate.

    (e) Additional conferences. Additional prehearing conferences may be convened at the discretion of the Presiding Officer, upon notice to the parties, any participants, and to the public.

    (f) Final prehearing conference. As close to the commencement of the evidentiary hearing as practicable, the Presiding Officer shall hold a final prehearing conference, at which time deadlines for proposed stipulations as to law, fact, or admissibility of evidence, and the exchange of exhibit and witness lists shall be established. At this conference, the Presiding Officer shall also resolve any outstanding evidentiary matters or pending motions (except motions for summary decision) and establish a final schedule for the evidentiary hearing.

    (g) Final prehearing order. The Presiding Officer shall issue a final prehearing order in each case after the conclusion of the final prehearing conference. The final prehearing order should contain, to the fullest extent possible at that time, all information which is necessary for controlling the course of the hearing. The Presiding Officer may require the parties to submit a jointly proposed final prehearing order. If the complexities of the issues, extent of discovery, or good cause require that the hearing commence more than 300 days past the filing of the complaint, it shall be noted in the order.

    (h) Reporting. Prehearing conferences shall be stenographically reported as provided in § 1025.47 and shall be open to the public (except as provided in § 1025.41(a)), unless otherwise ordered by the Presiding Officer or the Commission.

    14. Revise § 1025.22 introductory text to read as follows:
    § 1025.22 Prehearing briefs.

    Not later than ten (10) days prior to the hearing, unless otherwise ordered by the Presiding Officer, the parties shall simultaneously serve and file prehearing briefs, which should set forth:

    15. Amend § 1025.23 by: a. Removing the word “Secretary” from paragraph (b) and adding, in its place, the word “Secretariat”; and b. Revising paragraphs (a) and (c).

    The revisions read as follows:

    § 1025.23 Motions.

    (a) Presentation and disposition. All motions, except disqualification motions filed under § 1025.42(e) and motions or applications related to subpoenas under § 1025.38(c), shall be addressed to the Presiding Officer, who shall rule upon them promptly, after affording an opportunity for response.

    (c) Responses and replies to motions. Within fourteen (14) days after service of any written motion or petition or within such longer or shorter time as may be designated by this part or by the Presiding Officer or the Commission, any party who opposes the granting of the requested order, ruling or action may file a written response to the motion. Failure to respond to a written motion may, in the discretion of the Presiding Officer, be considered as consent to the granting of the relief sought in the motion. Replies to responses shall be filed within ten (10) days after service of the response. No additional replies or responses shall be permitted absent leave granted by the Presiding Officer or the Commission on good cause shown. Any additional replies or responses permitted by the Presiding Officer or the Commission shall be filed within five (5) days after service of the pleading to which the reply or response relates.

    § 1025.24 [Amended]
    16. Amend § 1025.24 by: a. Adding the words “that is the subject of a proceeding under this part” at the end of paragraph (b)(1)(ii); b. Removing the period at the end of paragraph (b)(1)(iv) and adding a semicolon in its place; c. Adding paragraph (b)(1)(v); and d. Revising the last sentence of paragraph (b)(2).

    The addition and revision read as follows:

    § 1025.24 Interlocutory appeals.

    (b) * * *

    (1) * * *

    (v) Grants or denies a motion under § 1025.13 unless the Commission has issued a decision under § 1025.13.

    (2) * * * The Commission may decide the petition, or may request such further briefing or oral presentation as it deems necessary.

    17. Amend § 1025.25 by revising paragraphs (a), (b), (c), and (d) to read as follows:
    § 1025.25 Summary decisions and orders.

    (a) Motion. Any party may file a motion, with a supporting memorandum, for a Summary Decision and Order in its favor upon all or any of the issues in controversy. The motion shall be accompanied by a separate and concise statement of the material facts as to which the moving party contends there is no dispute. Complaint Counsel may file such a motion at any time after thirty (30) days following issuance of a complaint, and any other party may file a motion at any time after issuance of a complaint. Any such motion by any party shall be filed in accordance with prehearing orders issued by the Presiding Officer under § 1025.21, and shall be filed no later than thirty (30) days after the close of discovery.

    (b) Response to motion. Any other party may, within twenty (20) days after service of the motion, file a response with a supporting memorandum accompanied by a separate and concise statement of the material facts as to which the opposing party contends a genuine dispute exists.

    (c) Grounds. A Summary Decision and Order shall be granted if the particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials show that there is no genuine issue as to any material fact and that the moving party is entitled to a Summary Decision and Order as a matter of law.

    (d) Legal effect. A Summary Decision and Order upon all the issues being adjudicated shall constitute the Initial Decision of the Presiding Officer and may be appealed to the Commission in accordance with § 1025.53. A Summary Decision, interlocutory in character, may be rendered on fewer than all issues and may not be appealed prior to issuance of the Initial Decision.

    18. Revise § 1025.26 to read as follows:
    § 1025.26 Settlements.

    (a) Availability. Any party shall have the opportunity to submit an offer of settlement to the Presiding Officer.

    (b) Form. Offers of settlement shall be filed in camera in the form of a consent agreement and order, shall be signed by the respondent or respondent's representative, and may be signed by any other party. Each offer of settlement shall be accompanied by an in camera motion requesting that the Presiding Officer transmit the proposed consent agreement and order to the Commission. The motion shall outline the substantive provisions of the proposed consent agreement, and state reasons why the consent agreement should be accepted by the Commission. Offers of settlement and accompanying motions not jointly submitted shall be served simultaneously on Complaint Counsel.

    (c) Contents. An offer of settlement shall contain:

    (1) An admission of all jurisdictional facts;

    (2) An express waiver of further procedural steps and of all rights to seek judicial review or otherwise to contest the validity of the Commission order;

    (3) A statement that the allegations of the complaint are resolved by the consent agreement and order;

    (4) A description of the alleged hazard, noncompliance, or violation;

    (5) As appropriate, a listing of the acts or practices from which the respondent shall refrain and those acts or practices that the respondent shall affirmatively undertake; and

    (6) As appropriate, a detailed statement of the corrective action(s) which the respondent shall undertake. In proceedings arising under Section 15 of the Consumer Product Safety Act, 15 U.S.C. 2064, this statement shall contain all the elements of a “Corrective Action Plan,” as outlined in the Commission's Interpretation, Policy, and Procedure for Substantial Product Hazards, 16 CFR part 1115.

    (d) Transmittal. The Presiding Officer shall transmit settlement offers that meet the requirements of paragraphs (b) and (c) of this section to the Commission for its consideration unless the Presiding Officer determines the settlement offer is clearly frivolous, duplicative of offers previously made, or contrary to established Commission policy. The Presiding Officer may, but need not, recommend acceptance of offers. Any party may object to the transmittal to the Commission of an offer of settlement by filing a response opposing the motion.

    (e) Stay of proceedings. When an offer of settlement has been agreed to by all parties and has been transmitted to the Commission, the proceedings shall be stayed until the Commission has ruled on the offer of settlement. When an offer of settlement has been made and transmitted to the Commission but has not been agreed to by all parties, the proceedings shall not be stayed pending Commission decision on the offer, unless otherwise ordered by the Presiding Officer or the Commission.

    (f) Commission ruling. The Commission shall rule upon all transmitted offers of settlement. If the Commission accepts the offer, the Commission shall issue an appropriate order, which shall become effective upon issuance.

    (g) Commission rejection. If the Commission rejects an offer of settlement, the Secretariat shall give written notice of the Commission's decision to the parties and the Presiding Officer. If the proceedings have been stayed, the Presiding Officer shall promptly issue an order resuming the proceedings, with consideration to any modifications to the schedule necessitated by the stay.

    (h) Effect of rejected offer. Neither rejected offers of settlement, nor the fact of the proposal of offers of settlement are admissible in evidence.

    19. Revise § 1025.31 to read as follows:
    § 1025.31 General provisions governing discovery.

    (a) Unless otherwise provided by statute, the parties shall conduct discovery in accordance with and subject to Rule 26 of the Federal Rules, as specified in this part. Unless specified in paragraphs (a)(1) through (4) of this section or provided for in this part, the time frames set for all actions described in Rule 26 shall be set by the Presiding Officer.

    (1) Initial disclosures of information required in Federal Rule 26(a)(1)(C) shall be produced no later than 5 days after the preliminary meeting of the parties as set forth in § 1025.21(a).

    (2) Federal Rule 26(a)(2)(B) (Witnesses Who Must Provide a Written Report) shall not apply.

    (3) Federal Rule 26(c) (Protective Orders) shall apply with the following exceptions: Motions for protective orders shall be made to and decided by the Presiding Officer; Federal Rule 26(c)(3) shall not apply.

    (4) Federal Rule 26(f) (Conference of the Parties: Planning for Discovery) shall not apply. The conference of the parties and joint discovery planning required in Federal Rule 26(f) shall take place as set forth in § 1025.21, or as otherwise ordered by the Presiding Officer.

    (b) Completion of discovery. All non-expert discovery shall be completed as soon as practical but in no case longer than one hundred fifty (150) days after issuance of a complaint, unless otherwise ordered by the Presiding Officer in exceptional circumstances and for good cause shown. All discovery demands shall be made and served by a date which affords the party from whom discovery is sought the full response period provided by this part. The Presiding Officer shall establish a time frame for the completion of expert discovery in accordance with § 1025.21.

    20. Revise § 1025.32 to read as follows:
    § 1025.32 Written interrogatories to parties.

    This section shall be governed by Rule 33 of the Federal Rules.

    21. Revise § 1025.33 to read as follows:
    § 1025.33 Production of documents, electronically stored information, and tangible things; access for inspection and other purposes.

    This section shall be governed by Rule 34 of the Federal Rules, with the following exception: Requests for subpoenas shall be governed by § 1025.38.

    22. Revise § 1025.34 to read as follows:
    § 1025.34 Requests for admission.

    This section shall be governed by Rule 36 of the Federal Rules, except that Rule 37(a)(5) award of expenses shall not apply.

    23. Revise § 1025.35 to read as follows:
    § 1025.35 Depositions.

    This section shall be governed by Rules 30-32 of the Federal Rules, with the following exceptions: Requests for subpoenas shall be governed by § 1025.38; and Federal Rule 37(a)(5) award of expenses shall not apply.

    24. Revise § 1025.36 to read as follows:
    § 1025.36 Motions to compel discovery.

    If a party fails to respond to discovery, in whole or in part, the party seeking discovery may move within twenty (20) days for an order compelling an answer, or compelling inspection or production of documents, or otherwise compelling discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without action by the Presiding Officer. For purposes of this section, an evasive or incomplete response is to be treated as a failure to respond. When taking depositions, the discovering party shall continue the examination to the extent possible with respect to other areas of inquiry before moving to compel discovery.

    § 1025.37 [Amended]
    25. Amend § 1025.37(g) by removing the words “of these rules”. 26. Revise § 1025.38 to read as follows:
    § 1025.38 Subpoenas.

    (a) Availability. A subpoena shall be addressed to any person not a party for the purpose of compelling attendance, testimony, and production of documents at a hearing or deposition, and may be addressed to any party for the same purposes.

    (b) Form. A subpoena shall identify the action with which it is connected; shall specify the person to whom it is addressed and the date, time, and place for compliance with its provisions; and shall be issued by order of the Commission and signed by the Secretariat or by the Presiding Officer. A subpoena duces tecum shall specify the books, papers, documents, or other materials or data-compilations to be produced.

    (c) How obtained—(1) Content of application. An application for the issuance of a subpoena, stating reasons, shall be submitted to the Presiding Officer, who shall forward the application to the Commission.

    (2) Procedure for application. The Commission shall rule upon the application for a subpoena ex parte, by issuing an order granting or denying the application.

    (d) Issuance of a subpoena. The Commission shall issue a subpoena by authorizing the Secretariat or the Presiding Officer to sign and date the approved subpoena for transmittal to the applicant for service.

    (e) Service of a subpoena. A subpoena issued by the Commission shall be served upon the addressee as provided in § 1025.16(b)(2) through (5) and upon all parties as provided in § 1025.16(b).

    (f) Return of service. A person serving a subpoena shall promptly execute a return of service, stating the date, time, and manner of service upon the addressee. If service is effected by mail or commercial carrier, the signed return receipt or proof of delivery shall accompany the return of service. In case of failure to make service, a statement of the reasons for the failure shall be made.

    (g) Motion to quash or limit subpoena. Within five (5) days after receipt of a subpoena, the person to whom it is directed may file a motion to quash or limit the subpoena, setting forth the reasons why the subpoena should be withdrawn or why it should be limited in scope. Any such motion shall be answered within five (5) days after service and shall be ruled on by the Commission as a time critical matter, in accordance with the Commission Decision Making Procedures. The order shall specify the date, if any, for compliance with the specifications of the subpoena.

    (h) Consequences of failure to comply. In the event of failure by a person to comply with a subpoena, the Presiding Officer may take any of the actions enumerated in § 1025.37, or may order any other appropriate relief to compensate for the withheld testimony, documents, or other materials. If in the opinion of the Presiding Officer such relief is insufficient, the Presiding Officer shall certify to the Commission a request for judicial enforcement of the subpoena.

    § 1025.39 [Removed]
    27. Remove § 1025.39. 28. Amend § 1025.41 by revising paragraphs (a) through (d) to read as follows:
    § 1025.41 General rules.

    (a) Public hearings. All hearings conducted pursuant to this part shall be public unless otherwise ordered by the Commission or the Presiding Officer, except that Commissioners and their staffs shall not attend or view public hearings concerning matters that may become subject of review by the Commission as the appellate body.

    (b) Prompt completion. Hearings shall proceed with all reasonable speed and, insofar as practicable with due regard to the convenience of the parties, shall be held at one location and continue without suspension until concluded, except in unusual circumstances or as otherwise provided in this part. The hearing shall be limited to no more than 210 hours; provided that the Presiding Officer, upon a showing of good cause, may extend the number of hours for the hearing.

    (c) Rights of parties. Every party shall have the right of timely notice and all other rights essential to a fair hearing, including, but not limited to, the right to present evidence, to conduct such cross-examination as may be necessary for a full and complete disclosure of the facts, and to be heard by objection, motion, brief, and argument.

    (d) Rights of participants. Every participant shall have the right to make a written or oral statement of position and to file proposed findings of fact, conclusions of law, and a post hearing brief, in accordance with § 1025.17(b).

    29. Amend § 1025.42 by: a. Revising paragraphs (a)(3), (6), and (9), (b), (d), and (e)(2); and b. In paragraph (e)(1), removing the word “Secretary” and adding, in its place, the word “Secretariat”.

    The revisions read as follows:

    § 1025.42 Powers and duties of Presiding Officer.

    (a) * * *

    (3) To rule upon offers of proof, and receive relevant, competent, and probative evidence;

    (6) To consider and rule, orally or in writing, upon all procedural, evidentiary, and other motions and issues appropriate in adjudicative proceedings;

    (9) To take any action authorized by this part or the provisions of title 5, United States Code, sections 551-559.

    (b) Exclusion of parties by Presiding Officer. A Presiding Officer shall have the authority, for good cause stated on the record, to exclude from participation in any proceedings any party, participant, or representative who violates the requirements of § 1025.66. Any party, participant or representative so excluded may appeal to the Commission in accordance with the provisions of § 1025.24. If the representative of a party or participant is excluded, the hearing may be suspended for a reasonable time so that the party or participant may obtain another representative.

    (d) Interference. In the performance of adjudicative functions, a Presiding Officer shall not be responsible to or subject to the supervision or direction of any Commissioner or any member of a Commissioner's staff or of any officer, employee, or agent engaged in the performance of investigative or prosecuting functions for the Commission. All directions by the Commission to a Presiding Officer concerning any adjudicative proceedings shall appear on and be made a part of the record.

    (e) * * *

    (2) Whenever, for good and reasonable cause, any party considers the Presiding Officer to be disqualified to preside, or to continue to preside, in any adjudicative proceedings, that party may file with the Secretariat a motion to disqualify and remove, supported by affidavit(s) setting forth the alleged grounds for disqualification. A copy of the motion and supporting affidavit(s) shall be served by the Secretariat on the Presiding Officer whose removal is sought. The Presiding Officer shall have ten (10) days to respond in writing to such motion. However, the motion shall not stay the proceedings unless otherwise ordered by the Presiding Officer or the Commission. If the Presiding Officer does not disqualify himself/herself and the matter is appealed, the Commission shall determine the validity of the grounds alleged, either directly or on the report of another Presiding Officer appointed to conduct a hearing for that purpose and, in the event of disqualification, shall take appropriate action by assigning another Presiding Officer or requesting loan of another Administrative Law Judge through the U.S. Office of Personnel Management.

    30. Amend § 1025.43 by: a. Revising paragraphs (a) and (d)(1)(i); b. Removing paragraph (e); and c. Redesignating paragraph (f) as paragraph (e).

    The revisions read as follows:

    § 1025.43 Evidence.

    (a) Applicability of Federal Rules of Evidence. Unless otherwise provided by statute or this part, the Federal Rules of Evidence shall apply to all proceedings held pursuant to this part. However, the Federal Rules of Evidence may be relaxed by the Presiding Officer if the ends of justice will be better served by so doing. Evidence that would be admissible under the Federal Rules of Evidence is admissible in a proceeding conducted pursuant to this part. Evidence that would be inadmissible under the Federal Rules of Evidence may not be deemed or ruled to be inadmissible in a proceeding conducted pursuant to this part solely on that basis. For example, evidence that constitutes hearsay may be admitted in accordance with paragraph (c) of this section, if it is relevant, material, and bears satisfactory indicia of reliability so that its use is fair.

    (d) * * *

    (1) * * *

    (i) Generally known within the jurisdiction of the Commission; or

    31. Revise § 1025.44 to read as follows:
    § 1025.44 Expert witnesses.

    (a) Definition. A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

    (1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

    (2) The testimony is based on sufficient facts or data;

    (3) The testimony is the product of reliable principles and methods; and

    (4) The expert has reliably applied the principles and methods to the facts of the case.

    (b) Method of presenting testimony of expert witness. In lieu of oral testimony, the Presiding Officer may order that the direct testimony of an expert witness be in writing and be filed on the record and exchanged between the parties no later than ten (10) days preceding the commencement of the hearing. Such written testimony shall be incorporated into the record and shall constitute the direct testimony of that witness. Upon a showing of good cause, the party sponsoring the expert witness may be permitted to amplify any written direct testimony during the hearing.

    (c) Cross-examination and redirect examination of expert witness. Cross-examination, redirect examination, and re-cross-examination of an expert witness shall proceed in due course based upon any written testimony and any oral testimony.

    (d) Failure to file or exchange written testimony. Failure to file or exchange written testimony of expert witnesses if required by the Presiding Officer shall deprive the sponsoring party of the use of the expert witness and of the conclusions which that witness would have presented, unless the opposing parties consent or the Presiding Officer otherwise orders in unusual circumstances.

    32. Amend § 1025.45 by revising paragraphs (b) introductory text, (b)(2) and (3), (e), and (f) to read as follows:
    § 1025.45 In camera materials.

    (b) In camera treatment of documents and testimony. The Presiding Officer or the Commission may for good cause shown and based on the record, order documents or testimony offered in evidence, whether admitted or rejected, to be received and preserved in camera. The order shall include:

    (2) The reasons for granting in camera treatment; and

    (3) The terms and conditions imposed by the Presiding Official, if any, limiting access to or use of the in camera material, including the length of time the documents or testimony will be held in camera.

    (e) Public release of in camera materials. In camera materials constitute a part of the confidential records of the Commission and shall not be released to the public until the expiration of any order granting in camera treatment.

    (f) Reference to in camera materials. In the submission of proposed findings, conclusions, briefs, or other documents, all parties shall refrain from disclosing specific details of in camera materials. However, such refraining shall not preclude general references to such materials. If parties consider the inclusion of specific details of in camera materials to be necessary, those references shall be incorporated into separate proposed findings, conclusions, briefs, or other documents marked “Confidential, Contains In Camera Material,” which shall be filed in camera and become part of the in camera record. Documents filed in camera shall be served only on parties accorded access to the in camera materials by this part, the Presiding Officer, or the Commission.

    33. Revise § 1025.46 to read as follows:
    § 1025.46 Proposed findings, conclusions, and order.

    Within a reasonable time after the closing of the record and receipt of the transcript, all parties shall file, and participants may file simultaneously unless otherwise ordered by the Presiding Officer, post-hearing briefs, including proposed findings of fact and conclusions of law, as well as a proposed order. The Presiding Officer shall establish a date certain for the filing of the briefs, which shall not exceed fifty (50) days after the closing of the record except in unusual circumstances. The briefs shall be in writing and shall be served upon all parties. The briefs of all parties shall contain adequate references to the record and authorities relied upon, but shall not exceed thirty (30) pages, excluding covers, indexes, table of contents, list of citations, and list of references. Replies, if permitted by the Presiding Officer, shall be filed within fifteen (15) days of the date for the filing of briefs unless otherwise established by the Presiding Officer.

    34. Amend § 1025.47 by revising paragraph (a) to read as follows:
    § 1025.47 Record.

    (a) Reporting and transcription. Hearings shall be recorded and transcribed by a court reporter, under the supervision of the Presiding Officer. The original transcript shall be a part of the record of proceedings. Copies of transcripts are available from the reporter at a cost not to exceed the maximum rates fixed by contract between the Commission and the reporter. In accordance with Section 11 of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. app. section 11), copies of transcripts may be made by members of the public or by Commission personnel, when available, at the Secretariat at reproduction costs as provided in § 1025.49.

    35. Revise § 1025.48 to read as follows:
    § 1025.48 Official docket.

    The official docket in any adjudicatory proceedings shall be maintained electronically by the Secretariat as set forth in § 1025.14 and shall be made available to the public.

    36. Amend § 1025.49 by revising paragraph (a) to read as follows:
    § 1025.49 Fees.

    (a) Fees for deponents and witnesses. Any person compelled to appear in person in response to a subpoena or notice of deposition shall be paid the same attendance and mileage fees as are paid witnesses in the courts of the United States, in accordance with title 28, United States Code, section 1821. The fees and mileage referred to in this paragraph (a) shall be paid by the party at whose instance deponents or witnesses appear. The parties may by agreement modify this provision.

    37. Amend § 1025.51 by revising paragraphs (a), (c), and (d)(1) to read as follows:
    § 1025.51 Initial decision.

    (a) When filed. The Presiding Officer shall endeavor to file an Initial Decision with the Commission within sixty (60) days after the closing of the record or the filing of post-hearing briefs, whichever is later.

    (c) By whom made. The Initial Decision shall be made and filed by the Presiding Officer who presided over the hearing, unless otherwise ordered by the Commission due to the disqualification of the Presiding Officer pursuant to § 1025.42.

    (d) * * *

    (1) At any time prior to, or concomitant with, the filing of the Initial Decision, the Presiding Officer may reopen the proceedings for the reception of further evidence where the interests of justice so require.

    § 1025.52 [Amended]
    38. Amend § 1025.52 by removing the word “Secretary” and adding, in its place, the word “Secretariat”. 39. Amend § 1025.53 by revising paragraphs (a), (b) introductory text, (c), and (f) to read as follows:
    § 1025.53 Appeal from initial decision.

    (a) Notices of appeal. Any party may appeal an Initial Decision to the Commission by serving a notice of appeal within ten (10) days after issuance of the Initial Decision.

    (b) Appeal brief. An appeal is perfected by filing a brief within forty (40) days after service of the Initial Decision. The appeal brief must be served upon all parties. The brief shall not exceed thirty (30) pages, excluding covers, indexes, table of contents, list of citations, and list of references. The appeal brief shall contain, in the order indicated, the following:

    (c) Answering brief. Within thirty (30) days after service of the appeal brief upon all parties, any party may file an answering brief, which shall contain a subject index, with page references, and a table of cases (alphabetically arranged), textbooks, statutes, and other material cited, with page references thereto. Such brief shall present clearly the points of fact and law relied upon in support of the reasons the party has for each position urged, with specific page references to the record and legal or other materials relied upon. An answering brief shall be subject to the same page limit as the appeal brief.

    (f) Reply brief. A reply brief shall be limited to rebuttal of matters presented in answering briefs, including matters raised in cross-appeals. A reply brief may be filed and served within fourteen (14) days after service of an answering brief and shall not exceed fifteen (15) pages, excluding covers, indexes, table of contents, list of citations, and list of references.

