On March 29, 2005, Gulfstream Aerospace Corporation (hereafter referred to as “Gulfstream”) applied for an FAA type certificate for its new Gulfstream Model GVI passenger airplane. Gulfstream later applied for, and was granted, an extension of time for the type certificate, which changed the effective application date to September 28, 2006. The Gulfstream Model GVI airplane will be an all-new, two-engine jet transport airplane with an executive cabin interior. The maximum takeoff weight will be 99,600 pounds, with a maximum passenger count of 19 passengers.

Under provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, Gulfstream must show that the Gulfstream Model GVI airplane (hereafter referred to as “the GVI”) meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-119, 25-122, and 25-124. If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the GVI because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design features, the special conditions would also apply to the other model under provisions of § 21.101.

In addition to complying with the applicable airworthiness regulations and special conditions, the GVI must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. The FAA must also issue a finding of regulatory adequacy pursuant to section 611 of Public Law 92-574, the “Noise Control Act of 1972.”

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).

The GVI will have high bypass engines. Engines of this size, configuration, and failure modes were not envisioned when § 25.361, which addresses loads imposed by engine seizure, was adopted in 1965. Worst case engine seizure events have become increasingly more severe with increasing engine size because of the higher inertia of the rotating components. The GVI engines are sufficiently different and novel to justify issuance of a special condition to establish appropriate design standards.

Section 25.361(b)(1) requires that for turbine engine installations, the engine mounts and the supporting structures must be designed to withstand a “limit engine torque load imposed by sudden engine stoppage due to malfunction or structural failure.” Limit loads are expected to occur about once in the lifetime of any airplane. Section 25.305 requires that supporting structures be able to support limit loads without detrimental permanent deformation, meaning that supporting structures should remain serviceable after a limit load event.

Since adoption of § 25.361(b)(1), the size, configuration, and failure modes of jet engines have changed considerably. Current engines are much larger and are designed with large bypass fans. In the event of a structural failure, these engines are capable of producing much higher transient loads on the engine mounts and supporting structures.

As a result, modern high bypass engines are subject to certain rare-but-severe engine seizure events. Service history shows that such events occur far less frequently than limit load events. Although it is important for the airplane to be able to support such rare loads safely without failure, it is unrealistic to expect that no permanent deformation will occur.

Given this situation, the Aviation Rulemaking Advisory Committee (ARAC) has proposed a design standard for today's large engines. For the commonly-occurring deceleration events, the proposed standard would require engine mounts and structures to support maximum torques without detrimental permanent deformation. For the rare-but-severe engine seizure events such as loss of any fan, compressor, orturbine blade, the proposed standard would require engine mounts and structures to support maximum torques without failure, but allows for some deformation in the structure.

The FAA concludes that modern large engines, including those on the GVI, are novel and unusual compared to those envisioned when § 25.361(b)(1) was adopted and thus warrant special conditions. The special conditions contain design criteria recommended by ARAC. The special conditions also clarify the design criteria that apply to auxiliary power units.

Notice of proposed special conditions No. 25-11-11-SC for Gulfstream GVI airplanes was published in theFederal Registeron May 5, 2011 (76 FR 25648). One supportive comment was received and the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the GVI. Should Gulfstream apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design features, these special conditions would apply to that model as well.

This action affects only certain novel or unusual design features of the GVI. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Gulfstream GVI airplanes.

The following special conditions are in lieu of § 25.361(b):

1. For turbine engine installations, the engine mounts, pylons and adjacent supporting airframe structure must be designed to withstand 1g level flight loads acting simultaneously with the maximum limit torque loads imposed by each of the following:

(a) Sudden engine deceleration due to a malfunction which could result in a temporary loss of power or thrust; and

(b) The maximum acceleration of the engine.

2. For auxiliary power unit installations, the power unit mounts and adjacent supporting airframe structure must be designed to withstand 1g level flight loads acting simultaneously with the maximum limit torque loads imposed by each of the following:

(a) Sudden auxiliary power unit deceleration due to malfunction or structural failure; and

(b) The maximum acceleration of the power unit.