    40. Amend § 1025.55 by: a. Removing the comma following the words “in addition” in paragraph (a); and b. Revising paragraph (c).

    The revision reads as follows:

    § 1025.55 Final decision on appeal or review.

    (c) Except as otherwise ordered by the Commission, the Commission shall file its Decision within ninety (90) days after the filing of all briefs or after receipt of transcript of the oral argument, whichever is later.

    § 1025.56 [Amended]
    41. Amend § 1025.56 by: a. Removing the word “sevice” and adding, in its place, the word “service”; and b. Adding, in the last sentence, the word “Final” before the words “Decision or Order”. 42. Amend § 1025.57 by revising paragraph (a), removing paragraph (b), and redesignating paragraph (c) as paragraph (b) to read as follows:
    § 1025.57 Effective date of order.

    (a) Orders in proceedings arising under the Consumer Product Safety Act. An order of the Commission in adjudicative proceedings under this part becomes effective upon receipt by the respondent, unless otherwise ordered by the Commission.

    43. Amend § 1025.58 by: a. Removing paragraph (b); b. Redesignating paragraphs (c) through (f) as paragraphs (b) through (e); and c. Revising newly redesignated paragraphs (b)(2) and (d)(2).

    The revisions read as follows:

    § 1025.58 Reopening of proceedings.

    (b) * * *

    (2) After effective date of order. Whenever the Commission determines that changed conditions of fact or law or the public interest may require that a Commission decision or order be altered, modified, or set aside in whole or in part, the Commission shall serve upon all parties to the original proceedings an order to show cause, stating the changes the Commission proposes to make in the decision or order and the reasons such changes are deemed necessary. Within thirty (30) days after service of an order to show cause, any party to the original proceedings may file a response. Any party not responding to the order to show cause within the time allowed shall be considered to have consented to the proposed changes.

    (d) * * *

    (2) Factual issues. When the pleadings raise substantial factual issues, the Commission may direct the Presiding Officer to conduct such additional hearings as it deems appropriate. Upon conclusion of the hearings, and including the filing of post-hearing briefs containing proposed findings of fact and conclusions of law, as well as a proposed order, the Presiding Officer shall issue a Recommended Decision, including proposed findings and conclusions, and the reasons therefor, as well as a proposed Commission order. If the Presiding Officer recommends that the Commission's original order be reopened, the proposed order shall include appropriate provisions for the alteration, modification or setting aside of the original order. The record and the Presiding Officer's Recommended Decision shall be certified to the Commission for final disposition of the matter.

    44. Revise § 1025.63 to read as follows:
    § 1025.63 Written appearances.

    (a) Filing. Any person who appears in any proceedings shall file a written notice of appearance, stating for whom the appearance is made and the name, electronic address, mailing address, and telephone number of the person making the appearance and the date of the commencement of the appearance. The appearance shall be made a part of the record.

    (b) Withdrawal. Any person who has previously appeared in any proceedings may withdraw his/her appearance by filing a written notice of withdrawal of appearance with the Secretariat. The notice of withdrawal of appearance shall state the name, electronic address, mailing address, and telephone number (including area code) of the person withdrawing the appearance, for whom the appearance was made, and the effective date of the withdrawal of the appearance. Such notice of withdrawal shall be filed within five (5) days of the effective date of the withdrawal of the appearance.

    § 1025.65 [Amended]
    45. Amend § 1025.65 by: a. Removing the word “files” from paragraph (a) and adding, in its place, the word “provides”; and b. Removing the word “Secretary” in paragraph (a) and adding, in its place, the word “Secretariat”.
    § 1025.66 [Amended]
    46. Amend § 1025.66 by removing the words “of these rules” from paragraph (d). 47. Amend § 1025.67 by: a. Revising the section heading and paragraphs (a) and (b); and b. Removing the word “Secretary” in paragraph (c) introductory text and adding, in its place, the word “Secretariat”.

    The revisions read as follows:

    § 1025.67 Restrictions as to former Commission members and employees.

    (a) Generally. Except as otherwise provided in paragraph (b) of this section, the post-employment restrictions applicable to former Commission members and employees, including but not limited to those referenced at 16 CFR 1030.101, 5 CFR part 2641, 18 U.S.C. 207, and, as applicable, Executive Order 13490, shall govern the activities of former Commission members and employees in adjudicative matters connected with their former duties and responsibilities.

    (b) Participation as witness. A former member or employee of the Commission may testify in any proceeding subject to this part concerning his/her participation in any Commission activity. This section does not constitute a waiver by the Commission of any objection provided by law to testimony that would disclose privileged or confidential material. The provisions of 18 U.S.C. 1905 prohibiting the disclosure of trade secrets also applies to testimony by former members and employees.

    48. Revise § 1025.68 to read as follows:
    § 1025.68 Prohibited ex parte communications.

    (a) Applicability. This section is applicable during the period commencing with the date of issuance of a complaint and ending upon final Commission action in the matter.

    (b) Except as set forth in paragraph (d) of this section, ex parte communications in any form that are relevant to the merits of any proceedings under this part are prohibited:

    (1) By any interested person not employed by the Commission to any decision-maker; or

    (2) By a decision maker to any interested person not employed by the Commission.

    (c) Definitions—(1) Decision-maker, as used in this section, shall include: Those Commission personnel who render decisions in adjudicative proceedings under this part, or who advise officials who render such decisions, including:

    (i) The Commissioners and their staffs;

    (ii) The Administrative Law Judges and their staffs;

    (iii) The General Counsel and his/her staff, unless otherwise designated by the General Counsel.

    (2) Ex parte communication. Any communication concerning a matter that is the subject of proceedings under this part that is made by an interested person not employed by the Commission to a decision-maker or by a decision-maker to an interested person not employed by the Commission, which is:

    (i) Written and not served on all parties; or

    (ii) Oral and without advance notice to all parties to the proceedings and opportunity for them to be present.

    (d) Permissible ex parte communications. The following communications shall not be prohibited under this section.

    (1) Ex parte communications authorized by statute or by this part. (See, for example, § 1025.38 which governs applications for the issuance of subpoenas.)

    (2) Any staff communication concerning judicial review or judicial enforcement in any matter pending before or decided by the Commission.

    (3) Communications by any party to the Commission concerning a proposed settlement agreement that has been transmitted to the Commission.

    (e) Procedures for handling prohibited ex parte communication—(1) Prohibited written ex parte communication. To the extent possible, a prohibited written ex parte communication received by any Commission employee or interested person not employed by the Commission shall be forwarded to the Secretariat or Presiding Officer, as appropriate. A prohibited written ex parte communication which reaches a decision-maker shall be forwarded by the decision-maker to the Secretariat or the Presiding Officer, as appropriate. If the circumstances in which a prohibited ex parte written communication was made are not apparent from the communication itself, a statement describing those circumstances shall be forwarded with the communication.

    (2) Prohibited oral ex parte communication. (i) If a prohibited oral ex parte communication is made to a decision-maker or interested person not employed by the Commission, he/she shall advise the person making the communication that the communication is prohibited and shall terminate the discussion; and

    (ii) The recipient of the communication shall forward to the Secretariat or the Presiding Officer, as appropriate, a signed and dated statement containing such of the following information as is known to him/her.

    (A) The title and docket number of the proceedings;

    (B) The name and address of the person making the communication and his/her relationship (if any) to the parties and/or participants to the proceedings;

    (C) The date and time of the communication, its duration, and the circumstances (e.g., telephone call, personal interview, etc.) under which it was made;

    (D) A brief statement of the substance of the matters discussed; and

    (E) Whether the person making the communication persisted in doing so after being advised that the communication was prohibited.

    (3) Filing. All communications and statements forwarded to the Secretariat or Presiding Officer under this section shall be placed in a public file which shall be associated with, but not made a part of, the record of the proceedings to which the communication or statement pertains.

    (4) Service on parties. The Secretariat or the Presiding Officer, as appropriate, shall serve a copy of each communication and statement forwarded under this section on all parties to the proceedings. However, if the parties are numerous, or if the Secretary or Presiding Officer, as appropriate, determine that service of the communication or statement would be unduly burdensome, he/she, in lieu of service, may notify all parties in writing that the communication or statement has been made and filed and that it is available for inspection and copying.

    (5) Service on maker. The Secretariat or the Presiding Officer, as appropriate, shall forward to the person who made the prohibited ex parte communication a copy of each communication or statement filed under this section.

    (f) Effect of ex parte communications. No prohibited ex parte communication shall be considered as part of the record for decision unless introduced into evidence by a party to the proceedings.

    (g) Sanctions. A person or party who makes a prohibited ex parte communication, or who encourages or solicits another to make any such communication, may be subject to sanctions including but not limited to exclusion from the proceedings and an adverse ruling on the issue which is the subject of the prohibited communication. A person, not a party to the proceeding, who makes or causes to be made an ex parte communication prohibited by paragraph (b) of this section shall be subject to all sanctions provided in this section if such person subsequently becomes a party to the proceeding.

    Subpart H—Implementation of the Equal Access to Justice Act in Adjudicative Proceedings With the Commission 49. The authority citation for part 1025, subpart H, is revised to read as follows: Authority:

    5 U.S.C. 504, 551 et seq.

    50. Add § 1025.69 to subpart H to read as follows:
    § 1025.69 Separation of functions.

    An employee or agent engaged in the performance of investigative or prosecuting functions for the Commission in a case, other than a Commissioner, may not, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review of the recommended decision, except as witness or counsel in public proceedings.

    51. Revise § 1025.70 to read as follows:
    § 1025.70 General provisions.

    The Equal Access to Justice Act, 5 U.S.C. 504 (called “the EAJA” in this subpart), provides for the award of attorney fees and other expenses to eligible persons who are parties to certain adversary adjudicative proceedings before the Commission. Applications for such fees and expenses may be made according to the EAJA, as interpreted by the federal courts and guidance provided by the U.S. Department of Justice.

    1025.71 and 1025.72 and Appendix I to Part 1025 [Removed]
    52. Remove §§ 1025.71 and 1025.72 and appendix I to part 1025. Dated: April 5, 2016. Todd A. Stevenson, Secretary, Consumer Product Safety Commission.
    [FR Doc. 2016-08125 Filed 4-12-16; 8:45 am] BILLING CODE 6355-01-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-133673-15] RIN 1545-BN07 Deemed Distributions Under Section 305(c) of Stock and Rights to Acquire Stock AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    This document contains proposed regulations regarding deemed distributions of stock and rights to acquire stock. The proposed regulations would resolve ambiguities concerning the amount and timing of deemed distributions that are or result from adjustments to rights to acquire stock. The proposed regulations also would provide additional guidance to withholding agents regarding their current withholding and information reporting obligations under chapters 3 and 4 with respect to these deemed distributions. The proposed regulations would affect corporations issuing rights to acquire stock, their shareholders and holders of these rights, and withholding agents with respect to these deemed distributions.

    DATES:

    Written or electronic comments and requests for a public hearing must be received by July 12, 2016.

    ADDRESSES:

    Send submissions to: CC:PA:LPD:PR (REG-133673-15), Room 5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC, 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-133673-15), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, 20224 or sent electronically, via the Federal eRulemaking Portal at www.regulations.gov (indicate IRS and REG-133673-15).

    FOR FURTHER INFORMATION CONTACT:

    Concerning the proposed regulations under section 305, Maurice M. LaBrie, (202) 317-5322; concerning the proposed regulations under sections 860G, 861, 1441, 1461, 1471, and 1473, Subin Seth, (202) 317-6942; concerning the proposed regulations under section 6045B, Pamela Lew, (202) 317-7053; concerning submission of comments, contact Regina Johnson, (202) 317-6901 (not toll-free numbers).

    SUPPLEMENTARY INFORMATION:

    Background and Explanation of Provisions 1. Overview

    This document contains proposed regulations that amend 26 CFR part 1 under sections 305, 860G, 861, 1441, 1461, 1471, 1473, and 6045B of the Internal Revenue Code of 1986 (Code) concerning deemed distributions that are or result from adjustments to rights to acquire stock.

    Final regulations under section 305 were published in the Federal Register on July 12, 1973 (TD 7281, 38 FR 18531), and amendments to those final regulations were published in the Federal Register on October 15, 1974 (TD 7329, 39 FR 36860), and in the Federal Register on December 21, 1995 (TD 8643, 60 FR 66134).

    Final regulations under sections 1441 and 1461 were published in the Federal Register on October 14, 1997 (TD 8734, 62 FR 53387), and the following amendments to those final regulations were published in the Federal Register on: December 31, 1998 (TD 8804, 63 FR 72187); December 30, 1999 (TD 8856, 64 FR 73412); May 22, 2000 (TD 8881, 65 FR 32186); August 1, 2006 (TD 9272, 71 FR 43366); July 14, 2008 (TD 9415, 73 FR 40172) (corrected on August 6, 2008 (73 FR 45612)); January 23, 2012 (TD 9572, 77 FR 3109); December 5, 2013 (TD 9648, 78 FR 73081); March 6, 2014 (TD 9658, 79 FR 12726) (corrected on July 1, 2014 (79 FR 37175)); and, September 18, 2015 (TD 9734, 80 FR 56866). Final regulations under sections 1471 and 1473 were published in the Federal Register on January 28, 2013 (TD 9610, 78 FR 5874) (corrected on September 10, 2013 (78 FR 55202)), and the amendments to those final regulations were published as temporary regulations in the Federal Register on March 6, 2014 (TD 9657, 79 FR 12812) (corrected on July 1, 2014 (79 FR 37175)).

    Final regulations under section 6045B were published in the Federal Register on October 18, 2010 (TD 9504, 75 FR 64072), and amendments to those final regulations were published in the Federal Register on April 18, 2013 (TD 9616, 78 FR 23116).

    2. Amount and Timing of Deemed Distributions Under Section 305(c) A. Application of Section 305(b) and (c) Generally

    Section 305 and the regulations thereunder apply to actual and deemed distributions by a corporation of its own stock and rights to acquire its own stock. Section 305(a) provides the general rule that the receipt of these distributions is not included in the gross income of the recipient; however, under section 305(b)(1) through (b)(5) certain actual and deemed distributions of stock and stock rights are treated as distributions of property to which section 301 applies. For example, under section 305(b)(2), if a distribution (or series of distributions) by a corporation has the result of a receipt of property by some shareholders and an increase in the proportionate interests of other shareholders in the assets or earnings and profits of the corporation, all the distributions are treated as distributions of property to which section 301 applies.

    Section 305(c) authorizes the Secretary to prescribe regulations to treat changes in the conversion ratio of instruments convertible into stock and other events having similar effects as distributions to shareholders whose proportionate interests in the assets or earnings and profits of the corporation are increased by such events.

    Under section 305(d)(1) and current § 1.305-1(d), for purposes of section 305 and the regulations thereunder, the term stock includes rights to acquire stock, and under section 305(d)(2), for purposes of section 305(b) and (c) and the regulations thereunder, the term shareholder includes a holder of rights to acquire stock. For purposes of this preamble:

    The term actual shareholder means a holder of stock (not including rights to acquire stock).

    The term deemed shareholder means a holder of a right to acquire stock.

    The term deemed distribution means a transaction or event, other than an actual distribution of stock, money, or other property, that is a distribution under section 305(b) and (c).

    The term applicable adjustment means an adjustment to a right to acquire stock, including an increase or reduction in conversion ratio, conversion price, option price, or number of shares the holder would receive upon conversion or exercise.

    The term right to acquire stock means any right to acquire stock, whether pursuant to a convertible instrument (such as a debt instrument that is convertible into shares of stock), a warrant, subscription right, or stock right issued by the corporation that issued or will issue the underlying stock, or any other right to acquire stock of the corporation issuing such right (whether settled in stock or in cash).

    Under current § 1.305-1(b)(1), when a distribution of stock (including a right to acquire stock) is a distribution of property to which sections 305(b) and 301 apply, the amount of the distribution is the fair market value, on the date of the distribution, of the stock or right to acquire stock that is distributed.

    B. Application of Section 305(b) and (c) to Adjustments to Rights To Acquire Stock

    A corporation may issue rights to acquire its stock in a number of forms, including warrants, subscription rights, options, convertible instruments that give the holder a right to convert the instruments into shares of stock in the issuing corporation, and similar instruments. In any of these forms, rights to acquire stock may provide for applicable adjustments that grant deemed shareholders economic benefits that correspond to distributions of stock, cash, or other property made to actual shareholders. Similarly, rights to acquire stock may provide for adjustments to prevent actual shareholders' interests from being diluted as a result of distributions of stock, cash, or other property to deemed shareholders (that is, holders of rights to acquire stock).

    An applicable adjustment to a convertible instrument may consist of an increase in the number of shares of stock a holder would receive upon conversion. Similarly, an applicable adjustment to a warrant, subscription right, stock right, option, or similar right to acquire stock may consist of an increase in the number of shares the holder would receive upon exercise. In either situation, the applicable adjustment may have the effect of increasing the deemed shareholders' proportionate interests in the assets or earnings and profits of the corporation. If this increase has a result described in section 305(b), then under section 305(c) the applicable adjustment is a deemed distribution to the deemed shareholder, and section 301 applies to the deemed distribution.

    Under current § 1.305-7(b)(1), an applicable adjustment made pursuant to a bona fide, reasonable adjustment formula that has the effect of preventing dilution of a shareholder's interest is not a deemed distribution of stock to which sections 305(b) and 301 apply. However, also under current § 1.305-7(b)(1), an applicable adjustment to compensate for a distribution of cash or property to actual shareholders that is taxable under section 301, 356(a)(2), 871(a)(1)(A), 881(a)(1), 852(b), or 857(b) is not considered as made pursuant to such a bona fide, reasonable adjustment formula, and therefore may be a distribution to which sections 305(b) and 301 apply.

    The Treasury Department and the IRS have concluded that, under section 305(b) and (c) and the regulations thereunder, it is clear that an applicable adjustment is a deemed distribution to which section 301 applies, if: (i) The applicable adjustment increases the proportionate interest of an actual shareholder or a deemed shareholder in the corporation's assets or earnings and profits; (ii) such increase in proportionate interest has a result described in section 305(b); and (iii) the anti-dilution exception of § 1.305-7(b)(1) does not apply. For example, it has been the position of the Treasury Department and the IRS for over forty years that, under section 305(b) and (c) and the regulations thereunder, an increase in the conversion ratio of a convertible debt instrument may be treated as a deemed distribution to the deemed shareholder that holds the instrument, and, if so treated, section 301 applies to the deemed distribution. See Rev. Rul. 75-513 (1975-2 CB 114) (section 301 applied to deemed distribution where conversion ratio of convertible debentures increased due to payment of cash dividend to common shareholders); and Rev. Rul. 76-186 (1976-1 CB 86) (same; basis of the convertible debentures was increased by the value of the deemed distribution); cf. Rev. Rul. 77-37 (1977-1 CB 85) (no deemed distribution because anti-dilution exception of § 1.305-7(b) applied where distribution to actual shareholders was tax-free under section 355).

    The current regulations are unclear, however, as to the amount of a deemed distribution to a deemed shareholder. The current regulations may reasonably be interpreted as providing either that such a deemed distribution is treated as a distribution of a right to acquire stock (the amount of which is the fair market value of the right), or that such a distribution is treated as a distribution of the actual stock to which the right relates (the amount of which is the fair market value of the stock). Accordingly, for deemed distributions to deemed shareholders occurring before final regulations are published, the IRS will not challenge either position.

    The current regulations are also unclear as to the timing of such a distribution. Under the proposed regulations, such a distribution generally would be deemed to occur at the time the applicable adjustment occurs, in accordance with the instrument setting forth the terms of the right to acquire stock, but in no event later than the date of the distribution of cash or property that results in the deemed distribution (taking into account § 1.305-3(b)).

    These proposed regulations would amend the current regulations under section 305(b) and (c) only to clarify the amount and timing of such deemed distributions, not the fact of their occurrence, which is clear under current law.

    C. Summary of Proposed Regulations i. Amount of Deemed Distributions

    After studying this area, the Treasury Department and the IRS have concluded that a deemed distribution of a right to acquire stock is more accurately viewed as a distribution of additional rights to acquire stock, the amount of which is the fair market value of the right.

    Under the terms of a convertible instrument, a distribution of cash or property to actual shareholders may increase the number of shares the holder of the convertible instrument would receive upon conversion. Similarly, a distribution of cash or property to actual shareholders may increase the number of shares the holder of other rights to acquire stock, such as warrants or options, would receive upon exercise. In either case, the increase is an applicable adjustment and a deemed distribution of additional rights to acquire stock to the holders of the rights to acquire stock. Under the proposed regulations, the amount of the deemed distribution would be the excess of (i) the fair market value of the right to acquire stock immediately after the applicable adjustment over (ii) the fair market value of the right to acquire stock without the applicable adjustment. In determining the fair market value of a right to acquire stock, any particular facts pertaining to the deemed shareholder's rights, including the number of actual shares of stock or rights to acquire stock held by such deemed shareholder, would be disregarded.

    Also, under the terms of a convertible debt instrument or other right to acquire stock, a payment of cash or property to the holder may cause a reduction in the number of shares the holder would receive upon conversion or exercise. Such a reduction is an applicable adjustment that increases the actual shareholders' proportionate interests in the assets or earnings and profits of the corporation. Thus, the applicable adjustment results in a deemed distribution of stock to the actual shareholders, and section 301 applies to the deemed distribution. Under the proposed regulations, the amount of this deemed distribution would be the fair market value of the stock deemed distributed, determined in accordance with § 1.305-3(e), Examples 8 and 9 (relating to deemed distributions to shareholders resulting from certain redemptions of stock from other shareholders). See also Tax Revenue Act of 1969: Hearings on H.R. 13270 Before the House Ways and Means Comm., 91st Cong. 1st Sess., pt. 14, 5196-98 (1969).

    ii. Timing of Deemed Distributions

    When an applicable adjustment is or results in a deemed distribution under proposed § 1.305-7(c)(1) or (2), the deemed distribution occurs at the time such applicable adjustment occurs, in accordance with the instrument setting forth the terms of the right to acquire stock, but in no event later than the date of the distribution of cash or property that results in the deemed distribution (taking into account § 1.305-3(b)). For such an applicable adjustment relating to a right to acquire publicly-traded stock, if the instrument setting forth the terms of such right does not set forth the date and time the applicable adjustment occurs, the deemed distribution would occur immediately prior to the opening of business on the ex-dividend date for the distribution of cash or property that results in the deemed distribution. For such an applicable adjustment relating to a right to acquire non-publicly traded stock, if the instrument setting forth the terms of such right does not set forth the date and time the applicable adjustment occurs, the deemed distribution occurs on the date that a holder is legally entitled to the distribution of cash or property that results in the deemed distribution.

    3. Withholding Under Chapters 3 and 4 on Deemed Distributions Under Section 305(c)

    This section provides a discussion of the proposed rules regarding deemed distributions under section 305(c). Section 4 of the preamble provides a discussion of the proposed rules regarding substitute dividend payments that are deemed payments determined with respect to a deemed distribution under section 305(c). The proposed rules that would apply for deemed payments are analogous to the proposed rules that would apply to deemed distributions.

    A. Background

    Sections 1441 and 1442 (referred to herein as “chapter 3”) require all persons having the control, receipt, custody, disposal, or payment of items of income subject to withholding of any nonresident alien, foreign partnership, or foreign corporation to withhold tax at a 30-percent rate unless a reduced rate of withholding applies. Amounts subject to withholding include amounts from sources within the United States that are fixed or determinable annual or periodical income, which generally includes, among other things, interest, dividends, and similar types of investment income. § 1.1441-2(b)(1)(i). Under § 1.1441-2(e)(1), “a payment” is considered made to a person “if that person realizes income whether or not such income results from an actual transfer of cash or other property.” For this purpose, a payment is considered made when the amount would be includible in the income of the beneficial owner under the U.S. tax principles governing the cash basis method of accounting. § 1.1441-2(e)(1).

    On March 18, 2010, the Hiring Incentives to Restore Employment Act of 2010, Public Law 111-147 (H.R. 2847), added chapter 4 to the Code (sections 1471 through 1474, commonly known as “FATCA”). Chapter 4 generally requires a withholding agent to withhold tax at a 30-percent rate on a “withholdable payment” (as defined in § 1.1473-1(a)) made to a foreign financial institution (FFI) unless the FFI has entered into an agreement described in section 1471(b) to obtain status as a participating FFI or the FFI is deemed to have satisfied the requirements of section 1471(b). Chapter 4 also generally requires a withholding agent to withhold tax at a 30-percent rate on a withholdable payment made to a nonfinancial foreign entity (NFFE) unless the NFFE has provided information to the withholding agent with respect to the NFFE's substantial U.S. owners or has certified that it has no such owners. See section 1472.

    These proposed regulations would provide guidance to withholding agents regarding their obligations to withhold under chapters 3 and 4 on deemed distributions under section 305(c). Withholding agents have commented that ambiguities in the current law have made it difficult for them to satisfy their withholding obligations. In particular, withholding agents have commented that these deemed distributions often occur when there is no cash payment that corresponds to the deemed distribution, which makes it difficult for them to satisfy their withholding obligation on the date of the deemed distribution. In addition, withholding agents commented that they often lack knowledge of the fact that a deemed distribution on a security has been made and are therefore unable to withhold on the date of the deemed distribution.

    B. Amendments to Chapter 3 i. Withholding on Deemed Distributions, and New Exception for Deemed Distributions on Specified Securities

    Proposed § 1.1441-2(d)(4)(i) would clarify that a withholding agent has an obligation to withhold on a deemed distribution (as defined in § 1.305-1(d)(7)) that is made on a security. Proposed § 1.1441-7(a)(4) would clarify that an issuer of a security upon which a deemed distribution is made and any person that holds directly or indirectly (for example, through an account maintained for an intermediary) a security on behalf of the beneficial owner of the security, or a flow-through entity that owns directly or indirectly (through another flow-through entity) a security, is considered to have custody of or control over the deemed distribution made on the security and, therefore, is a withholding agent with respect to the distribution.

    Under current § 1.1441-2(d)(1), a withholding agent does not have an obligation to withhold on a payment when it lacks control over, or custody of, money or property of the recipient, or knowledge of the facts giving rise to the payment (the general exception). This general exception does not apply when, in relevant part, the payment is a distribution with respect to stock. The proposed regulations, however, would allow a withholding agent (other than the issuer of the specified security) to benefit from a new exception to withholding in proposed § 1.1441-2(d)(4) for deemed distributions (as defined in § 1.305-1(d)(7)) of stock or a right to acquire stock on a specified security (as defined in § 1.6045-1(a)(14)). Under this new exception, a withholding agent (other than the issuer of the specified security) would have an obligation to withhold on such a deemed distribution only if, before the due date (not including extensions) for filing Form 1042, Annual Withholding Tax Return for U.S. Source Income of Foreign Persons, with respect to the calendar year in which the deemed distribution occurred, either (i) the issuer meets its reporting requirements under § 1.6045B-1 (by furnishing an issuer statement or publicly reporting the information required under that section) or (ii) the withholding agent has actual knowledge that a deemed distribution has occurred, in which case the obligation to withhold would not arise until January 15 of the year following the calendar year of the deemed distribution.

    ii. When and How To Withhold

    Once the requirements of proposed § 1.1441-2(d)(4)(i) have been satisfied, a withholding agent would have an obligation to withhold on a deemed distribution. Except as provided in § 1.1441-5 regarding the time to withhold for partnerships and trusts, under proposed § 1.1441-2(d)(4)(ii), a withholding agent would be required to satisfy its withholding obligation by withholding on the earliest of (i) the date on which a future cash payment is made with respect to the security; (ii) the date on which the security is sold, exchanged, or otherwise disposed of (including a transfer of the security to another account not maintained by the withholding agent or a termination of the account relationship); or (iii) the due date (not including extensions) for filing Form 1042 with respect to the calendar year in which the deemed distribution occurred. Under this approach, a withholding agent that continues to directly or indirectly hold or own the security when the requirements of proposed § 1.1441-2(d)(4)(i) are satisfied generally would be able to satisfy its withholding obligation by withholding on future cash payments on the security (for example, an interest payment on a convertible bond). If, however, the security is disposed of before sufficient future cash payments have been made on the security, the withholding agent would be required to withhold at the time of disposition and generally would be expected to do so by, for example, withholding on the proceeds from the disposal, liquidating other property held in custody for the beneficial owner, or obtaining other funds directly or indirectly from the beneficial owner to satisfy the withholding.

    If there are not sufficient future cash payments on the security and the security has not been disposed of or transferred before the due date (not including extensions) for filing Form 1042 with respect to the calendar year in which the deemed distribution occurred, then, to avoid having to pay the tax out of the withholding agent's own funds, the withholding agent may apply current § 1.1461-2(b) in order to collect the underwithheld amount. Under these rules, the withholding agent can satisfy the tax by withholding on other cash payments made to the same beneficial owner or by liquidating other property held in custody for the beneficial owner or over which it has control. The proposed regulations would amend current § 1.1461-2(b) to clarify that a withholding agent may obtain the property from which to withhold under these rules through additional contributions obtained directly or indirectly from the beneficial owner. The proposed regulations also would add a sentence to current § 1.1461-2(b) to clarify that a withholding agent that satisfies its obligation to withhold under § 1.1461-2(b) will not be subject to any penalties for failure to deposit or failure to pay under sections 6656, 6672, and 7202 when it deposits the amounts obtained in this manner by the due date (not including extensions) for filing Form 1042 with respect to the calendar year in which the deemed distribution occurred. These clarifications reflect the IRS interpretation of current § 1.1461-2(b) in applying these penalties, and thus no penalties will be imposed for withholding agents that apply these rules to satisfy their obligations to withhold before the effective date of these regulations.

    When the requirements of proposed § 1.1441-2(d)(4)(i) are satisfied after a withholding agent has terminated its relationship with the beneficial owner of the security, the withholding agent would remain liable for any underwithheld amount with respect to the deemed distribution. In order to avoid having to pay the tax due out of the withholding agent's own funds, before terminating an account relationship, a withholding agent should make arrangements with the beneficial owner to ensure that the withholding agent can satisfy any tax due, such as by retaining funds or other property of the owner.

    iii. Foreign Entities Assuming Withholding Responsibilities

    Proposed § 1.1441-2(d)(4)(iii) would provide that a withholding agent may treat certain foreign entities (qualified intermediaries, withholding foreign partnerships, withholding foreign trusts, and U.S. branches treated as U.S. persons) as assuming primary chapter 3 withholding responsibilities for a deemed distribution on a specified security only if (i) the withholding agent provides the foreign entity with a copy of the issuer statement described in § 1.6045B-1(b)(1) within 10 days of the issuer furnishing the statement to the holder of record or its nominee, or (ii) the issuer has met the public reporting requirements under § 1.6045B-1(a)(3). The foreign entity would have an obligation to withhold on the deemed distribution only if it receives a copy of the issuer statement or if the issuer has met the public reporting requirements by the due date (not including extensions) for filing Form 1042 with respect to the calendar year in which the deemed distribution occurred. A withholding agent that fails to provide a copy of the issuer statement to a foreign entity (in the absence of public reporting) would not be permitted to treat the foreign entity as having assumed primary withholding responsibilities for the deemed distribution and would therefore have to withhold and report based on the information that it has regarding the recipient of the deemed distribution. The purpose of this proposed rule is to ensure that foreign entities that assume primary withholding responsibilities for deemed distributions will possess the information described in § 1.6045B-1 to meet their withholding and information reporting obligations, as these entities (or their nominees) may not be holders of record that otherwise would receive the issuer statement described in § 1.6045B-1(b)(1).

    iv. Reliance on Issuer Information Reporting

    Under proposed § 1.1441-3(c)(5), a withholding agent (other than the issuer of the specified security) would be permitted to rely on the information that an issuer provides on an issuer statement described in § 1.6045B-1(b)(1) or on a public Web site described in § 1.6045B-1(a)(3) to determine the proper amount of withholding on a deemed distribution on a specified security unless it knows that the information is incorrect or unreliable. Additionally, a foreign entity that has assumed primary withholding responsibilities would be permitted to rely on the copy of the issuer statement described in § 1.6045B-1(b)(1) that it receives from another withholding agent under the circumstances described in proposed § 1.1441-2(d)(4)(iii) unless it knows that the information is incorrect or unreliable.

    v. Other Changes to Current § 1.1441-2(d)(1)

    The proposed regulations would add language to § 1.1441-2(d)(1) to clarify that a withholding agent does not lack control over money or property if it directs another person to make a payment, and that a withholding agent does not lack knowledge of the facts that give rise to a payment merely because the withholding agent does not know the character or source of the payment for U.S. tax purposes. The proposed regulations also would add an example to § 1.1441-2(d)(1) of when a withholding agent lacks knowledge of the facts that give rise to a payment. These clarifications and the example are consistent with similar rules in current § 1.1471-2(a)(4)(i) that apply for chapter 4 purposes.

    The proposed regulations also would make nonsubstantive changes to reorganize the structure of current § 1.1441-2(d)(1).

    C. Amendments to Chapter 4

    The proposed regulations would modify the regulations under chapter 4 to provide guidance similar to the rules described in proposed §§ 1.1441-2(d)(1), 1.1441-2(d)(4), 1.1441-3(c)(5), and 1.1441-7(a)(4) for withholding on a deemed distribution (as defined in § 1.305-1(d)(7)) that is a withholdable payment under chapter 4. The amendment to proposed § 1.1461-2(b) that clarifies that a withholding agent may obtain additional contributions of property directly or indirectly from a beneficial owner and the new sentence added to proposed § 1.1461-2(b) regarding penalties also would apply to withholding agents adjusting underwithholding under chapter 4 through cross-reference in § 1.1474-2(b). The proposed regulations also would make nonsubstantive changes to reorganize the structure of current § 1.1471-2(a)(4)(i), which are consistent with the organizational changes proposed for current § 1.1441-2(d)(1).

    4. A Substitute Dividend May Include Deemed Payments

    Section 1.861-3(a)(6) provides that a substitute dividend payment made to a transferor in a securities lending transaction or sale-repurchase transaction is sourced in the same manner as a dividend on the transferred securities. The regulations define a substitute dividend payment as “a payment, made to the transferor of a security in a securities lending transaction or a sale-repurchase transaction, of an amount equivalent to a dividend distribution which the owner of the transferred security is entitled to receive during the term of the transaction.” These proposed regulations would modify § 1.861-3(a)(6) to clarify that a substitute dividend payment includes a deemed payment made in the amount (as determined under § 1.305-7(c)(4)) of a deemed distribution (as defined in § 1.305-1(d)(7)).

    These proposed regulations would provide that the general exception to withholding in § 1.1441-2(d)(1)(i) does not apply for deemed payments (as defined in § 1.861-3(a)(6)). However, proposed § 1.1441-2(d)(4) would allow a withholding agent to benefit from the same exception to withholding that would apply to deemed distributions (as defined in § 1.305-1(d)(7)) on a specified security for deemed payments (as defined in § 1.861-3(a)(6)) that are determined with respect to a deemed distribution on a specified security. Thus, a withholding agent would have an obligation to withhold on such a deemed payment only if, before the due date (not including extensions) for filing Form 1042, Annual Withholding Tax Return for U.S. Source Income of Foreign Persons, with respect to the calendar year in which the deemed distribution on a specified security occurred, either (i) the issuer meets its reporting requirements under § 1.6045B-1 (by furnishing an issuer statement or publicly reporting the information required under that section) or (ii) the withholding agent has actual knowledge that a deemed distribution has occurred, in which case the obligation to withhold would not arise until January 15 of the year following the calendar year of the deemed distribution or the deemed payment. If a withholding agent has an obligation to withhold on a deemed payment (as defined in § 1.861-3(a)(6)) under § 1.1441-2(d)(4)(i), it would be required to withhold subject to the rules regarding when and how to withhold in proposed § 1.1441-2(d)(4)(ii) and the rules regarding foreign entities that assume withholding responsibilities in § 1.1441-2(d)(4)(iii). These proposed regulations also would modify the regulations under chapter 4 to provide similar guidance with respect to deemed payments that are withholdable payments.

    5. Issuer Reporting Under Section 6045B

    To facilitate broker reporting of a security's adjusted basis to the holder of the security under section 6045, section 6045B provides that, according to the forms or regulations prescribed by the Secretary, an issuer of a specified security (for example, stock, a convertible debt instrument, or a warrant) must report certain information relating to an organizational action that affects the basis of the security to both the IRS and the holders of the security. Under section 6045B and current § 1.6045B-1, an issuer must file an issuer return (Form 8937, Report of Organizational Actions Affecting Basis of Securities) with the IRS by the earlier of 45 days after the organizational action or January 15 of the calendar year following the organizational action. In addition, the issuer must send a written statement (for example, a copy of the issuer return) to holders by January 15 of the calendar year following the organizational action. In lieu of filing the issuer return with the IRS and furnishing the written statement to holders, current § 1.6045B-1(a)(3) permits an issuer to post the required information on its public Web site by the due date for reporting the issuer return to the IRS. Under current § 1.6045B-1, however, an issuer is not required to send a statement to exempt recipients, such as C corporations and foreign persons, nor is an issuer required to file an issuer return if the issuer reasonably determines that all of the holders of the security are exempt recipients. An issuer must comply with current § 1.6045B-1 for an organizational action that occurs on or after the applicability date prescribed in current § 1.6045B-1(j). For example, an issuer of a convertible debt instrument must comply with current § 1.6045B-1 for an organizational action that occurs after December 31, 2015.

    An applicable adjustment, including a conversion ratio adjustment, is an organizational action that often will affect the holder's basis in a specified security. For example, the instructions to Form 8937 provide that if a conversion ratio adjustment on a convertible debt instrument occurring after December 31, 2015, results in a distribution under section 305(c) (for example, because it is made in conjunction with a cash distribution to shareholders), the issuer of the debt instrument must file Form 8937.

    Brokers and withholding agents have expressed concerns about the difficulty of complying with their reporting and withholding obligations in the absence of information about the fact and amount of a deemed distribution under section 305(c), including a deemed distribution under section 305(c) resulting from an applicable adjustment. Even after December 31, 2015, when issuers are generally required to report an applicable adjustment on a convertible debt instrument, brokers and withholding agents may not have the necessary information to comply with their reporting and withholding obligations because of the exempt recipient exception for providing a written statement (and assuming that the issuer does not choose the public reporting alternative). In response to these concerns, § 1.6045B-1(i)(2) of the proposed regulations would require that an issuer provide an issuer return to the IRS and a written statement to each holder of record of a specified security (or to the holder's nominee) relating to a deemed distribution under section 305(c) on the security, without regard to any of the general exceptions in the current regulations under section 6045B or in the instructions to Form 8937. The proposed regulations, like the current regulations, permit an issuer to not provide an issuer return to the IRS or a written statement to the holders regarding the deemed distribution if the issuer satisfies the public reporting requirements in current § 1.6045B-1(a)(3).

    6. Reporting for U.S. Persons

    Section 1.6045B-1 generally applies when a deemed distribution affects the basis of a specified security. It is expected that similar principles would apply under section 6042 with respect to reporting of deemed distributions made to U.S. persons on Form 1099-DIV. Comments are requested on the implementation of Form 1099-DIV reporting on these amounts.

    Proposed Effective/Applicability Date

    The proposed regulations under section 305 would apply to deemed distributions occurring on or after the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register. A taxpayer, however, may rely on these proposed regulations for deemed distributions under section 305(c) that occur prior to such date. For purposes of determining the amount of a deemed distribution to a deemed shareholder occurring prior to the date of publication, a taxpayer may determine the amount of the deemed distribution by treating such distribution either as a distribution of a right to acquire stock or as a distribution of the actual stock to which the right relates.

    The proposed regulations under sections 860G, 861, 1441, 1461, 1471, and 1473 would apply to payments made on or after the date of publication. A withholding agent, however, may rely on the proposed regulations under sections 861, 1441, 1471, and 1473 for all deemed distributions under section 305(c) or, to the extent applicable, deemed payments (as defined in § 1.861-3(a)(6)) occurring on or after January 1, 2016 until the date of publication. No inference as to the application of these provisions under current law is intended by permitting reliance on these proposed regulations. A withholding agent also may rely on the proposed regulations under section 1461 for any payments occurring on or after January 1, 2016 until the date of publication, including for any deemed distribution under section 305(c) or deemed payment (as defined in § 1.861-3(a)(6)) for which the withholding agent failed to withhold.

    Section 1.6045B-1(i)(2) would apply to a deemed distribution under section 305(c) occurring on or after the date of publication. In addition, an issuer would report the amount and timing of a deemed distribution in accordance with the proposed regulations under section 305 for a deemed distribution occurring on or after the date of publication. For purposes of reporting the amount of a deemed distribution occurring prior to the date of publication, an issuer may determine the amount of the deemed distribution by treating such distribution either as a distribution of a right to acquire stock, or as a distribution of the shares of stock that would be received upon exercise of the right. In addition, an issuer may rely on § 1.305-7(c)(5) of the proposed regulations to determine the date of a deemed distribution occurring prior to the date of publication.

    Statement of Availability of IRS Documents

    IRS Revenue Rulings cited in this preamble are published in the Internal Revenue Bulletin (or Cumulative Bulletin) and are available from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402, or by visiting the IRS Web site at http://www.irs.gov.

    Effect on Other Documents

    The IRS will modify, clarify, or obsolete publications as necessary to conform to these proposed regulations as of the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register. See, e.g., Rev. Rul. 75-513 (1975-2 CB 114) and Rev. Rul. 76-186 (1976-1 CB 186). The IRS solicits comments as to whether other publications should be modified, clarified, or obsoleted.

    Special Analyses

    Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations.

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that the proposed regulations under section 6045B in this document will not have a significant economic impact on a substantial number of small entities. Any effect on small entities by the rules in the proposed regulations flows directly from section 403 of the Energy Improvement and Extension Act of 2008, Division B of Public Law 110-343 (122 Stat. 3765, 3854 (2008)) (the Act).

    Section 403(d) of the Act added section 6045B, which requires an issuer, including an issuer that is a small entity, to report certain information relating to any organizational action by the issuer that affects the basis of a specified security. In general, an issuer reports the information required under section 6045B to the IRS and to holders or nominees on Form 8937. The proposed regulations limit reporting to the information necessary to meet the Act's requirements. In addition, the proposed regulations retain the rule in the current regulations under section 6045B that permits an issuer to report each action publicly on its Web site instead of filing a return and furnishing each holder or nominee a statement about the action. The proposed regulations therefore do not add to the statutory impact on small entities but instead eases this impact to the extent the statute permits. Moreover, any economic impact on small entities is expected to be minimal.

    Therefore, because the proposed regulations in this document will not have a significant economic impact on a substantial number of small entities, a regulatory flexibility analysis is not required.

    Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

    Comments and Requests for Public Hearing

    Before the proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the “Addresses” heading. The Treasury Department and the IRS request comments on all aspects of the proposed regulations. All comments will be available for public inspection and copying upon request, or at www.regulations.gov. A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the Federal Register.

    Drafting Information

    The principal authors of these regulations are: With respect to the regulations under section 305, Maurice M. LaBrie of the Office of Associate Chief Counsel (Corporate); with respect to the regulations under sections 860G, 861, 1441, 1461, 1471, and 1473, Subin Seth of the Office of Associate Chief Counsel (International); and with respect to the regulations under section 6045B, Pamela Lew of the Office of Associate Chief Counsel (Financial Institutions and Products), all within the Office of Chief Counsel, IRS. Other personnel from the Treasury Department and the IRS participated in developing the regulations.

    List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

    PART 1—INCOME TAX REGULATIONS Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority:

    26 U.S.C. 7805 * * *

    Par. 2. Section 1.305-1 is amended by: 1. Revising paragraphs (b)(3) and (d). 2. Adding paragraph (e).

    The revisions and addition read as follows:

    § 1.305-1 Stock dividends.

    (b) * * *

    (3) For rules determining the amount of the distribution for certain transactions, such as periodic redemptions or applicable adjustments (as defined in § 1.305-7(a)) of rights to acquire stock that are treated as distributions under section 305(b) and (c), see § 1.305-7 and Examples 6, 7, 8, 9, and 15 of § 1.305-3(e).

    (d) Definitions. For purposes of section 305, this section, and §§ 1.305-2 through 1.305-7:

    (1) Stock. The term stock means actual stock or a right to acquire stock.

    (2) Actual stock. The term actual stock means stock issued by a corporation, excluding rights to acquire stock as defined in paragraph (d)(3) of this section.

    (3) Right to acquire stock. The term right to acquire stock means—

    (i) A right of a holder of a convertible instrument (including a debt instrument that is convertible into shares of stock and stock that is convertible into shares of another class of stock) to convert the instrument into one or more shares of stock of the corporation issuing the instrument;

    (ii) A warrant, subscription right, stock right, or other option to acquire shares of stock of the corporation issuing the instrument;

    (iii) A right to acquire stock of the corporation issuing such right similar to the rights described in paragraphs (d)(3)(i) and (ii) of this section; and

    (iv) A right to receive an amount of cash or other property determined in whole or in part by reference to the value of a specified number of shares of stock (whether or not in lieu of such stock) of the corporation issuing the right.

    (4) Shareholder. The term shareholder means a holder of actual stock or a holder of a right to acquire stock.

    (5) Actual shareholder. The term actual shareholder means a holder of actual stock.

    (6) Deemed shareholder. The term deemed shareholder means a holder of a right to acquire stock.

    (7) Deemed distribution. The term deemed distribution means a transaction or event, other than an actual distribution of cash or property, that constitutes a distribution under section 305(b) and (c). An applicable adjustment to a right to acquire stock is not and does not result in a deemed distribution if either—

    (i) The right to acquire stock is a nonqualified stock option without a readily ascertainable fair market value (see section 83(e) and § 1.83-7), or

    (ii) Section 83(a) applies to the right to acquire stock or the stock to which the right relates or the stock is subject to a substantial risk of forfeiture, and the holder of the right has not made an election under section 83(b).

    (e) Effective/applicability date. Paragraphs (b)(3) and (d) of this section apply to deemed distributions under section 305(b) and (c) occurring on or after the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register. A taxpayer, however, may rely on these proposed regulations for deemed distributions under section 305(c) that occur prior to such date. For purposes of determining the amount of a deemed distribution to a deemed shareholder occurring prior to such date, a taxpayer may determine the amount of the deemed distribution by treating such distribution either as a distribution of a right to acquire stock or as a distribution of the actual stock to which the right relates.

    Par. 3. Section 1.305-3 is amended by: 1. Revising paragraph (e) introductory text, Example (6)(ii), Example (7)(ii) and (iii). 2. Adding paragraph (f).

    The revisions and addition read as follows:

    § 1.305-3 Disproportionate distributions.

    (e) Examples. The following examples illustrate the application of section 305(b)(2) to distributions of stock and rights to acquire stock and the application of section 305(c) to deemed distributions of stock and rights to acquire stock. * * *

    Example 6.

    * * *

    (ii) M pays an annual cash dividend on the class A stock. At the beginning of the second year, when the conversion ratio is increased to 1.05 shares of class A stock for each share of class B stock, an applicable adjustment occurs, as defined in § 1.305-7(a), and a distribution of rights to acquire 0.05 shares of class A stock is deemed made under section 305(c) and § 1.305-7(c)(1) with respect to each share of class B stock. The proportionate interests of the class B shareholders in the assets or earnings and profits of M are increased, and the transaction has the effect described in section 305(b)(2). Accordingly, sections 305(b)(2) and 301 apply to the transaction. The amount of the deemed distribution is determined in accordance with § 1.305-7(c)(4)(ii), and the date and time of the deemed distribution are determined in accordance with § 1.305-7(c)(5).

    Example 7.

    * * *

    (ii) In 2017, a $1 cash dividend per share is declared and paid on the class B stock. Pursuant to the terms of the class B stock, on the date of payment, the conversion ratio of the class B stock is reduced. The reduction in conversion ratio is an applicable adjustment, as defined in § 1.305-7(a). Under section 305(c) and § 1.305-7(c)(2), the reduction is a deemed distribution of stock to the class A shareholders, since their proportionate interest in the assets or earnings and profits of the corporation is increased, and the transaction has the effect described in section 305(b)(2). Accordingly, sections 305(b)(2) and 301 apply to the transaction. The amount of the distribution is determined in accordance with § 1.305-7(c)(4)(ii), and the date and time of the deemed distribution are determined in accordance with § 1.305-7(c)(5).