3. For engine supporting structure, an ultimate loading condition must be considered that combines 1g flight loads with the transient dynamic loads resulting from:

(a) The loss of any fan, compressor, or turbine blade; and

(b) Separately, where applicable to a specific engine design, any other engine structural failure that results in higher loads.

4. The ultimate loads developed from the conditions specified in paragraphs 3(a) and 3(b) are to be multiplied by a factor of 1.0 when applied to engine mounts and pylons and multiplied by a factor of 1.25 when applied to adjacent supporting airframe structure.

5. Any permanent deformation that results from the conditions specified in paragraph 3 must not prevent continued safe flight and landing.

On November 4, 2005, The Boeing Company, P.O. Box 3707, Seattle, WA 98124, applied for an amendment to Type Certificate Number A20WE to include the new Model 747-8 passenger airplane. Boeing later applied for, and was granted, an extension of time for the amended type certificate, which changed the effective application date to December 31, 2006. The Model 747-8 is a derivative of the 747-400. The Model 747-8 is a four-engine jet transport airplane that will have a maximum takeoff weight of 975,000 pounds and new General Electric GEnx-2B67 engines. The Model 747-8 will have two flight crew and the capacity to carry 605 passengers.

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 747-8 meets the applicable provisions of part 25, as amended by Amendments 25-1 through 25-120, plus amendment 25-127 for § 25.795(a), except for earlier amendments as agreed upon by the FAA. These regulations will be incorporated into Type Certificate No. A20WE after type certification approval of the 747-8.

In addition, the certification basis includes other regulations, special conditions and exemptions that are not relevant to these special conditions. Type Certificate No. A20WE will be updated to include a complete description of the certification basis for these airplanes. If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the 747-8 because of a novel or unusual design feature, specialconditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the 747-8 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

Special conditions, as defined in § 11.19, are issued under § 11.38, and become part of the type certification basis under § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model or series that incorporates the same or similar novel or unusual design feature, or should any other model or series already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model or series under § 21.101.

Compliance with these special conditions does not relieve the applicant from the existing airplane certification basis requirements. One particular area of concern is that installing an overhead flight attendant rest (OFAR) compartment creates a smaller compartment volume within the overhead area of the airplane. The applicant must comply with the requirements of §§ 25.365(e), (f), and (g), for the OFAR compartment, as well as any other airplane compartments whose decompression characteristics are affected by the installation of an OFAR compartment. Compliance with the environmental regulations (§§ 25.831, 25.832, and 25.841) must be demonstrated for all phases of flight when occupants are present.

While the installation of an OFAR compartment is not a new concept for large transport category airplanes, each compartment design has unique features by virtue of its design, location, and use on the airplane. Crew rest compartments have been installed and certified in the main passenger cabin area of Model 777-200 and -300 series airplanes and the overhead area of the passenger compartment of Model 777-200 airplanes. Other crew rest compartments have been installed below the passenger cabin area adjacent to the cargo compartment. Similar overhead crew rest compartments have also been installed on Model 747 series airplanes. The modification is evaluated with respect to the interior and assessed in accordance with the certification basis of the airplane. However, part 25 does not provide all of the requirements for crew rest compartments within the overhead area of the passenger compartment. Further, these special conditions do not negate the need to address other applicable part 25 regulations.

Due to the novel or unusual features associated with the installation of this OFAR compartment, special conditions are considered necessary to provide a level of safety equal to that established by the airworthiness regulations incorporated by reference in the type certificate.

These special conditions outline requirements for overhead crew rest compartment design approvals, including the OFAR compartment, (i.e., type design changes and supplemental type certificates) administered by the FAA's Aircraft Certification Service.

Procedures must be developed to assure that a crewmember entering the OFAR compartment through the vestibule to fight a fire will examine the vestibule and the lavatory areas for the source of the fire prior to entering the remaining areas of the OFAR compartment. These procedures are intended to assure that the source of the fire is not between the crewmember and the primary exit. In the event a fire source is not immediately self-evident to the firefighter, the firefighter should check for potential fire sources at areas closest to the primary exit first, then proceed to check areas in such a manner that the fire source, when found, would not be between the firefighter and the primary exit. Procedures describing methods to search the overhead crew rests for fire source(s) must be transmitted to the operator for incorporation into its training programs and appropriate operational manuals.