    (iii) In the following year a cash dividend is paid on the class A stock but not on the class B stock, and the conversion ratio of the class B stock increases. The increase in the conversion ratio of the class B shares is an applicable adjustment. Under section 305(c) and § 1.305-7(c)(1), the adjustment is a deemed distribution of rights to acquire stock to the class B shareholders since their proportionate interest in the assets or earnings and profits of the corporation is increased, and the transaction has the effect described in section 305(b)(2). Accordingly, sections 305(b)(2) and 301 apply to the transaction. The amount of the distribution is determined in accordance with § 1.305-7(c)(4)(i), and the date and time of the deemed distribution are determined in accordance with § 1.305-7(c)(5).

    (f) Effective/applicability date. The first sentence of paragraph (e) of this section and Examples 6 and 7 of paragraph (e) of this section apply to deemed distributions under section 305(c) occurring on or after the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register. A taxpayer, however, may rely on these proposed regulations for deemed distributions under section 305(c) that occur prior to such date. For purposes of determining the amount of a deemed distribution to a deemed shareholder occurring prior to the date of publication, a taxpayer may determine the amount of the deemed distribution by treating such distribution either as a distribution of a right to acquire stock or as a distribution of the actual stock to which the right relates.

    Par. 4. Section 1.305-7 is revised to read as follows:
    § 1.305-7 Certain transactions treated as distributions.

    (a) Applicable adjustment. For purposes of section 305, §§ 1.305-1 through 1.305-6, and this section, the term applicable adjustment means an adjustment to a right to acquire stock (as defined in § 1.305-1(d)(3)), including—

    (1) With respect to a convertible instrument and a holder thereof, an increase in the conversion ratio or a reduction in the conversion price of such instrument;

    (2) With respect to a warrant, subscription right, stock right, option, or other similar right and a holder thereof, an increase in the number of shares to be received by the holder upon exercise or a reduction in exercise price;

    (3) With respect to a convertible instrument and a holder of actual stock into which such instrument may be converted, an increase in the conversion price or a reduction in the conversion ratio of such instrument;

    (4) With respect to a warrant, subscription right, stock right, option, or similar right and a holder of actual stock into which such instrument is exercisable, an increase in the exercise price or a reduction in the number of shares to be received by the holder upon exercise; and

    (5) An adjustment in the terms of a right to acquire stock having an effect similar to the effects of the adjustments described in paragraphs (a)(1) through (a)(4) of this section, including, for example, an extension or reduction of the term during which a right to acquire stock may be exercised.

    (b) Transactions treated as distributions—(1) In general. Under section 305(c), an applicable adjustment, a change in redemption price, a difference between redemption price and issue price, a redemption that is treated as a distribution to which section 301 applies, or any transaction (including a recapitalization) having a similar effect on the interest of any shareholder is treated as a distribution of stock to which sections 305(b) and 301 apply if such transaction increases a shareholder's proportionate interest in the assets or earnings and profits of the corporation deemed to make such distribution, and the distribution has the result described in section 305(b)(2), (3), (4), or (5). Depending upon the facts presented, the distribution may be deemed to be made in shares of actual stock or in additional rights to acquire stock (which, in either case, may be common or preferred stock).

    (c) Applicable adjustment to right to acquire stock—(1) Increase in deemed shareholder's proportionate interest. Under section 305(c), if an applicable adjustment has the effect of increasing a deemed shareholder's proportionate interest in the assets or earnings and profits of the corporation, and if such increase has the effect described in section 305(b)(2), (3), (4) or (5), the applicable adjustment is a deemed distribution to the deemed shareholder of a right to acquire stock, and section 301 applies to the deemed distribution. Applicable adjustments that can have this effect include, with respect to a convertible instrument, an increase in the conversion ratio or the number of shares of stock to be received upon conversion or a reduction in the conversion price.

    (2) Increase in actual shareholder's proportionate interest. If an applicable adjustment has the effect of reducing a deemed shareholder's proportionate interest in the assets or earnings and profits of the corporation and thereby increasing an actual shareholder's proportionate interest, and if such increase has the effect described in section 305(b)(2), (3), (4), or (5), then the applicable adjustment is a deemed distribution of stock to the actual shareholder, and section 301 applies to the deemed distribution. Applicable adjustments that can have this effect include, with respect to a convertible instrument, a reduction in the conversion ratio or in the number of shares to be received upon conversion, or an increase in the conversion price.

    (3) Exception. For purposes of applying section 305(c) in conjunction with section 305(b), an applicable adjustment that is made pursuant to a bona fide, reasonable adjustment formula (including but not limited to an applicable adjustment made to compensate for a distribution of stock to another shareholder) and that has the effect of preventing dilution of the proportionate interest of the holders of actual stock or rights to acquire stock does not result in a deemed distribution of stock. An applicable adjustment that is made to compensate for a cash or property distribution to another shareholder and that is taxable under section 301, 356(a)(2), 871(a)(1)(A), 881(a)(1), 852(b), or 857(b) is not made pursuant to a bona fide adjustment formula described in the preceding sentence.

    (4) Amount of deemed distribution—(i) Deemed distribution to deemed shareholder. For a deemed distribution under section 305(b) and (c) that is made to a deemed shareholder and is an applicable adjustment, the amount of the deemed distribution is the excess of—

    (A) The fair market value of the right to acquire stock held by the deemed shareholder immediately after the applicable adjustment, over

    (B) The fair market value, determined immediately after the applicable adjustment, of such right to acquire stock as if no applicable adjustment had occurred.

    (ii) Deemed distribution to actual shareholder. For a deemed distribution under section 305(b) and (c) that is made to an actual shareholder and results from an applicable adjustment, the amount of the deemed distribution is the fair market value of the stock deemed distributed, determined in accordance with the methodology set forth in § 1.305-3(e), Examples 8 and 9.

    (iii) Fair market value standard. In determining the fair market value of a right to acquire stock for purposes of this paragraph (c)(4),

    (A) Any particular facts pertaining to the deemed shareholder, including the number of rights or shares such deemed shareholder owns, will be disregarded, and

    (B) Any value or reduction in value attributable to the possibility of future applicable adjustments that may result from actual or deemed distributions will not be taken into account.

    (5) Date and time of deemed distribution. When an applicable adjustment is a deemed distribution under paragraphs (c)(1) or (2) of this section, the deemed distribution occurs at the time such applicable adjustment occurs, in accordance with the instrument setting forth the terms of the right to acquire stock, but in no event later than the date of the distribution of cash or property that results in the deemed distribution (taking into account § 1.305-3(b)). For such applicable adjustment relating to a right to acquire publicly-traded stock, if the instrument setting forth the terms of such right does not set forth the time the applicable adjustment occurs, the deemed distribution occurs immediately prior to the opening of business on the ex-dividend date for the distribution of the cash or property that results in the deemed distribution. For such an applicable adjustment relating to a right to acquire non-publicly traded stock, if the instrument setting forth the terms of such right does not set forth the time the applicable adjustment occurs, the deemed distribution occurs on the date that a holder is legally entitled to the distribution of cash or property that results in the deemed distribution.

    (6) Examples. The following examples and the examples in §§ 1.305-3(e) and 1.305-5(d) illustrate the application of section 305(c) and paragraphs (a), (b) and (c) of this section.

    Example 1.

    (i) Facts. Corporation U has two classes of actual stock outstanding, class A and class B. Each class B share is convertible into class A stock. In accordance with a bona fide, reasonable antidilution provision, the conversion price is adjusted downward if the corporation transfers class A stock to anyone for consideration below the conversion price. The corporation sells class A stock to the public at the current market price, which is below the conversion price. Pursuant to the antidilution provision, the conversion price is adjusted downward.

    (ii) Analysis. Although such a reduction in conversion price is an applicable adjustment, under paragraph (c)(3) of this section the reduction is not a distribution under section 305(c) for the purposes of section 305(b).

    Example 2.

    (i) Facts. Corporation X has outstanding one class of actual common stock and convertible debt securities. The convertible securities have a bona fide, reasonable antidilution provision that provides for an increase in conversion ratio in the event stock dividends or rights to acquire stock are distributed to the common shareholders. Corporation X distributes to the common shareholders an actual stock dividend that results in an increase in the conversion ratio of the convertible securities. Pursuant to the antidilution provision, the conversion ratio is increased.

    (ii) Analysis. Under section 305(d) and § 1.305-1(d)(4), the holders of convertible securities are shareholders for purposes of section 305(b) and (c). The convertible securities are rights to acquire stock and are stock for purposes of section 305. The increase in conversion ratio caused by the distribution of the stock dividend to the common shareholders is an applicable adjustment. Because the applicable adjustment is made pursuant to a bona fide, reasonable adjustment formula within the meaning of paragraph (c)(3) of this section, the applicable adjustment is not a deemed distribution under section 305(c) of rights to acquire stock.

    Example 3.

    (i) Facts. Corporation X has outstanding one class of publicly-traded common stock and convertible debt securities. The terms of the convertible securities provide for an increase in the conversion ratio in the event stock, cash, or property is distributed to the holders of the common stock. Corporation X distributes cash to the holders of the common stock, and the distribution results in an increase in the conversion ratio of the convertible securities.

    (ii) Analysis. Under section 305(d) and § 1.305-1(d)(5), the holders of the convertible securities are shareholders for purposes of section 305(b) and (c). The conversion rights in the convertible securities are rights to acquire stock (as defined in § 1.305-1(d)(3)) and is stock for purposes of section 305. The increase in conversion ratio resulting from the cash distribution to the holders of common stock is an applicable adjustment. Because the applicable adjustment is not made pursuant to a bona fide, reasonable adjustment formula within the meaning of paragraph (c)(3) of this section, it is a deemed distribution to the holders of the convertible securities of rights to acquire stock under section 305(c) and paragraph (c)(1) of this section. Because the proportionate interests of these deemed shareholders in the assets or earnings and profits of Corporation X are increased by the change in conversion ratio, the distribution has the result described in section 305(b)(2) and is treated as a distribution to which section 301 applies. The amount of the deemed distribution is determined in accordance with paragraph (c)(4)(i) of this section, and the date and time of the deemed distribution are determined in accordance with paragraph (c)(5) of this section.

    (d) Recapitalizations—(1) In general. A recapitalization (whether or not an isolated transaction) will be deemed to result in a distribution to which section 305(c) and this section apply if—

    (i) It is pursuant to a plan to periodically increase a shareholder's proportionate interest in the assets or earnings and profits of the corporation, or

    (ii) A shareholder owning preferred stock with dividends in arrears exchanges his stock for other stock and, as a result, increases his proportionate interest in the assets or earnings and profits of the corporation. An increase in a preferred shareholder's proportionate interest occurs in any case where the fair market value or the liquidation preference, whichever is greater, of the stock received in the exchange (determined immediately following the recapitalization), exceeds the issue price of the preferred stock surrendered.

    (2) Amount of distribution. In a case to which paragraph (d)(1)(ii) of this section applies, the amount of the distribution deemed under section 305(c) to result from the recapitalization is the lesser of—

    (i) The amount by which the fair market value or the liquidation preference, whichever is greater, of the stock received in the exchange (determined immediately following the recapitalization) exceeds the issue price of the preferred stock surrendered, or

    (ii) The amount of the dividends in arrears.

    (3) Definition. For purposes of applying paragraphs (d)(1) and (2) of this section with respect to stock issued before July 12, 1973, the term issue price of the preferred stock surrendered shall mean the greater of the issue price or the liquidation preference (not including dividends in arrears) of the stock surrendered.

    (4) Examples. For an illustration of the application of this paragraph (d), see Example 12 of § 1.305-3(e) and Examples 1, 2, 3, and 6 of § 1.305-5(d).

    (e) Redemption premiums with respect to preferred stock. Under section 305(c), if a redemption premium exists with respect to a class of preferred stock under the circumstances described in § 1.305-5(b) and the other requirements of this section are met, the distribution will be deemed made with respect to such preferred stock, in stock of the same class. Accordingly, the preferred shareholders are considered under section 305(b)(4) and (c) to have received a deemed distribution of preferred stock to which section 301 applies.

    (f) Coordination with section 871(m). For coordination of sections 305 and 871(m), see § 1.871-15(c)(2)(ii).

    (g) Effective date. This section applies to deemed distributions under section 305(c) occurring on or after the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register. A taxpayer, however, may rely on these proposed regulations for deemed distributions under section 305(c) that occur prior to such date. For purposes of determining the amount of a deemed distribution to a deemed shareholder occurring prior to the date of publication, a taxpayer may determine the amount of the deemed distribution by treating such distribution either as a distribution of a right to acquire stock or as a distribution of the actual stock to which the right relates.

    § 1.860G-3 [Amended]
    Par. 5. Section 1.860G-3(b)(1) is amended by removing the language “1.1441-2(d)(4)” in the last sentence, and adding the language “1.1441-2(d)(1)(ii)(C)” in its place, and by removing the language “1.1441-5(b)(2)(i)(A), and” and adding the language “1.1441-5(b)(2)(i)(A), 1.1471-2(a)(4)(i)(B)(4), and” in its place. Par. 6. Section 1.861-3 is amended by: 1. In paragraph (a)(6), removing “A substitute dividend payment is a payment” in the first sentence and adding “A substitute dividend payment is a payment or a deemed payment” in its place, and adding a new second sentence. 2. In paragraph (d), replacing the third sentence with a new sentence.

    The additions read as follows:

    § 1.861-3. Dividends.

    (a) * * * * *

    (6) Substitute dividend payments. * * * A deemed payment is a payment deemed to have been made in the amount (as determined under § 1.305-7(c)(4)) of a deemed distribution (as defined in § 1.305-1(d)(7)) that the owner of the transferred security is entitled to during the term of the transaction. * * *

    (d) Effective/applicability date. * * * Paragraph (a)(6) of this section applies to payments made on or after the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register; however, a taxpayer may rely on the rule in the second sentence of paragraph (a)(6) of this section for all deemed distributions (as defined in § 1.305-1(d)(7)) occurring on or after January 1, 2016, until the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register. * * *

    Par. 7. Section 1.1441-2 is amended by: 1. Revising paragraphs (d)(1) and (4). 2. Amending paragraph (f) by removing the language “(d)(4)” in the second sentence and adding in its place “(d)(1)(ii)(C),” and adding a fourth and fifth sentence.

    The revisions and addition read as follows:

    § 1.1441-2 Amounts subject to withholding.

    (d) * * *

    (1) General rule—(i) Control or custody and knowledge. Except as provided in paragraph (d)(1)(ii) of this section, a withholding agent has an obligation to withhold under section 1441 only to the extent that, at any time between the date that the obligation to withhold would arise (but for the provisions of this paragraph (d)) and the due date (including extensions) for filing Form 1042 with respect to the calendar year in which the payment occurs, it has—

    (A) Control over, or custody of, money or property owned by the recipient or beneficial owner from which to withhold an amount; and

    (B) Knowledge of the facts that give rise to the payment.

    (ii) Exception not available. The exception from the obligation to withhold under paragraph (d)(1)(i) of this section does not apply if—

    (A) The withholding agent is related (within the meaning of section 482) to the recipient or the beneficial owner of the payment;

    (B) The payment is a distribution with respect to stock (including a deemed distribution (as defined in § 1.305-1(d)(7)) of stock or a right to acquire stock); see, however, paragraph (d)(4) of this section, which provides a limited exception from the obligation to withhold on a deemed distribution;

    (C) The amounts are described in § 1.860G-3(b)(1) (regarding certain partnership allocations of REMIC net income with respect to a REMIC residual interest);

    (D) The lack of control over or custody of money or property from which to withhold is part of a pre-arranged plan known to the withholding agent to avoid withholding under section 1441, 1442, or 1443; or

    (E) The payment is a deemed payment (as defined in § 1.861-3(a)(6)); see, however, paragraph (d)(4) of this section, which provides a limited exception from the obligation to withhold on a deemed payment.

    (iii) Documentation. Any exception from withholding pursuant to paragraph (d)(1)(i) of this section applies without a requirement that documentation be furnished to the withholding agent. However, documentation may have to be furnished for purposes of the information reporting provisions under chapter 61 of the Code and backup withholding under section 3406.

    (iv) Scope of exception. The exception from withholding under this paragraph (d) is not a determination that the amounts are not fixed or determinable annual or periodical income, nor is it an exception from reporting the amount under § 1.1461-1(b) and (c).

    (v) Lack of money or property or lack of knowledge. A withholding agent does not lack control over money or property for purposes of this paragraph (d)(1) if the withholding agent directs another party to make the payment. Thus, for example, a principal does not cease to have control over a payment when it contracts with a paying agent to make the payments to its account holders in lieu of paying the account holders directly. Further, a withholding agent does not lack knowledge of the facts that give rise to a payment merely because the withholding agent does not know the character or source of the payment for U.S. tax purposes. See § 1.1441-3(d)(1) for rules addressing a withholding agent's obligations when the withholding agent has knowledge of the facts that give rise to the payment, but the character or source of the payment is not known.

    (vi) Example.

    A, an individual, owns stock in DC, a domestic corporation, through a custodian, Bank 1. A also has a money market account at Bank 2. DC pays a dividend of $1,000 that is deposited in A's custodial account at Bank 1. A then directs Bank 1 to transfer $1,000 to A's money market account at Bank 2. With respect to the payment of the dividend into A's custodial account with Bank 1, both DC and Bank 1 are withholding agents making a payment of an amount subject to withholding for which they have custody, control, and knowledge. See §§ 1.1441-2(b)(1) and 1.1441-7(a)(1). Therefore, both DC and Bank 1 have an obligation to withhold on the payment unless they can reliably associate the payment with documentation sufficient to treat the respective payees as not subject to withholding under chapter 3. With respect to the wire transfer of $1,000 from A's account at Bank 1 to A's account at Bank 2, neither Bank 1 nor Bank 2 is required to withhold on the transfer because neither bank has knowledge of the facts that gave rise to the payment. Even though Bank 1 is a custodian for A's stock in DC and has knowledge regarding the $1,000 dividend paid to A, once Bank 1 credits the $1,000 dividend to A's account, the $1,000 becomes A's property. When A transfers the $1,000 to its account at Bank 2, this is a separate transfer about which Bank 1 has no knowledge regarding the type of payment made. Further, Bank 2 only has knowledge that it receives $1,000 to be credited to A's account but has no knowledge regarding the type of payment made. Accordingly, Bank 1 and Bank 2 have no withholding obligation with respect to the transfer from A's custodial account at Bank 1 to A's money market account at Bank 2.

    (4) Deemed distributions under section 305(c) and deemed payments—(i) General rule. Subject to the rules in this paragraph (d)(4)(i) and paragraph (d)(4)(iii) of this section, and any other exception to withholding (for example, under § 1.1441-4), a withholding agent has an obligation to withhold on a deemed distribution (as defined in § 1.305-1(d)(7)) or a deemed payment (as defined in § 1.861-3(a)(6)) on a security. However, a withholding agent other than the issuer of a specified security (as defined in § 1.6045-1(a)(14)) has an obligation to withhold on a deemed distribution (as defined in § 1.305-1(d)(7)) on a specified security or a deemed payment (as defined in § 1.861-3(a)(6)) that is determined with respect to a deemed distribution on a specified security only if:

    (A) The issuer of the specified security reports the information required under § 1.6045B-1 regarding the deemed distribution before the due date (not including extensions) for the withholding agent to file Form 1042 for the calendar year in which the deemed distribution or the deemed payment occurred; or

    (B) The withholding agent has actual knowledge of the deemed distribution before the due date (not including extensions) for it to file Form 1042 for the calendar year in which the deemed distribution or the deemed payment occurred, but in such case the requirements of this paragraph (d)(4)(i) will not be considered to be met until January 15 of the year following the calendar year in which the deemed distribution or the deemed payment occurred.

    (ii) Time to withhold on a deemed distribution or deemed payment. After the requirements of paragraph (d)(4)(i) of this section have been met, except as provided in § 1.1441-5 regarding the time to withhold for partnerships and trusts, a withholding agent must withhold on a deemed distribution (as defined in § 1.305-1(d)(7)) or a deemed payment (as defined in § 1.861-3(a)(6)) on the earliest of:

    (A) The date on which a payment of cash is made with respect to the security or the securities lending or sales-repurchase transaction;

    (B) The date on which the security is sold, exchanged, or otherwise disposed of (including a transfer of the security to a separate account not maintained by the withholding agent or a termination of the account relationship); or

    (C) The due date (not including extensions) for the withholding agent to file Form 1042 for the calendar year in which the deemed distribution or the deemed payment occurred.

    (iii) Treatment of foreign entities assuming withholding responsibilities. Notwithstanding § 1.1441-1(b)(1), a withholding agent may not treat a foreign entity as having assumed primary withholding responsibility under § 1.1441-1(e)(5), § 1.1441-1(b)(2)(iv), § 1.1441-5(c)(2)(i), or § 1.1441-5(e)(5)(v) for a deemed distribution (as defined in § 1.305-1(d)(7)) on a specified security (as defined in § 1.6045-1(a)(14)) or a deemed payment (as defined in § 1.861-3(a)(6)) that is determined with respect to a deemed distribution on a specified security unless the withholding agent has provided the foreign entity a copy of the issuer statement described in § 1.6045B-1(b)(1) within 10 days of the issuer furnishing the statement to the holder of record (or its nominee), or the issuer has met the public reporting requirements described in § 1.6045B-1(a)(3). A foreign entity described in the preceding sentence has an obligation to withhold on the deemed distribution or the deemed payment (unless an exception to withholding under section 1441 applies) if it receives a copy of the statement described in § 1.6045B-1(b)(1) or the issuer has met the public reporting requirements described in § 1.6045B-1(a)(3) by the due date (not including extensions) for filing Form 1042 with respect to the calendar year in which the deemed distribution or the deemed payment occurred. See § 1.1441-3(c)(5)(i) for when the foreign entity may rely on the copy of the issuer statement that it receives to determine the amount to withhold.

    (iv) Examples. The following examples illustrate when a withholding agent must satisfy its obligation to withhold under paragraph (d)(4) of this section on a deemed distribution.

    Example 1

    (i) Facts. WA is a U.S. custodian that holds a convertible debt instrument (CDI) of Corporation X that is a specified security (as defined in § 1.6045-1(a)(14)) on behalf of A, a foreign person. On March 1 of Year 1, there is a change in the conversion ratio of the CDI that is treated as a deemed distribution under § 1.305-7(b) and (c). On March 15 of Year 1, Corporation X makes an interest payment on the CDI to WA as custodian for A. On April 1 of Year 1, Corporation X reports the information required under § 1.6045B-1 regarding the deemed distribution on its public Web site. On April 15 of Year 1, Corporation X makes another interest payment on the CDI to WA as custodian for A.

    (ii) Analysis. Under paragraph (d)(4)(i) of this section, WA does not have an obligation to withhold on the deemed distribution on the CDI that it holds on behalf of A until April 1 of Year 1, the date on which Corporation X satisfied its reporting requirements under § 1.6045B-1 regarding the deemed distribution. WA must withhold on the April 15 cash payment, which is the earliest of the dates specified in paragraph (d)(4)(ii) of this section for withholding on the deemed distribution.

    Example 2

    (i) Facts. The facts are the same as in Example 1, except that an interest payment is not made on the Corporation X CDI on April 15 of Year 1, and the CDI is transferred to a separate account of A that is not maintained by WA on April 15 of Year 1.

    (ii) Analysis. Because WA is a withholding agent under § 1.1441-7(a)(4) with respect to the deemed distribution on March 1 of Year 1 and Corporation X reports the information required under § 1.6045B-1, WA is required to satisfy the withholding obligation even though the CDI was transferred before a cash payment is made with respect to the CDI. WA does not have an obligation to withhold on the deemed distribution until April 1 of Year 1, the date on which Corporation X reported the conversion ratio adjustment as required by § 1.6045B-1 regarding the deemed distribution. WA must withhold upon the transfer of the CDI to an account not maintained by WA on April 15 of Year 1, which is the earliest of the dates specified in paragraph (d)(4)(ii) of this section for withholding.

    Example 3

    (i) Facts. The facts are the same as in Example 2, except that the CDI is transferred to a separate account of A that is not maintained by WA on March 30 of Year 1.

    (ii) Analysis. Because WA is a withholding agent under § 1.1441-7(a)(4) with respect to the deemed distribution on March 1 of Year 1 and Corporation X has satisfied its reporting requirements with respect to the deemed distribution, WA is required to satisfy the withholding obligation even though the CDI was transferred before WA received the issuer reporting from Corporation X under § 1.6045B-1 regarding the deemed distribution. WA does not have an obligation to withhold on the deemed distribution until April 1 of Year 1, the date on which Corporation X satisfied its reporting requirements under § 1.6045B-1 regarding the deemed distribution. Because neither of the events specified in paragraphs (d)(4)(ii)(A) and (B) of this section occurred after April 1 of Year 1, WA must satisfy its withholding obligation by the due date (not including extensions) for filing Form 1042 (that is, by March 15 of Year 2), as provided in paragraph (d)(4)(ii)(C) of this section. WA may apply § 1.1461-2(b) in order to collect the underwithheld amount.

    (f) Effective/applicability date. * * * Paragraphs (d)(1) and (d)(4) of this section apply to payments made on or after the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register. A withholding agent may, however, rely on the rules in paragraphs (d)(1) and (d)(4) of this section for all deemed distributions (as defined in § 1.305-1(d)(7)) or deemed payments (as defined in § 1.861-3(a)(6)) occurring on or after January 1, 2016, until the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    Par. 8. Section 1.1441-3 is amended by: 1. Adding paragraph (c)(5). 2. Amending paragraph (i) by removing the language “paragraphs (g) and (h)” and adding in its place “paragraphs (c)(5), (g), and (h)”.

    The addition reads as follows:

    § 1.1441-3 Determination of amounts to be withheld.

    (c) * * *

    (5) Reliance rule for applicable adjustments—(i) In general. For purposes of determining the amount of a deemed distribution (as defined in § 1.305-1(d)(7)) on a specified security (as defined in § 1.6045-1(a)(14)) or a deemed payment (as defined in § 1.861-3(a)(6)) that is determined with respect to a deemed distribution on a specified security, a withholding agent other than the issuer of the specified security (as defined in § 1.6045-1(a)(14)) may rely on the information provided by the issuer under § 1.6045B-1 (or a copy of the issuer statement in the circumstances described in § 1.1441-2(d)(4)(iii)) unless it knows that such information is incorrect or unreliable. See § 1.1441-2(d)(4) for a withholding agent's obligation to withhold on a deemed distribution or a deemed payment.

    (ii) Effective/applicability date. Paragraph (c)(5)(i) of this section applies to payments made on or after the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register. A withholding agent may, however, rely on the rules in paragraph (c)(5)(i) of this section for all deemed distributions (as defined in § 1.305-1(d)(7)) or deemed payments (as defined in § 1.861-3(a)(6)) occurring on or after January 1, 2016, until the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    Par. 9. Section 1.1441-7 is amended by: 1. Redesignating paragraph (a)(4) as (a)(5) and adding a second and third sentence to newly redesignated (a)(5). 2. Adding a new paragraph (a)(4). 3. Amending paragraph (g) by removing the language “paragraphs (a)(4)” and adding in its place “paragraphs (a)(5).”

    The addition reads as follows:

    § 1.1441-7 General provisions relating to withholding agents.

    (a) * * *

    (4) Withholding agent with respect to deemed distributions under section 305(c). Any person that issues or holds directly or indirectly (for example, through an account maintained for another intermediary) on behalf of a beneficial owner, or a flow through entity that owns directly or indirectly (through another flow-through entity), a security upon which a deemed distribution (as defined in § 1.305-1(d)(7)) is made has custody of or control over the deemed distribution. See § 1.1441-2(d)(4) for a withholding agent's obligation to withhold on the deemed distribution and § 1.1441-3(c)(5)(i) for when a withholding agent may rely on the information reported by the issuer under § 1.6045B-1 to determine the amount to withhold.

    (5) * * * Paragraph (a)(4) of this section applies to payments made on or after the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register. A withholding agent may, however, rely on the rules in paragraph (a)(4) of this section for all deemed distributions (as defined in § 1.305-1(d)(7)) occurring on or after January 1, 2016, until the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    Par. 10. Section 1.1461-2 is amended by revising the second sentence to paragraph (b), adding a fourth sentence to paragraph (b), and adding a second and third sentence to paragraph (d) to read as follows:
    § 1.1461-2 Adjustments for overwithholding or underwithholding of tax.

    (b) Withholding of additional tax when underwithholding occurs. * * * In the alternative, the withholding agent may satisfy the tax from property that it holds in custody for the beneficial owner, property over which it has control, or additional contributions of property obtained directly or indirectly from the beneficial owner. * * * A withholding agent that adjusts its underwithholding under the procedure described in this paragraph (b) will not be subject to any penalties or additions to tax described in § 1.1461-1(a)(2) if it timely deposits the amounts that it withholds from future payments, proceeds from the liquidation of property, or additional contributions of property obtained directly or indirectly from the beneficial owner. * * *

    (d) * * * Paragraph (b) of this section applies to payments made on or after the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register. A withholding agent may, however, rely on the rules in paragraph (b) of this section for payments occurring on or after January 1, 2016, until the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    Par. 11. Section 1.1471-2 is amended by: 1. Revising paragraph (a)(4)(i)(A), redesignating paragraph (B) as new paragraph (E), and adding new paragraphs (B) through (D). 2. Amending paragraph (c) by adding a third and fourth sentence.

    The revisions and addition read as follows:

    § 1.1471-2 Requirement to deduct and withhold tax on withholdable payments to certain FFIs.

    (a) * * *

    (4) * * *

    (i) * * *

    (A) In general. Except as provided in paragraph (a)(4)(i)(B) of this section, a withholding agent has an obligation to withhold under chapter 4 only to the extent that, at any time between the date that the obligation to withhold would arise (but for the provisions of this paragraph (a)(4)(i)(A)) and the due date (including extensions) for filing Form 1042 (including extensions) with respect to the calendar year in which the payment occurs, it has—

    (1) Control over, or custody of, money or property owned by the recipient or beneficial owner from which to withhold an amount, and

    (2) Knowledge of the facts that give rise to the payment.

    (B) Exception not available. The exception from the obligation to withhold under paragraph (a)(4)(i)(A) of this section does not apply if—

    (1) The withholding agent is related (within the meaning of section 482) to the recipient or the beneficial owner of the payment;

    (2) The payment is with respect to stock (including a deemed distribution (as defined in § 1.305-1(d)(7)) of stock or a right to acquire stock) or other securities; however, the limited exception from the obligation to withhold on a deemed distribution provided in § 1.1441-2(d)(4) also applies to a deemed distribution that is a withholdable payment under chapter 4;

    (3) The lack of control over or custody of money or property from which to withhold is part of a pre-arranged plan known to the withholding agent to avoid withholding under section 1471 or 1472;

    (4) The amounts are described in § 1.860G-3(b)(1) (regarding certain partnership allocations of REMIC net income with respect to a REMIC residual interest);

    (5) Any of the special rules described in § 1.1441-2(d)(2) or (3), regarding the obligation of a withholding agent with respect to cancellation of debt or the satisfaction of tax liability following underwithholding by a withholding agent, apply with respect to the payment (by applying such rules to payments that are withholdable payments under chapter 4); or

    (6) The payment is a deemed payment (as defined in § 1.861-3(a)(6)); however, the limited exception from the obligation to withhold on a deemed payment provided in § 1.1441-2(d)(4) also applies to a deemed payment that is determined with respect to a deemed distribution on a specified security and that is a withholdable payment under chapter 4.

    (C) Documentation. Any exception from withholding pursuant to paragraph (a)(4)(i)(A) of this section applies without a requirement that documentation be furnished to the withholding agent. However, documentation may have to be furnished for purposes of the information reporting provisions under chapter 61 of the Code and backup withholding under section 3406.

    (D) Lack of money or property or lack of knowledge. A withholding agent does not lack control over money or property for purposes of this paragraph (a)(4)(i)(A) if the withholding agent directs another party to make the payment. Thus, for example, a principal does not cease to have control over a payment when it contracts with a paying agent to make the payments to its account holders in lieu of paying the account holders directly. Further, a withholding agent does not lack knowledge of the facts that give rise to a payment merely because the withholding agent does not know the character or source of the payment for U.S. tax purposes. See paragraph (a)(5) of this section for rules addressing a withholding agent's obligations when the withholding agent has knowledge of the facts that give rise to the payment, but the character or source of the payment is not known.

    (c) * * * Paragraph (a)(4)(i) of this section applies to payments made on or after the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register. A withholding agent may, however, rely on the rules in paragraph (a)(4)(i) of this section (together with the rules in § 1.1441-2(d)(4)), for all deemed distributions (as defined in § 1.305-1(d)(7)) or deemed payments (as defined in § 1.861-3(a)(6)) that are withholdable payments occurring on or after January 1, 2016, until the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    Par. 12. Section 1.1473-1 is amended by: 1. Amending paragraph (a)(2)(vii)(A) by adding a sentence to the end of the paragraph. 2. Adding paragraph (d)(7). 3. Amending paragraph (f) by adding a third and fourth sentence.

    The additions read as follows:

    § 1.1473-1 Section 1473 definitions.

    (a) * * *

    (2) * * *

    (vii) * * *

    (A) * * * For purposes of determining the amount of a deemed distribution (as defined in § 1.305-1(d)(7)) on a specified security (as defined in § 1.6045-1(a)(14)) or a deemed payment (as defined in § 1.861-3(a)(6)) that is determined with respect to a deemed distribution on a specified security, a withholding agent other than the issuer of the specified security may rely on issuer reporting by applying the rule under § 1.1441-3(c)(5)(i) to deemed distributions or deemed payments that are withholdable payments under chapter 4.

    (d) * * *

    (7) Withholding agent with respect to deemed distributions under section 305(c). Any person that issues or holds directly or indirectly (for example, through an account maintained for another intermediary) on behalf of a beneficial owner or a flow through entity that owns directly or indirectly (through another flow-through entity), a security upon which a deemed distribution (as defined in § 1.305-1(d)(7)) is made has custody of or control over the deemed distribution.

    (f) * * * Paragraphs (a)(2)(vii) and (d)(7) of this section apply to payments made on or after the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register. A withholding agent may, however, rely on the rules in paragraphs (a)(2)(vii) and (d)(7) of this section for all deemed distributions (as defined in § 1.305-1(d)(7)) or deemed payments (as defined in § 1.861-3(a)(6)) that are withholdable payments occurring on or after January 1, 2016, until the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    Par. 13. Section 1.6045B-1 is amended by adding paragraph (i) to read as follows:
    § 1.6045B-1 Returns relating to actions affecting basis of securities.

    (i) Deemed distribution under section 305(c)—(1) In general. This paragraph (i) provides special rules for an organizational action resulting in a deemed distribution under section 305(c) that affects the basis of a specified security, including a deemed distribution resulting from an applicable adjustment (for example, a conversion ratio adjustment). See paragraph (j) of this section to determine when this section applies to an organizational action that affects the basis of a specified security. For example, under paragraph (j)(4) of this section, this section applies to a deemed distribution under section 305(c) resulting from an applicable adjustment to a convertible debt instrument if the deemed distribution occurs on or after January 1, 2016, and the deemed distribution could affect the basis of the convertible debt instrument.

    (2) Mandatory reporting. Notwithstanding any other provision in this section (including the reporting exceptions for exempt recipients in paragraphs (a)(4) and (b)(5) of this section), for an organizational action described in paragraph (i)(1) of this section the issuer must file an issuer return in accordance with paragraphs (a)(1) and (2) of this section and issuer statements in accordance with paragraphs (b)(1), (2), and (3) of this section. However, the requirement to file an issuer return and issuer statement in accordance with the preceding sentence does not apply if the issuer satisfies the public reporting requirements of paragraph (a)(3) of this section.

    (3) Information required to be reported. For purposes of paragraph (i)(2) of this section, an issuer must provide the information required under paragraph (a)(1) of this section, including—

    (i) The date of the deemed distribution under section 305(c) as determined in accordance with § 1.305-7(c)(5) (pursuant to paragraph (a)(1)(iv) of this section); and

    (ii) The amount of the deemed distribution under section 305(c) as determined in accordance with § 1.305-7(c)(4) (pursuant to paragraph (a)(1)(v) of this section).

    (4) Effective/applicability date. Paragraph (i)(2) of this section applies to a deemed distribution under section 305(c) occurring on or after the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register. For purposes of paragraphs (a)(1)(v) and (i)(3)(ii) of this section, an issuer must determine the amount of a deemed distribution under section 305(c) in accordance with § 1.305-7(c)(4) for a deemed distribution occurring on or after the date of publication. For purposes of reporting the amount of a deemed distribution occurring prior to the date of publication, an issuer may determine the amount of the deemed distribution by treating such distribution either as a distribution of a right to acquire stock in accordance with § 1.305-7(c)(4), or as a distribution of the shares of stock that would be received upon exercise of the right. For purposes of paragraphs (a)(1)(iv) and (i)(3)(i) of this section, an issuer must determine the date of a deemed distribution under section 305(c) occurring on or after the date of publication in accordance with § 1.305-7(c)(5). An issuer, however, may rely on § 1.305-7(c)(5) to determine the date of a deemed distribution that occurs prior to the date of publication.

    John M. Dalrymple, Deputy Commissioner for Services and Enforcement.
    [FR Doc. 2016-08248 Filed 4-12-16; 8:45 am] BILLING CODE 4830-01-P
    DEPARTMENT OF EDUCATION 34 CFR Chapter III [Docket ID ED-2016-OSERS-0022; CFDA Number: 84.421B.] Proposed Priorities, Requirements, and Definitions—Disability Innovation Fund—Transition Work-Based Learning Model Demonstrations AGENCY:

    Office of Special Education and Rehabilitative Services, Department of Education.

    ACTION:

    Proposed priorities, requirements, and definitions.

    SUMMARY:

    The Assistant Secretary for Special Education and Rehabilitative Services proposes priorities, requirements, and definitions under the Disability Innovation Fund (DIF) Program. The Assistant Secretary may use these priorities, requirements, and definitions for competitions in fiscal year (FY) 2016 and later years. The Assistant Secretary takes this action to identify, develop, implement, and evaluate effective work-based learning models that will help students with disabilities prepare for postsecondary education and competitive integrated employment. The models must be delivered through a coordinated system of transition services.

    DATES:

    We must receive your comments on or before May 13, 2016.

    ADDRESSES:

    Submit your comments through the Federal eRulemaking Portal or by postal mail, commercial delivery, or hand delivery. We will not accept comments submitted by fax or by email or those submitted after the comment period. To ensure that we do not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments.

    Federal eRulemaking Portal: Go to www.regulations.gov to submit your comments electronically. Information on using Regulations.gov, including instructions for accessing agency documents, submitting comments, and viewing the docket, is available on the site under the “Help” tab.

    Postal Mail, Commercial Delivery, or Hand Delivery: If you mail or deliver your comments about these proposed regulations, address them to RoseAnn Ashby, U.S. Department of Education, 400 Maryland Avenue SW., Room 5057, Potomac Center Plaza (PCP), Washington, DC 20202-5076.

    Privacy Note:

    The U.S. Department of Education's (Department) policy is to make all comments received from members of the public available for public viewing in their entirety on the Federal eRulemaking Portal at www.regulations.gov. Therefore, commenters should be careful to include in their comments only information that they wish to make publicly available.

    FOR FURTHER INFORMATION CONTACT:

    RoseAnn Ashby, telephone: (202) 245-7258, or by email: [email protected]

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

    SUPPLEMENTARY INFORMATION:

    Invitation to Comment: We invite you to submit comments regarding this notice. To ensure that your comments have maximum effect in developing the notice of final priorities, requirements, and definitions, we urge you to identify clearly the specific section of the proposed priority, requirement, or definition that each comment addresses.

    We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed priorities, requirements, and definitions. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.

    During and after the comment period, you may inspect all public comments about this notice by accessing www.regulations.gov. You may also inspect the comments in person in room 5057, 550 12th Street SW., PCP, Washington, DC 20202-5076, between the hours of 8:30 a.m. and 4:00 p.m., Washington, DC time, Monday through Friday of each week except Federal holidays. Please contact the person listed under FOR FURTHER INFORMATION CONTACT.

    Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: On request, we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for this notice. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

    Purpose of Program: The purpose of the DIF Program, as provided by the Consolidated Appropriations Act, 2015 (Pub. L. 113-235), is to support innovative activities aimed at improving the outcomes of “individuals with disabilities,” as defined in section 7(20)(A) of the Rehabilitation Act of 1973, as amended (Rehabilitation Act) (29 U.S.C. 705(20)(A)).

    Program Authority: Consolidated Appropriations Act, 2015 (Pub. L. 113-235).

    PROPOSED PRIORITIES: This document contains three proposed priorities.

    Background:

    Despite emphasis on providing transition services under the Individuals with Disabilities Education Act (IDEA) and Rehabilitation Act, students with disabilities continue to face challenges as they transition from school to post-school activities, including postsecondary education and competitive integrated employment. These students often have lower high school graduation rates, lower postsecondary enrollment rates, and higher unemployment rates than their peers without disabilities (Leucking & Leucking, 2015).

    To address these concerns, the Workforce Innovation and Opportunity Act of 2014 (WIOA) strengthened the emphasis on providing services and supports to students and other youth with disabilities to achieve competitive integrated employment. For example, the Rehabilitation Act, as amended by WIOA, not only expands the population of students with disabilities who may receive services but also broadens the scope of services and supports that State vocational rehabilitation (VR) agencies may provide to students with disabilities who are transitioning from secondary school to postsecondary education and employment.

    In particular, new section 113 of the Rehabilitation Act requires that pre-employment transition services, including work-based learning experiences, job exploration counseling, workplace readiness training, counseling on opportunities for enrollment in comprehensive transition or postsecondary educational programs at institutions of higher education, and instruction in self-advocacy, be made available to students with disabilities who are eligible or potentially eligible for services under the State VR services program. To ensure that pre-employment transition services improve outcomes for students with disabilities, State VR agencies will require models of effective interventions that can be tailored to meet the diverse needs of these students across the Nation.

    The body of literature on transition services identifies work-based learning as a key component in improving outcomes for youth with disabilities. Work-based learning links knowledge gained through work with classroom or related instruction. Work-based learning experiences range in intensity, structure, and scope, and consist of a diverse set of activities such as site visits, job shadowing, paid and unpaid internships, and apprenticeships. Under section 113 of the Rehabilitation Act, work-based learning experiences provided to students with disabilities through the State VR services program may include in-school or after-school opportunities or experiences outside the traditional school setting, such as internships, that are provided in an integrated environment to the maximum extent possible.

    Research has shown a strong relationship between work experiences during secondary school, particularly paid employment, and post-school employment for youth with disabilities. These experiences provide exposure to a range of career options that are otherwise typically limited for youth with disabilities. Work-based learning has long been shown to improve students' self-esteem, to teach and reinforce basic academic and technical skills, to promote an understanding of workplace culture and expectations, and to develop a network for future jobs searches (Luecking, 2009).

    According to the National Collaborative on Workforce and Disability for Youth, quality work-based learning experiences are structured, appropriate to the age and stage of life of the individual, provide exposure to a wide range of work sites, and involve youth in choosing their experiences.

    The Department therefore believes that providing effective work-based learning experiences in integrated settings, with coordination among State VR agencies, State and local educational agencies, and other key partners, can improve post-school outcomes for students with disabilities. However, additional evidence is needed to identify and develop interventions and strategies that provide effective work-based learning experiences in integrated settings and the conditions and circumstances under which interventions are most effective in improving competitive integrated employment outcomes for students with disabilities, especially the coordination of efforts with key partners that are necessary for the success of such interventions.

    Through the DIF Program, the Department has the opportunity to award cooperative agreements to identify and demonstrate work-based learning interventions for students with disabilities that are supported by evidence and will be rigorously evaluated. We believe that the best evidence will come from model demonstrations carried out at the local level by State VR agencies in coordination with State and local educational agencies and other local partners. The priorities, requirements, and definitions proposed in this notice will better enable the Department to direct funds to interventions that address the significant challenges in improving the post-school outcomes of students with disabilities.

    References:

    Luecking, D.M., & Luecking, R.G. (2015). Translating Research into a Seamless Transition Model. Career Development and Transition for Exceptional Individuals, 38(1), 4-13.

    Luecking, R.G. (2009). The Way to Work: How to Facilitate Work Experiences for Youth in Transition. Baltimore, MD: Paul H. Brookes Pub.

    National Collaborative on Workforce and Disability for Youth (NCWD/Youth). Work-Based Learning Jump Start. Available at: www.ncwd-youth.info/work-based-learning.

    Proposed Priority 1: Transition Work-Based Learning Model Demonstrations.

    We give priority to model demonstration projects designed to identify, develop, implement, and evaluate effective work-based learning models that will help ensure that students with disabilities (as defined in this notice) are prepared for postsecondary education and competitive integrated employment (as defined in this notice). The model demonstration projects must provide effective work-based learning experiences in integrated settings, in coordination with other transition services, including pre-employment transition services (as defined in this notice), to students with disabilities, through State VR agencies, in collaboration with local educational agencies (LEAs) or, where appropriate, State educational agencies (SEAs) and other local partners.

    Proposed Priority 2: Evidence of Promise Supporting the Proposed Model.

    We give priority to projects supported by evidence of promise (as defined in this notice).

    Proposed Priority 3: Evaluation of Project that Meets the What Works Clearinghouse Evidence Standards with Reservations.

    We give priority to projects that conduct evaluations that meet the What Works Clearinghouse Evidence Standards (as defined in this notice) with reservations.

    Types of Priorities:

    When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register. The effect of each type of priority follows:

    Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

    Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)), or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

    Invitational priority: Under an invitational priority, we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

    Proposed Requirements: The Assistant Secretary proposes the following project requirements for this program. We may apply one or more of these requirements in any year in which this program is in effect. Each of the following sets of requirements corresponds to one of the proposed priorities.

    Proposed Requirements for Priority 1:

    To be considered for funding under Proposed Priority 1, applicants must describe their plans to carry out the following project requirements—

    (a) Develop and implement a project design that is supported by strong theory (as defined in this notice) that supports the effectiveness (e.g., evidence base) of the proposed model, its components, and the processes to improve the postsecondary education and competitive integrated employment outcomes of students with disabilities;

    (b) Develop and implement a project demonstrating effective practices and strategies in the use of work-based learning experiences in integrated settings to prepare students with disabilities for postsecondary education and competitive integrated employment. The model must be implemented at multiple local sites to ensure its replicability;

    (c) Establish partnerships with the LEA or, as appropriate, the SEA, institutions of higher education, employers, and providers or other agencies that are critical to the development of work-based learning experiences in integrated settings for students with disabilities. At a minimum, the partnership must include representatives from the LEA, workforce training providers (e.g., American Job Centers), and employers who will collaborate to develop and provide opportunities (such as internships, short-term employment, and apprenticeships) for students with disabilities served under the project;

    (d) Provide career exploration and counseling to assist students in identifying possible career pathways (as defined in this notice) and the relevant work-based learning experiences;

    (e) Develop work-based learning experiences in integrated settings, at least one of which must be a paid experience, that—

    (1) Provide exposure to a wide range of work sites to help students make informed choices about career selections;

    (2) Are appropriate for the age and stage in life of each participating student, ranging from site visits and tours, job shadowing, service learning, apprenticeships, and internships;

    (3) Are structured and linked to classroom or related instruction;

    (4) Use a trained mentor to help structure the learning at the worksite;

    (5) Include periodic assessment and feedback as part of each experience; and

    (6) Fully involve students with disabilities and, as appropriate, their representative in choosing and structuring their experiences;

    (f) Provide instruction in employee rights and responsibilities, as well as positive work skills, habits, and behaviors that foster success in the workplace;

    (g) Identify and provide support services, as appropriate, including transportation, that are needed to ensure the student's success in participating in work-based learning experiences;

    (h) Identify, provide, or arrange for accommodations or assistive technology needed to ensure the student's success in participating in work-based learning experiences;

    (i) Develop and implement a plan to measure the model demonstration project's performance and outcomes, including an evaluation of the effectiveness of the practices and strategies implemented by the project. A detailed and complete evaluation plan must include—

    (1) A formative evaluation plan, consistent with the project's logic model (as defined in this notice), that—

    (i) Includes evaluation questions, source(s) for data, a timeline for data collection, and analysis plans;

    (ii) Shows how the outcome (e.g., postsecondary education and competitive integrated employment) and implementation data will be used separately or in combination to improve the project during the performance period; and

    (iii) Outlines how these data will be reviewed by project staff, when they will be reviewed, and how they will be used during the course of the project to adjust the model or its implementation to increase the model's usefulness, generalizability, and potential for sustainability; and

    (2) A summative evaluation plan, including a timeline, to collect and analyze data on students and their outcomes over time, both for students with disabilities served by the project and for students with disabilities in a comparison group not receiving project services. The plan must show how the student outcome and implementation data collected by the project will be used separately or in combination to demonstrate the effectiveness of the model.