In general, the requirements listed in these special conditions are similar to those previously approved in earlier certification programs, such as the Model 777-200 series airplanes and Model 747 overhead crew rest compartments. These special conditions establish seating, communication, lighting, personal safety, and evacuation requirements for the OFAR compartment. In addition, passenger information signs, supplemental oxygen, and a seat or berth for each occupant of the OFAR compartment are required. These items are necessary because of turbulence and/or decompression. When applicable, the requirements parallel the existing requirements for a lower deck service compartment and provide an equivalent level of safety to that provided for main deck occupants.

On Model 777 series airplanes, crew rest compartments have been installed and certified in the main passenger cabin area, above the main passenger area, and below the passenger cabin area adjacent to the cargo compartment. Also, overhead crew rest compartments have been installed on Model 747 series airplanes.

The FAA issued special conditions that contain the additional safety standards that must be met for the OFAR compartments on Boeing Model 747 and 777 series airplanes. FAA Special Condition 25-ANM-16 was issued in 1987 to provide adequate safety standards for the 747-300 and 747-400 Door 5 Overhead Crew Rests, and amended in 1997 (25-ANM-16A) to address design changes in the 747-400 Door 5 Overhead Crew Rest. For Boeing Model 777 series airplanes, the FAA issued Special Conditions No. 25-230-SC, dated April 9, 2003, for overhead crew rest compartments allowed to be occupied during flight and Special Conditions No. 25-260-SC, dated April 14, 2004, for overhead flight crew rest (OFCR) compartments allowed to be occupied during taxi, take-off, and landing, as well as during flight.

This special condition requires the seats and berths to be certified to the maximum flight loads. Due to the location and configuration of the OFAR compartment, occupancy during taxi, take-off, and landing is prohibited, and occupancy is limited to crewmembers during flight. Occupancy would be limited to 12 in an OFAR compartment, or the combined total of approved seats and berths in the OFAR, whichever is less. This special condition has the requirements for:

○ Door access and locking,

○ Ashtray installation,

○ Placards to prohibit passenger access,

○ Access by crewmembers not trained in evacuation procedures,

○ Smoking, and

○ Hazardous quantities of flammable fluids, explosives, or other dangerous cargo.

The phrase “hazardous quantities” as used in this special condition permits trained crewmembers to continue to carry baggage containing minute quantities of flammable fluids (e.g.,finger nail polish and aerosol hairspray) that would pose no threat to the airplane or its occupants. This wording is consistent with the existing wording of §§ 25.831(d), 25.855(h)(2),25.857(b)(2), 25.857(c)(3), and 25.1353(c)(3).

The purpose of this special condition is to prevent occupants from being trapped in the OFAR compartment if there is an emergency. The special condition requires at least two emergency evacuation routes that could be used by each occupant of the OFAR compartment to rapidly evacuate to the main cabin. These two routes must be sufficiently separated to minimize the possibility of an event rendering both routes inoperative. The main entry route meeting the appropriate requirements may be utilized as one of the emergency evacuation routes, or, as an alternative, two other emergency routes must be provided. The intent of Special Condition No. 2(b) is to ensure that one of the two routes would be clear of moving occupants under most foreseeable circumstances.

Special Condition No. 2(b) identifies the three issues that should be considered for egress routes. First, occupied passenger seats are not considered an impediment to the use of an egress route (for example, the egress route drops into one row of seats by means of a hatch) provided that the seated occupants do not inhibit the opening of the egress route (for example, a hatch).

Second, an egress route may utilize areas where normal movement of passengers occurs if it is demonstrated that the passengers would not impede egress to the main deck. If the egress means (a hatch in this design) opens into a main aisle, cross aisle, or galley complex to an extent that it contacts a standing ninety-fifth percentile male, then the contact should only momentarily interrupt the opening of the egress hatch. The interruption to the egress means can be considered momentary if the egress means would continue to open normally once the person has moved out of the way.