    (j) Collect data necessary to evaluate the outcomes of the project, including the progress of the project in achieving its goals and outcomes, which, at a minimum, must include:

    (1) The relevant available RSA-911 Case Service Report data for each student in the project;

    (2) The number of students in the work-based learning project;

    (3) The number of students in the project who complete at least one work-based learning experience;

    (4) The number of work-based learning experiences that each student completes during the project;

    (5) The types of work-based learning experiences in which students participated; and

    (6) The number of students who attain a recognized post-secondary credential and the type of credentials attained;

    (7) The number of students who obtain competitive integrated employment; and

    (8) An unduplicated count of students who obtain a recognized postsecondary credential and competitive integrated employment.

    To be considered for funding under Proposed Priority 1, an applicant also must provide the following with its application:

    (a) A detailed review of the literature that supports the potential effectiveness of the proposed demonstration project, its components, and strategies for work-based learning experiences for students with disabilities;

    (b) A logic model;

    (c) A description of the applicant's plan for implementing the project, including a description of—

    (1) A cohesive, articulated model of partnership and coordination among the participating agencies and organizations;

    (2) The coordinated set of effective practices and strategies in the use and development of work-based learning models that are aligned with employment, training, and education programs and reflect the needs of employers and students with disabilities; and

    (3) How the proposed project will—

    (i) Involve employers in the project design and in partnering with project staff to develop integrated job shadowing, internships, apprenticeships, and other paid and unpaid work-based learning experiences that are designed to increase the preparation of students with disabilities for postsecondary education and competitive integrated employment;

    (ii) Conduct outreach activities to identify students with disabilities for whom the work-based learning experiences would enable them to achieve competitive integrated employment; and

    (iii) Identify innovative strategies, including development, implementation, and evaluation of approved models, methods, and measures, that will increase the preparation of students with disabilities for postsecondary education and competitive integrated employment;

    (d) A description of the methods and criteria that will be used to select the site(s) at which the project activities will be implemented;

    (e) Documentation (e.g., letter of support or draft agreement) that the State VR agency has specific agreements with its partners in the development and implementation of the project;

    (f) A plan for evaluating the project's performance, including an evaluation of the effectiveness of the practices and strategies implemented by the project, in achieving project goals and objectives. Specifically, the evaluation plan must include a description of—

    (1) A formative evaluation plan, consistent with the project's logic model, that includes the following:

    (i) The key questions to be addressed by the project evaluation and the appropriateness of the methods for how each question will be addressed;

    (ii) How the methods of evaluation will provide valid and reliable performance data on relevant outcomes (as defined in this notice), particularly postsecondary and competitive integrated employment outcomes, including the source(s) for the data and the timeline for data collection;

    (iii) A clear and credible analysis plan, including a proposed sample size and minimum detectable effect size that aligns with the expected project impact, and an analytic approach for addressing the research questions; and

    (iv) How the key components of the project, as well as a measurable threshold for acceptable implementation and outcome data, will be reviewed and used to improve;

    (2) A summative evaluation plan, including—

    (i) How the outcomes and implementation data collected by the project will be used, separately or in combination, to demonstrate the effectiveness of the model; and

    (ii) How the outcomes for students with disabilities served by the project will be compared with the outcomes of students with disabilities not receiving project services.

    (g) A plan for systematic dissemination of project findings, templates, resources, and knowledge gained that will assist State and local VR and educational agencies in adapting or replicating the model work-based learning demonstration developed and implemented by the project, which could include elements such as development of a Web site, resources (e.g., toolkits), community of practice, and participation in national and State conferences;

    (h) An assurance that the employment goal for all students served under this priority will be competitive integrated employment, including customized or supported employment (as defined in this notice); and

    (i) An assurance that the project will collaborate with other work-based learning initiatives.

    Proposed Requirements for Priority 2:

    To meet Proposed Priority 2, applicants must meet the following requirements:

    (a) Applicants must identify and include a detailed review of up to two cited studies that meet the evidence of promise standard.

    (b) The links for the citations submitted for this priority must be provided on the Abstract and Information page of the application.

    (c) Applicants must specify on the Abstract and Information page the findings in the studies that are cited as evidence of promise for the proposed project and ensure that the citations and links are from publicly or readily available sources. Studies of fewer than 10 pages may be attached in full under Other Attachments in Grants.gov.

    Proposed Requirements for Priority 3:

    To meet Proposed Priority 3, applicants must describe in their applications how they would meet the following program requirements:

    (a) Conduct an independent evaluation (as defined in this notice) of its project. This evaluation must estimate the impact of the project on a relevant outcome.

    (b) Use methods of evaluation that will produce evidence about the project's effectiveness that meets the What Works Clearinghouse Evidence Standards with reservations.

    (c) Make broadly available the results of any evaluations it conducts of its funded activities, digitally and free of charge, through formal (e.g., peer-reviewed journals) or informal (e.g., newsletters) mechanisms. The grantee must also ensure that the data from its evaluation are made available to third-party researchers consistent with applicable privacy requirements.

    (d) Cooperate on an ongoing basis with any technical assistance provided by the Department or its contractor and comply with the requirements of any evaluation of the program conducted by the Department.

    Definitions:

    Background:

    We propose one new definition for use in connection with the proposed priorities. The remaining definitions listed in this section are established defined terms in WIOA, the Rehabilitation Act, or 34 CFR part 77. We do not propose to alter those definitions, but list them here for the convenience of the reader.

    Proposed Definition:

    The Assistant Secretary proposes the following definition for this program. We may apply this definition in any year in which this program is in effect.

    Independent evaluation means an evaluation that is designed and carried out independent of and external to the grantee but in coordination with any employees of the grantee who develop a process, product, strategy, or practice that is currently being implemented as part of the grant's activities.

    Existing Definitions:

    Career pathway means a combination of rigorous and high-quality education, training, and other services that—

    (a) Aligns with the skill needs of industries in the economy of the State or regional economy involved;

    (b) Prepares an individual to be successful in any of a full range of secondary or postsecondary education options, including apprenticeships registered under the Act of August 16, 1937 (commonly known as the “National Apprenticeship Act”; 50 Stat. 664, chapter 663; 29 U.S.C. 50 et seq.);

    (c) Includes counseling to support an individual in achieving the individual's education and career goals;

    (d) Includes, as appropriate, education offered concurrently with and in the same context as workforce preparation activities and training for a specific occupation or occupational cluster;

    (e) Organizes education, training, and other services to meet the particular needs of an individual in a manner that accelerates the educational and career advancement of the individual to the extent practicable;

    (f) Enables an individual to attain a secondary school diploma or its recognized equivalent, and at least one recognized postsecondary credential; and

    (g) Helps an individual enter or advance within a specific occupation or occupational cluster.

    Source: Section 3(7) of WIOA.

    Competitive integrated employment means work that is performed on a full-time or part-time basis (including self-employment)—

    (a) For which an individual—

    (1) Is compensated at a rate that—

    (i)(A) Is not less than the higher of the rate specified in section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) or the rate specified in the applicable State or local minimum wage law; and

    (B) Is not less than the customary rate paid by the employer for the same or similar work performed by other employees who are not individuals with disabilities, and who are similarly situated in similar occupations by the same employer and who have similar training, experience, and skills; or

    (ii) In the case of an individual who is self-employed, yields an income that is comparable to the income received by other individuals who are not individuals with disabilities, and who are self-employed in similar occupations or on similar tasks and who have similar training, experience, and skills; and

    (2) Is eligible for the level of benefits provided to other employees;

    (b) That is at a location where the employee interacts with other persons who are not individuals with disabilities (not including supervisory personnel or individuals who are providing services to such employee) to the same extent that individuals who are not individuals with disabilities and who are in comparable positions interact with other persons; and

    (c) That, as appropriate, presents opportunities for advancement that are similar to those for other employees who are not individuals with disabilities and who have similar positions.

    Source: Section 7(5) of the Rehabilitation Act.

    Customized employment means competitive integrated employment, for an individual with a significant disability, that is based on an individualized determination of the strengths, needs, and interests of the individual with a significant disability, is designed to meet the specific disabilities of the individual with a significant disability and the business needs of the employer, and is carried out through flexible strategies, such as—

    (A) Job exploration by the individual;

    (B) Working with an employer to facilitate placement including—

    (i) Customizing a job description based on current employer needs or on previously unidentified and unmet employer needs;

    (ii) Developing a set of job duties, a work schedule and job arrangement, and specifics of supervision (including performance evaluation and review), and determining a job location;

    (iii) Representation by a professional chosen by the individual, or self-representation of the individual, in working with an employer to facilitate placement; and

    (iv) Providing services and supports at the job location.

    Source: Section 7(7) of the Rehabilitation Act.

    Evidence of promise means there is empirical evidence to support the theoretical linkage(s) between at least one critical component and at least one relevant outcome presented in the logic model for the proposed process, product, strategy, or practice. Specifically, evidence of promise means the conditions in both paragraphs (i) and (ii) of this definition are met:

    (i) There is at least one study that is a—

    (A) Correlational study with statistical controls for selection bias;

    (B) Quasi-experimental design study that meets the What Works Clearinghouse Evidence Standards with reservations; or

    (C) Randomized controlled trial that meets the What Works Clearinghouse Evidence Standards with or without reservations.

    (ii) The study referenced in paragraph (i) of this definition found a statistically significant or substantively important (defined as a difference of 0.25 standard deviations or larger) favorable association between at least one critical component and one relevant outcome presented in the logic model for the proposed process, product, strategy, or practice.

    Source: 34 CFR 77.1(c).

    Individual with a disability means an individual who—

    (a) Has a physical or mental impairment which for such individual constitutes or results in a substantial impediment to employment; and

    (b) Can benefit in terms of an employment outcome from vocational rehabilitation services provided pursuant to Title I, III, or VI of the Rehabilitation Act.

    Source: Section 7(20) of the Rehabilitation Act.

    Logic model (also referred to as theory of action) means a well-specified conceptual framework that identifies key components of the proposed process, product, strategy, or practice (i.e., the active “ingredients” that are hypothesized to be critical to achieving the relevant outcomes) and describes the relationships among the key components and outcomes, theoretically and operationally.

    Source: 34 CFR 77.1(c).

    Pre-employment transition services means services provided in accordance with section 113 of the Rehabilitation Act.

    Source: Sections 7(30) and 113 of the Rehabilitation Act.

    Quasi-experimental design study means a study using a design that attempts to approximate an experimental design by identifying a comparison group that is similar to the treatment group in important respects. These studies, depending on design and implementation, can meet What Works Clearinghouse Evidence Standards with reservations (but not What Works Clearinghouse Evidence Standards without reservations).

    Source: 34 CFR 77.1(c).

    Randomized controlled trial means a study that employs random assignment of, for example, students, teachers, classrooms, schools, or districts to receive the intervention being evaluated (the treatment group) or not to receive the intervention (the control group). The estimated effectiveness of the intervention is the difference between the average outcomes for the treatment group and for the control group. These studies, depending on design and implementation, can meet What Works Clearinghouse Evidence Standards without reservations.

    Source: 34 CFR 77.1(c).

    Relevant outcome means the student outcome(s) (or the ultimate outcome if not related to students) the proposed process, product, strategy, or practice is designed to improve, consistent with the specific goals of a program.

    Source: 34 CFR 77.1(c).

    Strong theory means a rationale for the proposed process, product, strategy, or practice that includes a logic model.

    Source: 34 CFR 77.1(c).

    Student with a disability means an individual with a disability who—

    (A)(1) Is not younger than the earliest age for the provision of transition services under section 614(d)(1)(A)(i)(VIII) of the Individuals with Disabilities Education Act (20 U.S.C. 1414(d)(1)(A)(i)(VIII)); or

    (2) If the State involved elects to use a lower minimum age for receipt of pre-employment transition services under the Rehabilitation Act, is not younger than that minimum age; and

    (B)(1) Is not older than 21 years of age; or

    (2) If the State law for the State provides for a higher maximum age for receipt of services under the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.), is not older than that maximum age; and

    (C)(1) Is eligible for, and receiving, special education or related services under Part B of the Individuals with Disabilities Education Act (20 U.S.C. 1411 et seq.); or

    (2) Is a student who is an individual with a disability, for purposes of section 504 of the Rehabilitation Act.

    Source: Section 7(37)(A) of the Rehabilitation Act.

    Supported employment means competitive integrated employment, including customized employment, or employment in an integrated work setting in which individuals are working on a short-term basis toward competitive integrated employment, that is individualized and customized consistent with the strengths, abilities, interests, and informed choice of the individuals involved, for individuals with the most significant disabilities—

    (A)(i) For whom competitive integrated employment has not historically occurred; or

    (ii) For whom competitive integrated employment has been interrupted or intermittent as a result of a significant disability; and

    (B) Who, because of the nature and severity of their disability, need intensive supported employment services and extended services after the transition described in section (7)(13)(C) of the Rehabilitation Act, in order to perform the work involved.

    Source: Section 7(38) of the Rehabilitation Act.

    What Works Clearinghouse Evidence Standards means the standards set forth in the What Works Clearinghouse Procedures and Standards Handbook (Version 3.0, March 2014), which can be found at the following link: http://ies.ed.gov/ncee/wwc/DocumentSum.aspx?sid=19.

    Source: 34 CFR 77.1(c).

    Final Priorities, Requirements, and Definitions:

    We will announce the final priorities, requirements, and definitions in a notice in the Federal Register. We will determine the final priorities, requirements, and definitions after considering responses to this notice and other information available to the Department. This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

    Note:

    This notice does not solicit applications. In any year in which we choose to use one or more of these priorities, requirements, and definitions, we invite applications through a notice in the Federal Register.

    Executive Orders 12866 and 13563 Regulatory Impact Analysis

    Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

    (1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);

    (2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

    (3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

    (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

    This proposed regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

    We have also reviewed this proposed regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

    (1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

    (2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

    (3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

    (4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

    (5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

    Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

    We are issuing these proposed priorities, requirements, and definitions only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

    We also have determined that this regulatory action would not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

    In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

    The benefits of similar demonstration projects have been well established over the years through the successful completion and dissemination of the results of similar projects. For example, the projects first funded in FY 2007 to demonstrate collaborative practices that lead to postsecondary education and employment of youth with disabilities have served as a rich source of practices for the VR field. These proposed priorities, requirements, and definitions would promote projects that would serve as models in developing and implementing work-based learning strategies for students with disabilities that could be replicated by other State VR agencies so that such agencies could improve postsecondary education and competitive integrated employment outcomes for students with disabilities.

    Paperwork Reduction Act of 1995

    As part of its continuing effort to reduce paperwork and respondent burden, the Department provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). This helps ensure that: The public understands the Department's collection instructions, respondents can provide the requested data in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the Department can properly assess the impact of collection requirements on respondents.

    These proposed priorities contain information collection requirements that are approved by OMB under the Disability Innovation Fund program—Transition Work-Based Learning Model Demonstrations 1820-0018; this proposed regulation does not affect the currently approved data collection.

    Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

    This document provides early notification of our specific plans and actions for this program.

    Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT.

    Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

    You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

    Dated: April 8, 2016. Michael K. Yudin, Assistant Secretary for Special Education and Rehabilitative Services.
    [FR Doc. 2016-08492 Filed 4-12-16; 8:45 am] BILLING CODE 4000-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R10-OAR-2013-0005: FRL-9944-89-Region 10] Finding of Attainment and Approval of Attainment Plan for Klamath Falls, Oregon Fine Particulate Matter Nonattainment Area AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to make a finding of attainment by the attainment date for the Klamath Falls, Oregon nonattainment area (the area) based upon quality-assured, quality-controlled, and certified ambient air monitoring data showing that the area has monitored attainment of the 2006 24-hour fine particulate matter (PM2.5) National Ambient Air Quality Standards (NAAQS) based on the 2012-2014 data available in the EPA's Air Quality System (AQS) database. The proposed finding of attainment does not constitute a redesignation to attainment. Redesignations require states to meet a number of criteria including EPA approval of a state plan to maintain the air quality standard for 10 years after redesignation.

    The EPA also proposes to approve revisions to Oregon's State Implementation Plan (SIP) consisting of the Klamath Falls Fine Particulate Matter Attainment Plan (attainment plan) and approve and incorporate by reference associated revisions to the Oregon Administrative Rules (OAR), submitted by the Oregon Department of Environmental Quality (ODEQ) on December 12, 2012. The purpose of the attainment plan was to attain the 2006 24-hour PM2.5 NAAQS by the December 2014 attainment date included in the plan, which the area met based on 2012-2014 monitoring data.

    The attainment plan addressed the nonattainment planning requirements of the Clean Air Act (CAA or Act). The attainment plan included comprehensive base year and attainment year emissions inventories for direct PM2.5 emissions and all particulate matter precursors, analysis and selection of reasonably available control measures and reasonably available control technologies (RACM and RACT), demonstrated attainment through selected permanent and enforceable control strategies, included required contingency measures, and addressed reasonable further progress and quantitative milestone requirements through the attainment demonstration. The attainment plan's strategy for controlling direct and precursor PM2.5 emissions relied primarily on an episodic woodstove curtailment program and a program to change-out uncertified woodstoves. Additional emissions reductions came from control measures and activities associated with industrial sources and motor vehicles.

    DATES:

    Comments must be received on or before May 13, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R10-OAR-2013-0005 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information that is restricted by statute from disclosure. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available at http://www.regulations.gov or at EPA Region 10, Office of Air, Waste and Toxics, 1200 Sixth Avenue, Seattle, Washington 98101. The EPA requests that you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Justin A. Spenillo at (206) 553-6125, [email protected], or the above EPA, Region 10 address.

    SUPPLEMENTARY INFORMATION:

    Throughout this document, wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA.

    Table of Contents I. Background for the EPA's Proposed Action A. History of the PM2.5 Standard B. Effect of the January 4, 2013 D.C. Circuit Decision Regarding PM2.5 Implementation Under Subpart 4 C. CAA PM2.5 Nonattainment Area Requirements D. Klamath Falls Particulate Matter History II. Finding of Attainment and Clean Data Determination III. Analysis of Oregon's Submittal Previously Approved Attainment Plan Elements A. Emissions Inventory B. Control Measures—Oregon Rules and Klamath County Ordinance C. Classifications Attainment Plan Elements Proposed for Approval D. Attainment Date E. Attainment Demonstration F. Modeling G. Characterization of Klamath Falls Air Shed H. Reasonably Available Control Measures/Reasonably Available Control Technology (RACT/RACM) I. Contingency Measures J. Reasonable Further Progress (RFP) and Quantitative Milestones Additional Elements K. Conformity Requirements L. Klamath Falls Exceptional Event Demonstration and Concurrence IV. Proposed Action V. Incorporation by Reference VI. Statutory and Executive Order Reviews I. Background for the EPA's Proposed Action A. History of the PM2.5 Standard

    On July 18, 1997, the EPA established the 1997 PM2.5 NAAQS, including an annual standard of 15.0 µg/m 3 based on a 3-year average of annual mean PM2.5 concentrations, and a 24-hour (or daily) standard of 65 µg/m 3 based on a 3-year average of the 98th percentile of 24-hour concentrations (62 FR 38652). The EPA established the 1997 PM2.5 NAAQS based on significant evidence and numerous health studies demonstrating the serious health effects associated with exposures to PM2.5. To provide guidance on the CAA requirements for state and tribal implementation plans to implement the 1997 PM2.5 NAAQS, the EPA promulgated the “Final Clean Air Fine Particle Implementation Rule” (72 FR 20586, April 25, 2007) (hereinafter, the “2007 PM2.5 Implementation Rule”).

    On October 17, 2006, the EPA strengthened the 24-hour PM2.5 NAAQS to 35 µg/m 3 and retained the level of the annual PM2.5 standard at 15.0 µg/m 3 (71 FR 61144). Following promulgation of a new or revised NAAQS, the EPA is required by the CAA to promulgate designations for areas throughout the United States; this designation process is described in section 107(d)(1) of the CAA. On November 13, 2009, the EPA designated areas as either attainment/unclassifiable or nonattainment with respect to the revised 2006 24-hour PM2.5 NAAQS (74 FR 58688). In that November 2009 action, the EPA designated Klamath Falls, Oregon, as nonattainment for the 2006 24-hour PM2.5 NAAQS, requiring Oregon to prepare and submit an attainment plan for the Klamath Falls area to meet the revised 24-hour PM2.5 NAAQS. On March 2, 2012, the EPA issued “Implementation Guidance for the 2006 24-Hour Fine Particulate (PM2.5) National Ambient Air Quality Standards (NAAQS)” to provide guidance on the development of SIPs to demonstrate attainment with the revised 24-hour standard (March 2012 Implementation Guidance). The March 2012 Implementation Guidance explained that the overall framework and policy approach of the 2007 PM2.5 Implementation Rule provided effective and appropriate guidance on statutory requirements for the development of SIPs to attain the 2006 24-hour PM2.5 NAAQS. Accordingly, the March 2012 Implementation Guidance instructed states to rely on the 2007 PM2.5 Implementation Rule in developing SIPs to demonstrate attainment with the 2006 24-hour PM2.5 NAAQS.

    B. Effect of the January 4, 2013 D.C. Circuit Court Decision Regarding PM2.5 Implementation Under Subpart 4

    On January 4, 2013, the D.C. Circuit Court issued a decision in NRDC v. EPA, 706 F.3d 428, holding that the EPA erred in implementing the 1997 PM2.5 NAAQS pursuant to the general implementation provisions of subpart 1 of Part D of Title I of the CAA (subpart 1), rather than the particulate-matter-specific provisions of subpart 4 of Part D of Title I (subpart 4). The Court did not vacate the 2007 PM2.5 Implementation Rule but remanded the rule with instructions for the EPA to promulgate new implementation regulations for the PM2.5 NAAQS in accordance with the requirements of subpart 4. On June 6, 2013, consistent with the Court's remand decision, the EPA withdrew its March 2012 Implementation Guidance which relied on the 2007 PM2.5 Implementation Rule to provide guidance for the 2006 24-hour PM2.5 NAAQS.

    Prior to the January 4, 2013 Court decision, states had worked towards meeting the air quality goals of the 2006 PM2.5 NAAQS in accordance with the EPA regulations and guidance derived from subpart 1 of Part D of Title I of the CAA. The EPA considered this history in issuing the PM2.5 Subpart 4 Nonattainment Classification and Deadline Rule (79 FR 31566, June 2, 2014) that identified the initial classification under subpart 4 for areas currently designated nonattainment for the 1997 and/or 2006 PM2.5 standards as moderate. The final rule also established December 31, 2014 as the deadline for the states to submit any additional SIP elements related to attainment.

    The ODEQ submitted an attainment plan for Klamath Falls on December 12, 2012. The plan included measures to demonstrate attainment in December 2014. Concurrent with the December 31, 2014 deadline for submitting any supplements necessary to address possible subpart 4 elements, Klamath Falls came into attainment based on 2012-2014 monitoring data. Leading up to December 31, 2014 deadline, both the ODEQ and the EPA followed monitoring data closely to ensure that the area was meeting targets consistent with the modeling demonstration submitted in the attainment plan. Because the area was on a path toward attainment by December 2014 and the submitted attainment plan substantively addressed the specific PM2.5 problems in the airshed, the ODEQ did not submit a supplement to its attainment plan. Therefore, the EPA evaluated the State's existing attainment plan submission for the 2006 PM2.5 NAAQS to determine that it met not only the applicable requirements of subpart 1, but also the applicable requirements of subpart 4. This approach is consistent with the Court's decision that the EPA must implement the PM2.5 NAAQS consistent with the requirements of subpart 4. In this notice, the EPA reviews the ODEQ's attainment plan submitted to comply with the requirements of subpart 1 and provides an evaluation of why we believe the submittal also satisfies subpart 4 requirements, including the applicable attainment date, and an analysis of all sources of particulate matter emissions and PM2.5 precursors for control strategies.

    C. CAA PM2.5 Moderate Area Nonattainment Requirements

    With respect to the requirements for attainment plans, the EPA notes that the general nonattainment area planning requirements are found in subpart 1, and the moderate area planning requirements for particulate matter are found in subpart 4. The EPA has a longstanding general guidance document that interprets the 1990 amendments to the CAA commonly referred to as the “General Preamble” (57 FR 13498, April 16, 1992). The General Preamble addresses the relationship between subpart 1 and subpart 4 requirements and provides recommendations to states for meeting statutory requirements for particulate matter nonattainment planning. Specifically, the General Preamble explains that requirements applicable to moderate area nonattainment SIPs are set forth in subpart 4, but such SIPs must also meet the general nonattainment planning provisions in subpart 1, to the extent these provisions “are not otherwise subsumed by, or integrally related to,” the more specific subpart 4 requirements (57 FR 13538, April 16, 1992). Additionally, the EPA proposed the Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements rule (80 FR 15340, March 23, 2015), to clarify our interpretation of the statutory requirements that apply to Moderate and Serious PM2.5 nonattainment areas (NAAs) under subparts 1 and 4.

    The requirements of subpart 1 for attainment plans include: (1) The section 172(c)(1) requirements for reasonably available control measures (RACM), reasonably available control technology (RACT) and attainment demonstrations; (2) the section 172(c)(2) requirement to demonstrate reasonable further progress (RFP); (3) the section 172(c)(3) requirement for emissions inventories; (4) the section 172(c)(5) requirements for a nonattainment new source review (NSR) permitting program; and (5) the section 172(c)(9) requirement for contingency measures.

    The subpart 4 requirements for moderate areas are generally comparable with the subpart 1 requirements and include: (1) The section 189(a)(1)(A) NSR permit program requirements; (2) the section 189(a)(1)(B) requirements for attainment demonstration; (3) the section 189(a)(1)(C) requirements for RACM; and (4) the section 189(c) requirements for RFP and quantitative milestones. In addition, under subpart 4 the moderate area attainment date is no later than the end of the 6th calendar year after designation.

    The EPA evaluated the ODEQ's attainment plan for the Klamath Falls area for the 2006 24-hr PM2.5 NAAQS and believes that the State's submission satisfies the relevant requirements of both subpart 1 and subpart 4, as discussed below.

    D. Klamath Falls Particulate Matter History

    The Klamath Falls area has a history of successfully addressing particulate matter for over 25 years. In 1987, the EPA designated Klamath Falls a nonattainment area for PM10—particulate matter ten micrometers and smaller. The ODEQ prepared a PM10 attainment plan for the Klamath Falls Urban Growth Boundary (UGB) in 1991. The ODEQ revised and re-submitted the plan in 1995, and the EPA approved it on April 14, 1997 (62 FR 18047). The area's monitor began attaining the standard in 1992 and has not exceeded the standard since that time. In 2002, the ODEQ submitted a redesignation request and maintenance plan for PM10. This plan demonstrated that the necessary control strategies were in place to maintain the PM10 NAAQS and the EPA approved the plan on October 21, 2003 (68 FR 60036). The attainment and maintenance plans relied on a mandatory episodic woodstove curtailment program and a large woodstove change-out program to reduce emissions from the primary contributor of particulate matter in the area. Additional measures provided control on industrial emissions and are discussed later in this notice. The area has continued to maintain the PM10 NAAQS.

    In 1997, the EPA revised the particulate standard to include PM2.5 (particulate matter 2.5 micrometers in diameter and smaller) at a daily standard of 65 μg/m3. Due to the same set of control measures that it used to address exceedances of the PM10 standard, Klamath Falls successfully remained below the PM2.5 standard promulgated in 1997. When the EPA tightened the PM2.5 standard from 65μg/m3 to 35μg/m3 in 2006, Klamath Falls was found to be exceeding the new standard. The EPA subsequently designated the area as nonattainment for the 2006 24-hour PM2.5 standard in November 2009, prompting the adoption of more stringent control measures and submission of the attainment plan in 2012.

    II. Finding of Attainment and Clean Data Determination

    Pursuant to sections 179(c) and 188(b)(2) of the Act, the EPA has the responsibility of determining within six months of the applicable attainment date whether nonattainment areas attained the NAAQS based on certified air quality data. The EPA reviewed the PM2.5 ambient air monitoring data from the Peterson School regulatory monitor (AQS site 41-035-0004 POC1), consistent with the requirements contained in 40 CFR part 50, as recorded in the EPA Air Quality System (AQS) database for the Klamath Falls area. For purposes of determining attainment by the attainment date, the EPA considered data recorded in the AQS database, certified as meeting quality assurance requirements, and determined to have met data completeness requirements. On the basis of this review, the EPA has concluded that the Klamath Falls area attained the 2006 24-hour PM2.5 NAAQS during the 2012-2014 monitoring period—http://www.epa.gov/airtrends/values.html. Specifically, under the EPA regulations at 40 CFR 50.7, the 24-hour primary and secondary PM2.5 NAAQS are met when the 98th percentile 24-hour concentration is less than or equal to 35 μg/m3. The design value (the metrics calculated in accordance with 40 CFR part 50, appendix N, for determining compliance with the NAAQS) for the 2006 24-hour PM2.5 NAAQS for the years 2012-2014 at the Peterson School monitor was 34 μg/m3, meeting the 2006 24-hour PM2.5 NAAQS by the applicable attainment date established in the 2012 attainment plan. As a result, the EPA proposes to determine that the area has attained the 2006 24-hour PM2.5 NAAQS.

    Additionally, the EPA is proposing to determine that the area has clean data for the 2006 24-hour PM2.5 NAAQS. This determination is based upon quality-assured, quality-controlled, and certified ambient air monitoring data showing that the area has monitored attainment of the 2006 PM2.5 NAAQS based on 2012-2014 monitoring data, discussed above. Under a Clean Data Determination (CDD), the requirements for the area to submit an attainment demonstration, associated RACM, RFP plan, contingency measures, and any other planning SIP requirements related to attainment of the 2006 24-hour PM2.5 NAAQS would be suspended for so long as the area continues to meet this NAAQS. If EPA subsequently determines that the area is in violation of the 2006 24-hour PM2.5 NAAQS, the basis for the suspension of the specific requirements, set forth at 40 CFR 51.1004(c), would no longer exist and the area would thereafter have to address the pertinent requirements. Although a CDD suspends the requirement for submission of certain attainment planning elements, it does not relieve the EPA of its responsibility to take action on a state's SIP submission. As described in this action, the EPA is proposing to fully approve the remaining elements of the Klamath Falls nonattainment plan as meeting the requirements of the CAA.

    The proposed finding of attainment by the attainment date and clean data determination that the air quality data shows attainment of the 2006 24-hour PM2.5 NAAQS is not equivalent to the redesignation of the area to attainment. This proposed action, if finalized, will not constitute a redesignation to attainment under section 107(d)(3) of the CAA, because the state must have an approved maintenance plan for the area as required under section 175A of the CAA, and a determination that the area has met the other requirements for redesignation in order to be redesignated to attainment. The designation status of the area will remain nonattainment for the 2006 PM2.5 NAAQS until such time as the EPA determines that the area meets the CAA requirements for redesignation to attainment in CAA section 107(d)(3)(E).

    III. Analysis of Oregon's Submittal

    In accordance with Sections 172(c) and 189 of the CAA, the attainment plan that the ODEQ submitted for the Klamath Falls area included comprehensive base year and attainment year emissions inventories that addressed direct particulate matter emissions and all particulate matter precursors, analyzed RACM and RACT, demonstrated attainment through selected permanent and enforceable control strategies, included required contingency measures, and addressed reasonable further progress and quantitative milestone requirements through the attainment demonstration. The attainment plan's strategy for controlling direct and precursor PM2.5 emissions relied primarily on an episodic woodstove curtailment program and the change-out of uncertified woodstoves. Additional emissions reductions came from control measures and activities associated with industrial sources, motor vehicles, and public education.

    The rule revisions submitted by the ODEQ and the ordinances passed by Klamath County support the implementation of these control measures in a manner that is both permanent and enforceable. The EPA approved, on August 25, 2015, the baseline emissions inventory and control measures associated with this attainment plan (80 FR 51470). By including these measures in the SIP, the state has made them permanent and enforceable, and with the EPA's approval of these control measures on August 25, 2015, the measures have become federally enforceable. This submittal also addresses transportation conformity budgets and the EPA's proposed approval to exclude data from wildfire exceptional events affecting data on September 25, 2009 (for purposes of the attainment demonstration), August 25, 2012, August 28, 2012, August 31, 2012, July 30, 2013, and August 5, 2013 (for purposes of the finding of attainment) that affected the regulatory monitor in Klamath Falls.

    Previously Approved Attainment Plan Elements A. Emissions Inventory

    The baseline emission inventory requirements were approved in an action completed on August 25, 2015 (80 FR 51470). The approved emissions inventory covered direct PM2.5 and precursors to the formation of PM2.5 (nitrogen oxides (NOX), volatile organic compounds (VOCs), ammonia (NH3), and sulfur dioxide (SO2)) to meet the comprehensive emissions inventory requirement of CAA section 172(c) for the 2006 24-hour PM2.5 NAAQS. The emissions inventory applicable to the attainment demonstration and the attainment year inventory will be discussed in the Modeling and Attainment Demonstration sections of this notice.

    B. Control Measures—Oregon Rules and Klamath County Ordinance

    The December 12, 2012 attainment plan submitted by the ODEQ included revisions to a number of administrative rules to implement the attainment plan for the Klamath Falls area. These revisions consisted of updates to identify the Klamath Falls nonattainment area and to adopt local and state measures to ensure permanent and enforceable control strategies and contingency measures, as described in the attainment plan, to bring the area back into attainment in the event the area failed to meet RFP or failed to attain the NAAQS by the applicable attainment date. Specifically, the ODEQ revised rules in OAR 340, Divisions 200, 204, 225, 240, 262, and 264. The EPA already provided notice and comment on these rules, except for the contingency measures, and proposed to approve the rules on December 30, 2014 (79 FR 78372) and finalized the action on August 25, 2015 (80 FR 51470). These control measures were relied upon by Klamath Falls to attain the standard by 2014 and will remain in place for continued maintenance of the standard. Further details on these control measures can be found in the docket for this action within the Klamath Falls attainment plan submittal as well as in the proposed and final Federal Register notices approving these measures.

    C. Classifications

    The applicable attainment planning requirements under subpart 4 (section 189(a) and (b)) depend on whether the nonattainment area is classified as moderate or serious. In response to the Court's decision in NRDC v. EPA, the EPA finalized on June 2, 2014, initial classifications of all current 1997 and 2006 PM2.5 nonattainment areas as moderate (79 FR 31566). Thus, the attainment plan submitted by the ODEQ for the Klamath Falls area is evaluated pursuant to the moderate area requirements of subpart 4.

    Attainment Plan Elements Proposed for Approval D. Attainment Date

    The CAA requirements of subpart 4 include a demonstration that a nonattainment area will meet applicable NAAQS within the timeframe provided in the statute (Section 189(c)(1)). For the 2006 PM2.5 24-hour NAAQS, an attainment plan must show that a moderate nonattainment area will attain the standard as expeditiously as practicable but no later than the end of the sixth calendar year after the area's designation, which in the case of Klamath Falls is December 31, 2015. In the Klamath Falls attainment plan the ODEQ demonstrated that attainment by December 2014 was as expeditious as practicable based on the implementation of all reasonably available control measures (RACM) and that the attainment date could not be advanced by a year or more with additional reasonable measure (e.g. RACM). The EPA is proposing to approve the attainment date of December 2014 as submitted by the ODEQ, which the area successfully met as confirmed by quality-assured, quality-controlled, and certified ambient air monitoring data.

    E. Attainment Demonstration

    Section 189(a)(1)(B) requires that a moderate area nonattainment plan contain either a demonstration that the plan will provide for attainment by the applicable attainment date, or a demonstration that attainment by such date is impracticable. In the attainment demonstration section of the Klamath Falls PM2.5 attainment plan, the ODEQ described how its chosen control strategies would provide the emissions reductions needed to bring the area into attainment no later than December 2014. Quality-assured, quality-controlled, and certified ambient air monitoring data confirm that the area has attained the 2006 24-hour PM2.5 NAAQS by December 2014.

    Table 1—Attainment Demonstration Strategies for the Klamath Falls Area Control strategies Projected air quality
  • benefit
  • (μg/m3)
  • Baseline Design Value 2008 45.1 Klamath Clean Air Ordinance (updated) 9.6 • Woodstove curtailment—lower thresholds and increased enforcement • Shorter open burning window Woodstove Change-out Programs 1.0 Heat Smart—woodstove change-out upon sale of home 0.3 Maximum Achievable Control Technology (MACT) particleboard and hardboard 0.1 Public Awareness 0.6 New fireplace standards 0.1 Transportation and Fuel Related Emissions Minimal • Diesel Retrofits • Low Emission Vehicle Program • Fuel Economy Road Paving Minimal Future Design Value 2014 34.6 * * The individual emission reduction estimates in this table are derived from the modeled Future Design Value in 2014. The air quality benefit for individual control measures were assessed in isolation and are presented as such in Table 1. Because the control strategies interact nonlinearly, the final design value is not a simple subtraction of the individual measures' benefits from the baseline design value. When all control strategies are simulated together, their benefit is less than it would appear because, for instance, the curtailment ordinance has a smaller benefit when stoves have been changed out to be cleaner.

    Using the values in Table 1, results from the roll-forward modeling showed that the control strategies would achieve a future year design value of 35 μg/m3 with a relative response factor (RRF) of 0.717, as explained in more detail in the modeling discussion. In order to provide a buffer to ensure attainment, the ODEQ, Klamath Falls, and Klamath County implemented additional measures which yielded a modeled design value of 34.6 μg/m3 with an RRF of 0.667. As noted in the RACM/RACT discussion later in this document, more than 95% of the projected control strategy air quality benefits came from the Klamath Falls Clean Air Ordinance wood smoke curtailment program (the Ordinance), woodstove change-out program, and the Heat Smart program. The ODEQ and Klamath County relied on the Ordinance and the woodstove change-out program to successfully attain the 2006 PM2.5 NAAQS. The woodstove curtailment program restricts residential wood burning on days when the ambient PM2.5 levels are close to exceeding the standard. Additional reductions came from the control of industrial sources and from continuing reductions in direct PM2.5 emissions from cleaner motor vehicles, as described later in this document.

    The ODEQ included a number of supplemental analyses in the attainment plan for a weight of evidence demonstration of attainment, as recommended by the EPA's modeling guidance. Attachments 3.3 b-e, g-o, w, and y of the submitted plan (located in the docket) describe the Klamath Falls airshed, the source sector contributions, and the ability of emission controls to reduce PM2.5 concentrations.

    The ODEQ identified wood burning emissions as the most significant source sector in the emissions inventory and thus the key source sector to attainment with its readily available emissions reductions. Accordingly, in formulating an emissions control strategy, the ODEQ conducted detailed wood burning surveys for the Klamath Falls area, assessed the contribution of secondary organic aerosol to overall PM2.5, used locally-derived estimates for how well wood burners follow the yellow and red curtailment requirements, assessed the impact of prescribed burning on wintertime PM2.5, and used the best available emission factors for wood burning devices. This level of analysis is consistent with other moderate nonattainment areas where wood burning is a significant issue.

    In addition to demonstrating attainment using the roll-forward model, the ODEQ also conducted an unmonitored area analysis (UMAA) to demonstrate that other parts of the nonattainment area would also meet the 2006 24-hour PM2.5 NAAQS. This analysis used data from seven monitors in the area for a saturation survey in 2010-2011 to develop a map of PM2.5 concentration relative to the main monitor at the Peterson School. The UMAA calculated the PM2.5 from point sources at 1.2 kilometer intervals in the nonattainment area and added this calculation to the projected concentration from all other sources. Results from the UMAA showed that the Peterson Area monitor is the area of highest neighborhood-scale concentration, such that one could reasonably infer that unmonitored areas of the nonattainment area were in attainment based on a finding of attainment at the Peterson Area monitor.

    F. Modeling

    All attainment demonstrations must project air quality below the standard using standard modeling techniques. The ODEQ submitted a modeled demonstration that is consistent with the recommendations contained in EPA's modeling guidance document “Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for Ozone, PM2.5, and Regional Haze” (EPA-454/B-07-002, April 2007) and the June 28, 2011, memorandum from Tyler Fox to Regional Air Program Managers, “Update to the 24-hour PM2.5 Modeled Attainment Test.” Modeling should be based on national (e.g., EPA), regional (e.g., Western Regional Air Partnership) or local modeling, or a combination thereof, if appropriate. The April 2007 guidance indicates that states should review supplemental analyses, in combination with the modeling analysis, in a “weight of evidence” assessment to determine whether each area is likely to achieve timely attainment.

    To determine which control strategies to implement, the ODEQ began by characterizing the area's emissions. Along with developing the 2008 baseline emissions inventory, the ODEQ also conducted a series of analyses to better understand particulate matter in Klamath Falls. This included conducting and reviewing studies, analyzing filter samples, and modeling.

    For modeling attainment in Klamath Falls, the ODEQ used a roll-forward model as the basis for projecting future design values and the effect of control strategies. A standard roll-forward model assumes all sources contribute to the Peterson School monitor in proportion to their weight in the emissions inventory. This is a reasonable assumption for most source categories which were mostly direct PM2.5 because they are relatively well-distributed within the nonattainment area, but for certain source categories such as large point sources, prescribed burning, and road dust, this assumption is not always accurate. For these three source categories, effective primary PM2.5 and PM2.5 precursor emission rates were derived from additional analyses including AERMOD atmospheric dispersion modeling for large point sources, positive matrix factorization (PMF) modeling for road dust, and analysis of historical prescribed burning and its impact on PM2.5 at the Peterson School monitor. The ODEQ developed several emissions inventories for modeling, one for the current emissions for the baseline year of 2008 and two for the attainment year of 2014. The projected 2014 attainment year inventory accounts for all changes (i.e. vehicle fleet turnover, population changes) that were expected to occur from 2008 to 2014, except for the locally imposed control strategies. The ODEQ then applied each local control strategy to the 2014 modeling inventory in isolation, and as a group, as part of developing the control 2014 inventory for modeling. When each of these modeling inventories was run through the model, the ODEQ was able to estimate the relative change in PM2.5 resulting from each control strategy in isolation and from all control strategies at the same time. See Table 1 in the Attainment Demonstration section.

    The relative change in modeled, species-specific PM2.5 concentrations at the Peterson School monitor between the 2014 control strategy run and the 2008 baseline is referred to as a Relative Response Factor (RRF). The ODEQ calculated RRFs separately for each chemical component of PM2.5, per the EPA modeling guidance. The RRFs for ammonium, sulfate, nitrate, and particle-bound water were held at 1.0 (i.e. constant), which is a conservative assumption implying that there will be no reduction in precursor emissions. However, NOX emissions are projected to decline from 2,236 tons per year (tpy) in 2008 to 1,810 tpy in 2014, VOC emissions are projected to decline from 2,910 tpy in 2008 to 2,645 in 2014, and ammonia emission inventories are projected to remain fairly level at 244 tpy in 2008 and 247 tpy in 2014. The RRF for organic carbon and elemental carbon are allowed to fluctuate based on projected emissions and the model, but the RRF for organic aerosol does not account for changes in secondary organic aerosol because a chemical box model analysis conducted by the ODEQ and Portland State University (Appendix A-6-1 of the attainment plan) found that contributions from both biogenic and anthropogenic secondary organic aerosol (SOA) sources were minor (less than 1% and 3%, respectively, of total design value PM2.5). By keeping the RRF constant for secondary PM2.5, the ODEQ took a conservative approach in modeling emission reductions because the emissions inventory values for most secondary PM2.5 precursors were projected to decline between 2008 and 2014 due to control measures already in place. In the attainment plan submission, SO2 emission inventories were projected to increase slightly from 110 tpy in 2008 to 136 tpy in 2014. However, it is important to note that 32.2 tpy of projected growth in the SO2 emissions inventory was due to the anticipated addition of the Klamath Falls Bioenergy facility that was expected to be built by 2014. This facility has since withdrawn its application for a site certification and will not be constructed. Removing these projected emissions results in a net decrease of 6.2 tpy in overall projected SO2 emissions from 2008 to 2014.

    The ODEQ applied the species-specific RRFs to the baseline 2006-2010 monitored data based on the EPA's guidance to estimate 2014 design values. The modeling projected an attainment date of December 2014 which the area achieved. The EPA carefully evaluated the ODEQ's modeling demonstration and concluded that it adequately meets the current EPA modeling requirements, and uses acceptable modeling techniques to project attainment by the December 2014 attainment date.

    In addition, the EPA believes that the attainment demonstration modeling submitted by the ODEQ meets subpart 4 requirements. First, section 189(a)(1)(B) provides that for a moderate nonattainment area, a state must submit either a demonstration (including air quality modeling) that the plan will provide for attainment by the applicable attainment date or a demonstration that attainment by such date is impracticable. The applicable attainment date for moderate areas in section 188(c)(1) of subpart is as expeditiously as practicable but no later than the end of the sixth calendar year after the area's designation, or, as applied to Klamath Falls, December 2015. The ODEQ's modeling demonstrated attainment by December 2014, which is a year earlier than the December 2015 attainment deadline. Second, the modeling relied upon by the ODEQ included both direct PM2.5 and PM2.5 precursors. The ODEQ's weight of evidence analysis is further supported by quality-assured, quality-controlled, and certified ambient air monitoring data showing that the area has monitored attainment of the 2006 24-hour PM2.5 NAAQS based on the 2012-2014 data. For these reasons, the EPA proposes to find that the ODEQ's modeling is consistent with EPA's guidance and meets the attainment demonstration requirements of subparts 1 and 4.

    G. Characterization of the Klamath Falls Air Shed

    In evaluating the Klamath Falls attainment plan under the requirements of subpart 4, control of direct PM2.5 and precursors must be considered. According to CAA section 302(g) the term “air pollutant” means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and by product material) substance or matter which is emitted into or otherwise enters the ambient air. Such term includes any precursors to the formation of any air pollutant, to the extent the Administrator has identified such precursor or precursors for the particular purpose for which the term “air pollutant” is used. The provisions of subpart 4 do not define the term “precursor” for purposes of particulate matter, nor do they explicitly require the control of any specifically identified precursor. However, the EPA has long recognized the scientific basis for concluding that SO2, NOX, VOC, and ammonia are precursors to PM10 and to PM2.5.1

    1See EPA's 2007 PM2.5 Implementation Rule at issue in the NRDC v. EPA case in which EPA discussed that emissions of SO2, NOX, VOCs and ammonia are factual and scientific precursors to PM2.5. 72 FR 20586, at 20589-97. April 25, 2007.

    The EPA's interpretation of section 189(e) and section 172 indicates that consideration of all precursors is necessary for PM2.5 attainment plans, and RACM/RACT requirements explicitly require the evaluation of available control measures for direct PM2.5 emissions and precursor emissions from stationary, area, and mobile sources in order to attain as expeditiously as practicable. Section 189(e) requires the control of appropriate precursors from major stationary sources, unless the Administrator determines that precursor emissions from such major stationary sources do not contribute significantly to nonattainment in the area.2

    2 EPA notes that it has already addressed the requirements of subpart 4 for precursors, specifically within the context of the requirements of section 189(e), in the General Preamble. See 57 FR at 13539 and 13541-2, April 16, 1992.

    While subpart 4 expressly requires control of precursors from major stationary sources where direct PM from major sources is controlled unless certain conditions are met, other sources of precursors may also need to be controlled for the purposes of demonstrating attainment as expeditiously as practicable in a given area. Thus, a state should evaluate all economically and technologically feasible control measures for direct PM2.5 and PM2.5 precursor emissions, and should adopt those measures that are deemed reasonably available, i.e., those constituting RACM and RACT controls for sources located in the area. The EPA has interpreted subpart 4 to require analysis for control of precursors from all source categories in a given nonattainment area, unless there is a demonstration that controlling a precursor or precursors is not necessary for expeditious attainment of the NAAQS in the area. This notice will demonstrate that additional precursor controls beyond those discussed in Oregon's 2012 attainment plan submission will not affect expeditious attainment of the NAAQS in the Klamath Falls area; moreover the area is already attaining the NAAQS with existing controls and additional precursor controls are unnecessary for expeditious attainment.