Third, the escape hatch should be provided with a means to prevent it from being inadvertently closed by a passenger on the main deck. This will ensure main deck passengers can not prevent the overhead crew rest occupants from using the escape route. The crew should be able to stow the escape hatch prior to landing.

Training requirements for the OFAR compartment occupants are included in this special condition.

To clarify how compliance can be shown to Special Condition No. 2(a) new qualitative and quantitative criteria have been added to this special condition since the issuance of Special Conditions No. 25-192-SC.

This special condition requires each evacuation route to be designed for and have procedures established for moving an incapacitated person from the OFAR compartment to the main deck. Additional assistants to evacuate an incapacitated person may ascend up to one half the elevation change from the main deck to the OFAR compartment, or to the first landing, whichever is lower. Where the escape route is over seats, this special condition allows for five passenger seats to be emptied when demonstrating evacuation of an incapacitated person.

This special condition requires exit signs; placards for evacuation routes; and illumination for signs, placards, and door handles. This special condition allows the use of exit signs with a reduced background area. The material surrounding the sign must be light in color to more closely match and enhance the illuminated background of the sign that has been reduced in area (letter size stays the same). Signs with a reduced background area have been allowed under previous equivalent level of safety findings for small transport executive jets.

This special condition requires an emergency lighting system to prevent the occupants from being isolated in a dark area due to loss of the normal OFAR compartment lighting. The emergency lighting must be activated under the same conditions as the main deck emergency lighting system.

This special condition requires a two-way voice communication and public address speaker(s) to alert the occupants of an in-flight emergency. Also required is a system to alert the OFAR compartment occupants of a decompression event and to don oxygen masks.

This special condition requires a means to inform occupants of the OFAR compartment of an emergency. Also, after certain failures, power must be maintained to the emergency alarm system for a specific period of time.

This special condition requires a means that is readily detectable by seated or standing OFAR compartment occupants to indicate when seat belts should be fastened. The requirement for visibility of the sign by standing occupants may be met by a general area sign that is visible to occupants standing in the main floor area or corridor of the OFAR compartment. It would not be essential that the sign be visible from every possible location in the OFAR compartment. However, the sign should not be remotely located or located where it may be easily obscured.

This special condition requires the OFAR compartment, which is remotely located from the passenger cabin, to be equipped with the following tools for firefighting: a hand-held fire extinguisher, protective breathing equipment (PBE), and a flashlight.

This requirement has been modified from previously issued Special Conditions No. 25-192-SC to clarify how it should be interpreted relative to the requirements of § 25.1439(a). Amendment 25-38 modified the requirements of § 25.1439(a) by adding, “In addition, protective breathing equipment must be installed in each isolated separate compartment in the airplane, including upper and lower lobe galleys, in which crewmember occupancy is permitted during flight for the maximum number of crewmembers expected to be in the area during any operation.” The requirements of § 25.1439(a) apply to the OFAR compartment, which is an isolated separate compartment. However, the PBE requirements for isolated separate compartments of § 25.1439(a) are not appropriate because the OFAR compartment is novel and unusual in terms of the number of occupants. In 1976 when Amendment 25-38 was adopted, underfloor galleys were the only isolated compartments that had been certificated with a maximum of two crewmembers expected to occupy those galleys. Special Condition No. 9 addresses OFAR compartments that can accommodate up to 12 crewmembers. This large number of occupants in an isolated compartment was not envisioned at the time Amendment 25-38 was adopted. In the event of a fire, an occupant's first action should be to leave the confined space, unless the occupant(s) is fighting the fire. It is not appropriate for all OFAR compartment occupants to don PBE. Taking the time to don the PBE would prolong the time for an occupant's emergency evacuation and possibly interfere with efforts to extinguish the fire.

This special condition requires a smoke detection system and appropriate warnings since the OFAR compartment is remotely located from the main passenger cabin and will not always be occupied. The smoke detection system must be capable of detecting a fire throughout the OFAR including occupiable areas of the compartment created by the installation of a curtain or door.

This special condition requires the OFAR compartment to be designed so fires within the compartment can be controlled without having to enter the compartment; or, the design of the access provisions must allow crew equipped for firefighting to have unrestricted access to the compartment. The time for a crewmember on the main deck to react to the fire alarm, don firefighting equipment, and gain access must not exceed the time for the OFAR compartment to become smoke filled, making it difficult to locate the fire source.

This special condition requirement concerning fires within the compartment was developed for, and applied to, lower lobe crew rest compartments in Model 777-200 and -300 series airplanes. It was not applied to the overhead crew rest compartment in earlier certification programs such as the Model 747 airplanes. The Model 747 special conditions were issued before the new part 25 flammability requirements were developed. This requirement originated from a concern that a fire in an unoccupied overhead crew rest compartment could spread into the passenger compartment, or affect other vital systems, before it could be extinguished. This special condition would require either the installation of a manually activated fire containment system that is accessible from outside the OFAR compartment, or a demonstration that the crew could satisfactorily perform the function of extinguishing a fire under the prescribed conditions. A manually activated built-in fire extinguishing system would be required only if a crewmember could not successfully locate and extinguish the fire during a demonstration where the crewmember is responding to the alarm.

The OFAR compartment smoke or fire detection and fire suppression systems (including airflow management features which prevent hazardous quantities of smoke or fire extinguishing agent from entering any other compartment occupied by crewmembers or passengers) is considered complex in terms of paragraph 6d of Advisory Circular (AC) 25.1309-1A,System Design and Analysis. In addition, the FAA considers failure of the OFAR compartment fire protection system (i.e., smoke or fire detection and fire suppression systems) in conjunction with an OFAR fire to be a catastrophic event. Based on the “Depth of Analysis Flowchart” shown in Figure 2 of AC 25.1309-1A, the depth of analysis should include both qualitative and quantitative assessments (reference paragraphs 8d, 9, and 10 of AC 25.1309-1A). In addition, it should be noted that hazardous quantities of flammable fluids, explosives, or other dangerous cargo are prohibited from being carried in the OFAR compartment, a prohibition addressed in Special Condition No. 1(a)(5).

The requirements to enable crewmember(s) to quickly enter the OFAR compartment and locate a fire source inherently places limits on the amount of baggage that may be carried and the size of the OFAR compartment. The OFAR compartment is limited to stowing crew personal luggage and is not intended for stowing cargo or passenger baggage. The design of such a system to include cargo or passenger baggage would require additional requirements to ensure safe operation.

During the one-minute smoke detection time, penetration of a small quantity of smoke from the OFAR compartment into an occupied area is acceptable for this airplane configuration. The FAA finds this acceptable based on the limitations placed in this and other associated special conditions. The FAA position is predicated on the fact that these special conditions place sufficient restrictions on the quantity and type of material allowed in crew carry-on bags that the threat from a fire in this remote area would be equivalent to that experienced in the main cabin.

This special condition requires that the oxygen equipment and a supplemental oxygen deployment warning for the OFAR compartment be equivalent to that provided for main deck passengers. Procedures must be established for OFAR compartment occupants to follow in the event of decompression.

This special condition has the requirements for a divided OFAR compartment to address supplemental oxygen equipment and deployment means, signs, placards, curtains, doors, emergency illumination, alarms, seat belt fasten signals, and evacuation routes.

The wording in Special Condition No. 14(a) was modified from previously issued special conditions to clarify that oxygen masks are not required in common areas where seats or berths are not installed. A visual indicator to don oxygen masks is required in these areas. The visual indicator is in addition to the aural alert for donning oxygen masks.

For lavatories or other small areas within an OFAR compartment, this special condition eliminates the requirements for flight deck communication as required by Special Condition No. 6, and emergency fire fighting and protective equipment as required by Special Condition No. 9.

This special condition requires a fitted waste disposal receptacle to be equipped with an automatic fire extinguisher.

This special condition requires the materials in the OFAR compartment to meet the flammability requirements of § 25.853(a), and the mattresses and seat cushions to meet the fire blocking requirements of § 25.853(c).

To clarify the applicability, this special condition reiterates the existing requirements for the main deck lavatory. OFAR compartment lavatories are required to comply with the existing rules on lavatories in the absence of other specific requirements. In addition, any lavatory located in the OFAR compartment must also meet the requirements of Special Condition No. 10 for smoke detection due to its placement in this remote area.