    As discussed in the EPA's 1992 General Preamble, in the event that a state's attainment plan includes controls on major stationary sources for PM10 in order to achieve timely attainment in the area, section 189(e) requires controls of all PM10 precursors for major stationary sources located within the area, unless there is a showing that such sources do not contribute significantly to violations in the area (57 FR 13541, April 16, 1992). Thus, the EPA's existing interpretation of subpart 4 requirements with respect to precursors in attainment plans for PM10, as set out in the General Preamble, contemplates that states may develop attainment plans that regulate only those precursors that are necessary for purposes of attainment in the area in question, i.e., states may determine that only certain precursors need be regulated for attainment purposes. Id.; see also Assoc. of Irritated Residents v. EPA, et al., 423 F.3d 989 (9th Cir. 2005). The EPA believes that application of this same approach to PM2.5 precursors under subpart 4 is appropriate and reasonable at this time. Indeed, the EPA has already taken action upon attainment plans for the 1997 PM2.5 NAAQS in other areas after carefully evaluating the state's conclusions regarding which PM2.5 precursors should be regulated in the area at issue.3

    3See, e.g., “Approval and Promulgation of Implementation Plans; California; 2008 San Joaquin Valley PM2.5 Plan and 2007 State Strategy,” (76 FR 69896, November 9, 2011).

    The General Preamble describes the assessment of precursors as specific to each nonattainment area, and acknowledges that the determination of precursor significance would likely vary based on the characteristics of the area-wide nonattainment problem. The General Preamble further provides that in making a determination regarding the significance of precursors, the EPA will rely on technical information presented in the state's submittal, including filter analysis, the relative contribution to overall nonattainment, the selected control strategies, as well as other relevant factors (57 FR 13541, April 16, 1992). The remanded 2007 PM2.5 Implementation Rule also discusses the types of technical analyses that states could perform to demonstrate the significance or insignificance of a particular precursor for purposes of attainment, such as emission inventory information, speciation data information, modeling, or monitoring data.

    For the reasons discussed in this section, the EPA believes that the ODEQ's attainment plan adequately evaluated emissions of direct PM2.5 and PM2.5 precursors as demonstrated in the attainment plan and supported by attainment of the NAAQS. The PM2.5 precursor analysis relied on the types of analyses discussed in the General Preamble and the remanded 2007 PM2.5 Implementation Rule for demonstrating the contribution of PM2.5 precursors. Based on these analyses, supported by current monitoring data, the ODEQ submittal showed that direct PM2.5 emissions were the primary contributor to the nonattainment problem and that additional emissions reductions from PM2.5 precursors were not needed for demonstrating attainment, not economically or technologically feasible to advance the attainment date by one year, and that existing control measures adequately addressed precursors in light of the minimal impact secondary organic formation has on this specific airshed, as evidenced by the Portland State University SOA study and the EPA's Positive Matrix Factorization (PMF) analysis. Accordingly, the ODEQ selected control strategies to reduce emissions of direct PM2.5 and provided a demonstration that implementation of these strategies would bring the area into attainment by the attainment date.

    The ODEQ's attainment plan for Klamath Falls focused on controlling direct PM2.5 emissions to attain the 2006 24-hr PM2.5 NAAQS. Notably, this was the predominant strategy for controlling PM2.5 in Tacoma, Washington, which is similarly impacted by direct PM2.5 emissions from residential wood smoke and was recently redesignated to attainment as a result of its implementation of residential wood smoke direct PM2.5 control strategies. In support of this control strategy, the ODEQ attainment plan and supporting analyses showed that: (1) The Klamath Falls area attained the standard, (2) control of direct PM2.5 would reduce exceedances of the NAAQS, and (3) emissions from residential wood combustion were the largest contributors to PM2.5 on polluted days. The EPA reviewed the ODEQ's attainment plan and proposes to find that this approach to direct PM2.5 and precursors is appropriate for the Klamath Falls area and is consistent with the requirements of subpart 4.

    1. Quality Assured Monitoring Data Showing Attainment

    As described in Section II. Finding of Attainment, the Klamath Falls area met the 2006 24-hour PM2.5 NAAQS during the 2012-2014 monitoring period using the approach to direct PM2.5 and precursor pollutants adopted by the State in the submitted attainment plan. Given the area's attainment of the 2006 24-hour PM2.5 NAAQS and continued attainment, it follows that no additional controls of direct PM2.5 and precursors beyond those described in the attainment plan are necessary for the area to timely attain the NAAQS. Because EPA's longstanding approach to precursors under subpart 4, as explained in the General Preamble, authorizes a state to establish that it can attain the NAAQS expeditiously by focusing on some but not all precursors, the EPA believes that the ODEQ's submitted attainment plan for the Klamath Falls area is consistent with this aspect of subpart 4.

    As previously discussed in the Attainment Demonstration section III. E., the ODEQ demonstrated the ability to reduce the emissions in Klamath Falls below 35 μg/m3 by December 2014. Control measures considered for demonstrating attainment are discussed in section III. H. RACT/RACM below, and the chosen methods primarily focus on the reduction of direct PM2.5. Table 1 in the Attainment Demonstration section identifies the 2008 baseline design value as 45.1 μg/m3 and then shows how the direct PM2.5 projected air quality benefits from the chosen control strategies will achieve a future design value in 2014 below 35 μg/m3. The RACT/RACM section will also identify that other reductions would be needed to advance the attainment date by one year, but that the remaining control measures were determined to not be economically and/or technologically feasible, or collectively amount to reductions necessary to advance attainment by one year—1.67 μg/m3.

    2. Control of Direct Emissions of PM2.5 Would Reduce Exceedances of the NAAQS

    The ODEQ determined that direct PM2.5 was the primary contributor to winter time exceedances in the Klamath Falls area. As is typical of many areas in the Pacific Northwest region that experience PM2.5 exceedances from anthropogenic sources, these exceedances occur during the winter when temperatures are low and air stagnation conditions are present. These conditions lead to increases in residential wood heating which generate the majority of direct PM2.5 emissions reaching the monitor. This relationship is supported by a SANDWICH (Sulfate, Adjusted Nitrate, Derived Water, Inferred Carbonaceous Material Balance Approach) chemical speciation analysis on days that exceeded the standard and an analysis of primary and secondary organic aerosols conducted by Portland State University (PSU), as discussed above.

    The SANDWICH chemical speciation analysis determined that PM2.5 mass on days exceeding the standard was 80% organic and elemental carbon. The PSU study showed that the contributions from both biogenic and anthropogenic sources of secondary organic aerosols were minor, contributing 1% and 3%, respectively, to the total PM2.5 design value. The bulk of emissions causing exceedances were from directly emitted organic and elemental carbon PM2.5 (See attainment plan attachments 3.3f, 3.3g1, 3.3g2). Based on this weight of evidence, the ODEQ concluded that direct PM2.5 was the primary contributor to exceedances of the 2006 24-hr PM2.5 NAAQS at the regulatory monitor in the Klamath Falls area.

    3. Emissions From Residential Wood Combustion Were the Largest Contributors to PM2.5 on Polluted Days

    The 2008 emissions inventory compiled by the ODEQ calculated a direct PM2.5 emissions rate of 654.7 tpy. Approximately 62% of the total annual emissions were attributable to area sources, primarily of emissions from residential wood combustion. Worst case daily emissions of direct PM2.5 were calculated at 5,420 pounds (lbs) per day with 53% of total emissions attributable to area sources, primarily emissions from residential wood combustion. To assess how these emissions translated into contributions at the monitor, the EPA conducted a PMF analysis as discussed above based on speciated data from the Klamath Falls violating monitor. The results of the PMF analysis showed that emissions of residential wood smoke contributed an estimated 64-72% of total PM2.5 concentrations at the monitor (attachment 3.3h). Residential wood combustion also emits small amounts of SO2, NOX, VOC, and ammonia, 4%, 2%, 11%, and 6%, respectively, of the inventory for these precursors on the “worst case day.” So not only did primary organic and elemental carbon make up over 60% of the PM2.5 mass at the monitor based on the emissions inventory data, PMF analysis, and speciation analyses, but control measures to address residential wood combustion also had the collateral benefit of reducing the precursor inventory.

    General PM2.5

    According to the SANDWICH and PSU analyses secondary PM2.5 conservatively comprised 20% of the PM2.5 in Klamath Falls on days with monitored PM2.5 concentrations above 25 μg/m3. By species, the percentages were 9.6% for nitrate, 4.2% for particle-bound water, 3% for anthropogenic secondary organic aerosols (SOA), 1.6% for sulfate, 1% for biogenic SOA, and 0.7% for ammonium.

    The 2008 baseline emission inventory for NOX was 2,236 tpy annually and 15,483 lbs/day during wintertime PM2.5 episodes. The non-road and on-road mobile source categories contributed 70% to annual and worst case day NOX emissions. The ODEQ's 2014 attainment inventory showed decreases from 2008 of over 30% in NOX on-road and non-road mobile source emissions attributed to federal mobile source control measures.4 The decrease of 3,425 lbs/day from motor vehicle controls was greater than the NOX emissions from all the stationary point sources combined, two of which are already subject to NOX controls. The remaining 9% of NOX emissions were spread among area sources such as natural gas combustion and residential wood combustion.

    4 The General Preamble acknowledges that states can take into account reductions from existing control requirements. 57 FR 13358, April 16, 1992.

    Other secondary species were similarly small components and were generally emitted by multiple source categories. While VOCs were the largest source of precursor emissions on a pound per day basis (2,910.4 tpy annually; 22,754 lbs/day during wintertime episodes), the anthropogenic secondary organic carbon produced from such emissions only contributed 3% of the PM2.5 mass. Emissions of VOCs were split among the stationary point sources (45%), area sources (30%), and mobile sources (25%). Much of the SO2 (109.9 tpy; 1,046 lbs/day) emissions were from fuel oil combustion, with the resulting ammonium sulfate and associated particle-bound water contributing less than 5% of the PM2.5 mass. Ammonium on its own, disassociated from its sulfate and nitrate, was less than 1% of the PM2.5 mass. Based on the weight of evidence provided in the attainment plan, the EPA finds that the ODEQ appropriately considered all precursors in their analysis.

    Industrial PM2.5

    With respect to emissions of PM2.5 precursors from major stationary sources pursuant to section 189(e), the analyses discussed above, which were conducted for all sources generally, are similarly applicable to control of precursor emissions from stationary sources. The ODEQ identified four Title V stationary sources with annual primary PM2.5 emissions exceeding 10 tpy for consideration in its RACT analysis. These sources were identified in the 2008 baseline emissions inventory as Columbia Forest Products (48.9 tpy), Collins Forest Products (48.4 tpy), Klamath Energy Cogeneration (39.9 tpy) and Jeld-Wen (17.3 tpy). Emissions of direct PM2.5 from all other stationary sources in the aggregate amounted to less than 10 tpy. A consideration in the ODEQ's assessment of these facilities was AERMOD modeling which indicated that all industrial point sources combined contributed only 1% of the baseline primary PM2.5 design value, as opposed to residential wood combustion which accounts for roughly two-thirds. These sources are located relatively far away from the area where the greatest PM2.5 concentrations existed, as confirmed by the monitoring saturation study, compared to residential wood combustion which showed a much greater impact on PM2.5 concentrations. Also, industrial stationary source stacks send emissions higher into the atmosphere, and the inversions that trap area and mobile source emissions near the ground also reduce mixing of the elevated stack emissions to the surface.

    In summary, the ODEQ provided data and analyses indicating that direct PM2.5 was the main cause of exceedances of the 2006 24-hr PM2.5 standard in Klamath Falls and that precursor emissions are relatively minor contributors to monitored violations in the Klamath Falls area.

    H. Reasonably Available Control Technology/Reasonably Available Control Measures (RACT/RACM)

    The Klamath Falls attainment plan addressed the RACT/RACM requirement under subpart 1. It did not directly discuss whether the analysis and selection of RACT/RACM also meets the subpart 4 requirements determined to be applicable in NRDC v. EPA because the Court decision occurred after the ODEQ's submittal of the attainment plan, and preliminary monitoring data showed that the area was on a path to come into attainment concurrent with the EPA's deadline for any additional submittals under subpart 4. The EPA in this notice addresses whether the RACT/RACM analysis complies with subpart 4 as well as subpart 1, and evaluates whether application of subpart 4 criteria would affect the control measures identified as part of the ODEQ's control strategy for the Klamath Falls area.

    The general SIP planning requirements for nonattainment areas under subpart 1 include section 172(c)(1), which requires implementation of all RACM (including RACT). The CAA section 172(c) indicates that what constitutes RACM or RACT is related to what is necessary for attainment in a given area, as the provision states that nonattainment plans shall provide for attainment of the NAAQS in the area covered by the attainment plan.

    The EPA based its remanded 2007 PM2.5 Implementation Rule on the general attainment plan requirement for RACM and RACT in section 172(c). The EPA included requirements for the process by which states should determine and establish what control measures would constitute RACM and RACT level controls for appropriate sources in a given nonattainment area. Specifically, in 40 CFR 51.1010(a), the EPA provided that a state should submit a demonstration that it had adopted all RACM and RACT “necessary to demonstrate attainment as expeditiously as practicable and to meet RFP requirements.” The EPA also required states to include a “list of the potential measures considered by the state, and information and analysis sufficient to support the state's judgment that it has adopted all RACM, including RACT.” Moreover, in 40 CFR 51.1010(b), the EPA provided that a state could determine that certain otherwise available control measures are not RACM or RACT for sources in the area if, considered cumulatively, the measures not adopted would not advance the attainment date in the area by at least one year.

    The SIP planning requirements under subpart 4 likewise impose upon states an obligation to develop attainment plans that impose RACM and RACT on sources within a nonattainment area. Section 189(a)(1)(C) requires that states with areas classified as moderate nonattainment areas must have SIP provisions to assure that RACM and RACT level controls are implemented by no later than four years after designation of the area. As with subpart 1, the terms RACM and RACT are not defined within subpart 4. Nor do the provisions of subpart 4 specify how states are to meet the RACM and RACT requirements. However, the EPA's longstanding guidance in the General Preamble provides recommendations for appropriate considerations for determining what control measures constitute RACM and RACT for purposes of meeting the statutory requirements of subpart 4.

    The EPA's existing guidance for RACM and RACT under subpart 4 is comparable to the approach that the EPA set forth in the 2007 PM2.5 Implementation Rule. The EPA's guidance for RACM under subpart 4 in the General Preamble includes: (1) A list of some potential measures for states to consider; (2) a statement of the EPA's expectation that the state will provide a reasoned explanation for a decision not to adopt a particular control measure; (3) recognition that some control measures might be unreasonable because the emissions from the affected sources in the area are de minimis; (4) an emphasis on state evaluation of potential control measures for reasonableness, considering factors such as technological feasibility and the cost of control; and (5) encouragement that states evaluating potential control measures imposed upon municipal or other governmental entities also include consideration of the impacts on such entities, and the possibility of partial implementation when full implementation would be infeasible (e.g., phased implementation of measures such as road paving). 57 FR 13540, April 16, 1992.

    With respect to RACT requirements, the EPA's existing guidance in the General Preamble: (1) Noted that RACT has historically been defined as “the lowest emission limit that a source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility;” (2) noted that RACT generally applies to stationary sources, both stack and fugitive emissions; (3) suggested that major stationary sources be the minimum starting point for a state's RACT analysis; and (4) recommended that states evaluate RACT not only for major stationary sources, but for other source categories as needed for attainment and considering the feasibility of controls. 57 FR 13540 at 13541, April 16, 1992.

    For both RACM and RACT, the EPA notes that an overarching principle is that if a given control measure is not needed to attain the relevant NAAQS in a given area as expeditiously as practicable, then that control measure would not be required as RACM or RACT because it would not be reasonable to impose controls that are not in fact needed for attainment purposes. In both the 2007 PM2.5 Implementation Rule interpreting the subpart 1 RACM and RACT requirements and the General Preamble making recommendations for the subpart 4 RACM and RACT requirements, the focus is upon the process to identify emissions sources, to evaluate potential emissions controls, and to impose those control measures that are reasonable and that are necessary to bring the area into attainment as expeditiously as practicable, but by no later than the applicable attainment date for the area. The only exception is if the economically and technically feasible measures not adopted as RACT/RACM will collectively advance attainment by at least a year, then those measures must be adopted in most cases.

    In its submitted attainment plan for the Klamath Falls area, the ODEQ addressed the RACM and RACT requirements of subpart 1 as interpreted by the EPA in the remanded 2007 PM2.5 Implementation Rule. The EPA proposes to find that the ODEQ RACM and RACT analysis also meets the requirements of subpart 4 as explained in the General Preamble. As described below, the ODEQ evaluated which measures would constitute RACM and RACT in the Klamath Falls area.

    1. First, the ODEQ ascertained that control of direct PM2.5 emissions was necessary for attainment and that available RACM for direct PM2.5 would obviate the need for additional controls for SO2, NOX, NH3, and VOCs, beyond existing federal and state controls, in order to attain the 24-hr PM2.5 NAAQS. As described in the Characterization of Klamath Falls Air Shed section above, the ODEQ identified direct PM2.5 as the primary pollutant causing violations at the regulatory monitor in Klamath Falls, and was able to show that available RACM for direct PM2.5 were sufficient to demonstrate attainment of the 2006 24-hr PM2.5 standard by the subpart 1 attainment date of December 2014.

    The EPA agrees that there are not additional reasonable controls available to reduce emissions of SO2, NH3, VOC, and NOX that collectively would provide for attainment of the standard by at least one year sooner than provided for in the attainment demonstration. The EPA believes that the ODEQ's assessment of precursors sufficiently demonstrates that adoption of additional precursor controls is not reasonable or necessary for continued attainment of the 2006 PM2.5 NAAQS for the subpart 4 requirements.

    2. Second, the ODEQ evaluated the relevant emissions sources in the area. The ODEQ's control strategy focused primarily on RACM from “non-point sources” (i.e., area sources) given that analyses showed direct PM2.5 from these sources was the main contributor to exceedances of the PM2.5 standard. While there was limited ability for controls on PM2.5 precursors to advance attainment, this notice shows that there are existing controls on industrial and on road mobile precursor sources. As such, the attainment plan benefits from strategies that have already been considered and enacted and that applied to “point sources” (i.e., major stationary sources), non-road mobile sources, and on-road mobile sources. Major stationary sources are controlled through the ODEQ's permitting programs and the mobile sources have been addressed via national and state measures expected to reduce mobile source emissions through fuel economy standards and vehicle emissions standards including Oregon Low Emission Vehicle regulations (LEV II/Tier 2 emissions standards). Table 2 provides a chart of certain RACT/RACM implemented for the Klamath Falls area. The table provides the RACT/RACM in two sections: Current Strategies and New Strategies. The current strategies are those that were initiated between 2007-12 and the future strategies are those that were initiated in 2012. All measures are being implemented currently. A full discussion of the RACT/RACM evaluated by the ODEQ is available in the Klamath Falls Attainment Plan.

    Table 2—RACT/RACM in Klamath Falls Emission reduction measure Sector Pollutant
  • addressed
  • Current Strategies (2007-present), currently implemented but not accounted for in the 2008 base year EI Residential Wood Combustion: Klamath Woodstove Curtailment Program—revised with lower thresholds & increased enforcement (Clean Air Ordinance) Area PM2.5 Woodstove Change-out Programs Area PM2.5 Heat Smart program removal of uncertified woodstoves upon sale of home Area PM2.5 Open Burning: Shortened Open Burning Window (Klamath Clean Air Ordinance) Area PM2.5 Fuel and Transportation Related: Low Emission Vehicle Program Mobile SOX, NOX Road Paving Area PM2.5 Diesel Retrofits Mobile PM2.5 Fuel Economy Mobile SOX Industrial Point Sources: Maximum Achievable Control Technology (MACT)—hardboard and particleboard facilities Point PM2.5, SOX New Strategies (2012-present) Residential Wood Combustion: Fireplace Standard Area PM2.5 Public Awareness Area PM2.5 Industrial Point Sources: Opacity, Operation and Maintenance Plan Requirements Point PM2.5 Offset Requirements Point PM2.5 Road Dust: Highway Road Sanding practices Area PM2.5

    3. Third, the ODEQ has a demonstrated history of implementation success with respect to particulate matter control strategies. Given that the Klamath Falls area devised control measures to address nonattainment for PM10 in the past, the area was already implementing a number of relevant control strategies with demonstrated efficacy. For purposes of attaining the 2006 24-hour PM2.5 NAAQS, the ODEQ and Klamath County strengthened some of these existing strategies, which were previously considered RACT/RACM for purposes of attaining the PM10 NAAQS, to achieve PM2.5 reductions to meet the stricter PM2.5 standard (Klamath Falls PM10 Attainment Plan—62 FR 18047, April 14, 1997, PM10 Maintenance Plan—68 FR 60036, October 21, 2003).

    In addition to considering the range of implemented strategies that had effectively controlled emissions to attain the PM10 NAAQS, the ODEQ and the Klamath Falls community formed the Klamath Air Quality Advisory Committee (KAQAC) to evaluate and develop additional RACM/RACT at the county level to approve into the Klamath Falls PM2.5 attainment plan. The KAQAC and the ODEQ contributed to the formal RACT/RACM analysis of current and future control strategies and provided recommendations to the county commissioners for approval.

    The RACT/RACM adopted and updated by the ODEQ for the Klamath Falls area were projected to reduce the 24-hour PM2.5 design value by approximately 11.7 µg/m3 by 2014 (see table 3 below). Accordingly, the plan demonstrated attainment by projecting that the area's design value would be reduced from the 2008 base year design value of 45µg/m3 to below 35µg/m3 in 2014. Recent monitoring data for 2012-14 indicate that the plan was effective, reducing the design value to 34 µg/m3.

    Table 3—RACT/RACM Projected Air Quality Benefit for the Klamath Falls Area RACT/RACM Projected
  • air quality
  • benefit
  • (µg/m3)
  • Primary measures: Klamath Clean Air Ordinance (updated) 9.6 • Woodstove curtailment—lower thresholds and increased enforcement • Shorter open burning window Woodstove Change-out Programs 1.0 Heat Smart—woodstove change-out upon sale of home 0.3 Maximum Achievable Control Technology (MACT) particleboard and hardboard 0.1 subtotal 1 11.0 Additional measures: Public Awareness 0.6 New fireplace standards 0.1 Transportation and Fuel Related Emissions Minimal. • Diesel Retrofits • Low Emission Vehicle Program • Fuel Economy Road Paving Minimal. subtotal 2 0.7 Total 11.7

    As seen in Table 3, the most important control strategies address residential wood combustion because the emissions inventory and source-receptor analyses identified residential wood combustion as the most significant contributor to PM2.5 at the monitor on days that exceed the standard. The residential wood combustion strategies include an ongoing woodstove change-out program to replace woodstoves with cleaner, more efficient devices, and an updated Klamath Clean Air Ordinance that includes a strengthened woodstove curtailment program to reduce woodstove emissions on days when exceedances of the standard are most likely to occur.

    The woodstove change-out program in Klamath Falls has proven effective for meeting the PM10 standard and again was selected as a primary RACT/RACM strategy for the PM2.5 attainment plan. The program, currently implemented by the City of Klamath Falls, provides financial incentives for homeowners to replace older uncertified woodstoves with newer, cleaner certified woodstoves. Between 2008 and 2011, the change-out program replaced 584 uncertified woodstoves in the area. The removal and destruction of the old woodstoves assures that the emissions reductions are permanent, and the change-outs are enforceable because there is a statewide building code that prohibits the installation of any uncertified woodstove in the future. The 584 uncertified stoves that have been changed out were estimated in the attainment demonstration to collectively provide emission reductions that would lead to an air quality improvement of 1.0 µg/m3. The ODEQ intends to continue its financial support of this program in the future for purposes of meeting and maintaining the standard, but it has not taken any credit in the attainment demonstration for future change-outs.

    Previous wood burning curtailment programs were important in helping this area attain the 1987 PM10 standard and t