This special condition requires establishing fire protection procedures for the OFAR compartment based on the size of the compartment (compartment interior volume). This special condition has been revised from previously issued special conditions for other model airplanes because of the introduction of larger stowage compartments into the OFAR compartment. The fire protection requirements for stowage compartments in the OFAR compartment are more stringent than those for stowage in the main passenger cabin because the OFAR compartment is a remote area that canremain unoccupied for long periods of time in contrast to the main cabin that is under continuous monitoring by the cabin crew and passengers. For stowage compartments less than 25 ft3the safety objective of these requirements is to contain the fire. FAA research indicates that properly constructed compartments meeting the material requirements will prevent burn through. For stowage compartments greater than 25 ft3but less than 200 ft3the safety objective is to detect and contain the fire for sufficient time to allow it to be extinguished by the crew. The requirements for these sizes of compartments are comparable to the requirements for Class B cargo compartments. The fire protection requirements are intended to provide a level of safety for the OFAR compartment that is equivalent to the level of safety established by the existing regulations for the main cabin.

These special conditions along with the original type certification basis provide the regulatory requirements necessary for certification of this modification. Other special conditions may be developed, as needed, based on further FAA review and discussions with the applicant, manufacturer, and civil aviation authorities.

The addition of galley equipment or a kitchenette incorporating a heat source (e.g., cook tops, microwaves, or coffee pots), other than a conventional lavatory or kitchenette hot water heater, within the OFAR compartment, may require additional special conditions. A hot water heater is acceptable and will not require issuing additional special conditions.

The OFAR compartment on the 747-8 series airplanes is located above the main passenger cabin adjacent to Door 5 and will be accessed from the main deck by stairs. The OFAR compartment will include a maximum of 10 berths and a bench style seat for a maximum occupancy of 12. An emergency hatch that opens directly into the main passenger cabin area will be provided. A smoke detection system, an oxygen system with audio warning, emergency backup lighting, information signs, and occupant amenities will also be provided. Additionally, the OFAR compartment will only be occupied by trained crew members in flight, not during taxi, take-off, or landing.

Notice of proposed special conditions No. 25-11-13-SC for Boeing Model 747-8 airplanes was published in theFederal Registeron May 10, 2011 (76 FR 26949). No comments were received and the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to Boeing Model 747-8 series airplanes. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design features, the special conditions would apply to that model as well under the provisions of § 21.101.

This action affects only certain novel or unusual design features of Boeing Model 747-8 airplanes. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 747-8 airplanes.

1. Occupancy of the overhead flight attendant rest (OFAR) compartment is limited to the total number of bunks and seats installed in that compartment. There must be an approved seat or berth able to withstand the maximum flight loads when occupied for each occupant permitted in the OFAR compartment. The maximum occupancy is 12.

(a) Appropriate placards must be located inside and outside each entrance to the OFAR compartment to indicate:

(1) The maximum number of occupants allowed.

(2) Occupancy is restricted to crewmembers that are trained in the evacuation procedures for the overhead crew rest compartment.

(3) Occupancy is prohibited during taxi, take-off and landing.

(4) Smoking is prohibited in the OFAR compartment.

(5) Stowage in the OFAR compartment area is limited to crew personal luggage. The stowage of cargo or passenger baggage is not allowed.

(b) At least one ashtray must be located on both the inside and the outside of any entrance to the OFAR compartment.

(c) Passengers must be prevented from entering the OFAR compartment in the event of an emergency or when no flight attendant is present.

(d) Any door installed between the OFAR compartment and passenger cabin must be capable of being quickly opened from inside the compartment, even when crowding occurs at each side of the door.

(e) For all doors installed in the OFAR compartment, a means must be in place to preclude anyone from being trapped inside the OFAR compartment. If a locking mechanism is installed, it must be capable of being unlocked from the outside without the aid of special tools. The lock must not prevent opening from the inside of the OFAR compartment at any time.

2. At least two emergency evacuation routes must be available which could be used by each occupant of the OFAR compartment to rapidly evacuate to the main cabin and be able to be closed from the main passenger cabin after evacuation. In addition—

(a) The routes must be located with sufficient separation within the OFAR compartment, and between the evacuation routes, to minimize the possibility of an event rendering both routes inoperative.

Compliance with the requirements of Special Condition No. 2(a) may be shown by inspection or analysis. Regardless of which method is used, the maximum acceptable distance between exit openings is 60 feet.

Inspection may be used to show compliance with Special Condition No. 2(a). An inspection finding that an OFAR compartment has evacuation routes located such that each occupant of the seats and berths has an unobstructed route to at least one of the evacuation routes regardless of the location of a fire would be reason for a finding of compliance. A fire within a berth that only blocks the occupant of that berth from exiting the berth need not be considered. Therefore, exits which are located at opposite ends (i.e., adjacent to opposite end walls) of the OFAR would require no further review or analysis with regard to exit separation.

Analysis must show that the OFAR compartment configuration and interior features allow all occupants of the OFAR to escape the compartment in the event of a hazard inside or outside of the compartment. Elements to consider in this evaluation are:

(1) Fire inside or outside the OFAR compartment, considered separately,and the design elements used to reduce the available fuel for the fire.

(2) Design elements to reduce the fire ignition sources in the OFAR compartment.

(3) Distribution and quantity of emergency equipment within the OFAR compartment.

(4) Structural failure or deformation of components that could block access to the available evacuation routes (e.g., seats, folding berths, and contents of stowage compartments).

(5) An incapacitated person blocking the evacuation routes.

(6) Any other foreseeable hazard not identified above that could cause the evacuation routes to be compromised.

Analysis must consider design features affecting access to the evacuation routes. The design features that should be considered include, but are not limited to,

○ Seat back break over,

○ The elimination of rigid structure that reduces access from one part of the compartment to another,

○ The elimination of items that are known to cause hazards,

○ The availability of emergency equipment to address fire hazards,

○ The availability of communications equipment,

○ Supplemental restraint devices to retain items of mass that could hinder evacuation if broken loose, and

○ Load path isolation between components that contain the evacuation routes.

Analysis of the fire threats should be used in determining the placement of required fire extinguishers and protective breathing equipment (PBE). This analysis should take into consideration the possibility of fire in any location in the OFAR compartment. The location and quantity of PBE and fire extinguishers should allow occupants located in any approved seats or berths access to the equipment necessary to fight a fire in the OFAR compartment.

The intent of this special condition is to provide sufficient exit separation. The exit separation analysis described above should not be used to approve exits which have less physical separation (measured between the centroid of each exit opening) than the minimums prescribed below, unless compensating features are identified and submitted to the FAA for evaluation and approval.

For OFAR compartments with one exit located near the forward or aft end of an OFAR compartment (as measured by having the centroid of the exit opening within 20 percent of the total OFAR compartment length from the forward or aft end of the compartment) the exit separation should not be less than 50 percent of the total OFAR compartment length.

For OFAR compartments with neither required exit located near the forward or aft end of the OFAR compartment (as measured by having the centroid of the exit opening within 20 percent of the total OFAR compartment length from the forward or aft end of the compartment) the exit separation should not be less than 30 percent of the total OFAR compartment length.

(b) The routes must be designed to minimize the possibility of blockage, which might result from fire, mechanical or structural failure, or persons standing below or against the escape route. One of the two evacuation routes should not be located where, during times when occupancy is allowed, normal movement by passengers occurs (i.e.,main aisle, cross aisle or galley complex) that would impede egress from the OFAR compartment. If an evacuation route is in an area where normal movement of passengers occurs, it must be demonstrated that passengers would not impede egress to the main deck. If there is low headroom at or near the evacuation route, provisions must be made to prevent or to protect occupants of the OFAR compartment from head injury. The use of evacuation routes must not depend on any powered device. If the evacuation path is over an area where there are passenger seats, a maximum of five passengers may be temporarily displaced from their seats when evacuating an incapacitated person(s). If the evacuation procedure involves the evacuee stepping on seats, the seats must not be damaged to the extent that they would not be acceptable for occupancy during an emergency landing.

(c) Emergency evacuation procedures, including procedures for emergency evacuation of an incapacitated occupant from the OFAR compartment, must be established. All of these procedures must be transmitted to the operator for incorporation into its training programs and appropriate operational manuals.

(d) A limitation must be included in the airplane flight manual or other suitable means requiring that crewmembers be trained in the use of evacuation routes.

3. There must be a means for evacuating an incapacitated person (representative of a ninety-fifth percentile male) from the OFAR compartment to the passenger cabin floor. The evacuation must be demonstrated for all evacuation routes. A crewmember (a total of one assistant within the OFAR compartment) may provide assistance in the evacuation. Additional assistance may be provided by up to three persons in the main passenger compartment. These additional assistants must be standing on the floor while providing assistance. For evacuation routes with stairways, the additional assistants may ascend up to one half the elevation change from the main deck to the OFAR compartment, or to the first landing, whichever is lower.

4. The following signs and placards must be provided in the OFAR compartment:

(a) At least one exit sign, located near each exit, meeting the emergency lighting requirements of § 25.812(b)(1)(i); however, a sign with a reduced background area of no less than 5.3 square inches (excluding the letters) may be used, provided it is installed so the material surrounding the exit sign is light in color (e.g., white, cream, light beige). If the material surrounding the exit sign is not light in color, a sign with a minimum of a one-inch wide background border around the letters is acceptable.

(b) An appropriate placard located conspicuously on or near each exit defining the location and operating instructions for each evacuation route.

(c) Placards must be readable from a distance of 30 inches under emergency lighting conditions.

(d) The evacuation path operating instruction placards required by Special Condition 4(b) of these special conditions must be illuminated to at least 160 microlamberts under emergency lighting conditions.

5. A means must be available, in the event of failure of the airplane's main power system, or of the normal OFAR compartment lighting system, for emergency illumination to be automatically provided in the OFAR compartment.

(a) This emergency illumination must be independent of the main lighting system.

(b) The sources of general cabin illumination may be common to both the emergency and the main lighting systems if the power supply to the emergency lighting system is independent of the power supply to the main lighting system.

(c) The illumination level must be sufficient for the occupants of the OFAR compartment to locate and move to the main passenger cabin floor by means of each evacuation route.

6. A means must be available for two-way voice communications between crewmembers on the flight deck and occupants of the OFAR compartment.Two-way voice communications must also be available between the occupants of the OFAR compartment and each flight attendant station in the passenger cabin that is required to have a public address system microphone per § 25.1423(g). In addition, the public address system must include provisions to provide only the relevant information to the flight attendants in the OFAR compartment (e.g., fire in flight, airplane depressurization, or preparation of the compartment occupants for landing).

7. A means must be available for manually activating an aural emergency alarm system, audible during normal and emergency conditions, to enable crewmembers on the flight deck and at each pair of required floor level emergency exits to alert occupants of the OFAR compartment of an emergency situation. Use of a public address or crew interphone system is acceptable, provided an adequate means of differentiating between normal and emergency communications is incorporated. The system must be powered in flight for at least 10 minutes after the shutdown or failure of all engines and auxiliary power units.

8. A means, readily detectable by seated or standing occupants of the OFAR compartment, must be in place to indicate when seat belts should be fastened. In the event there are no seats, at least one means must be provided to cover anticipated turbulence (e.g., sufficient handholds). Seat belt type restraints must be provided for berths and must be compatible with the sleeping position during cruise conditions. There must be a placard on each berth requiring seat belts to be fastened when occupied. If compliance with any of the other requirements of these special conditions is predicated on a specific head position, there must be a placard identifying that head position.

9. In lieu of the requirements specified in § 25.1439(a) pertaining to isolated compartments, and to provide a level of safety equivalent to that provided to occupants of an isolated galley, the following equipment must be provided in the OFAR compartment:

(a) At least one approved hand-held fire extinguisher appropriate for the kinds of fires likely to occur.

(b) Two PBE devices suitable for firefighting, or one PBE for each hand-held fire extinguisher, whichever is greater. All PBE devices must be approved to Technical Standard Order (TSO)-C116,Crewmember Portable Protective Breathing Equipment,or equivalent.

(c) One flashlight.

10. A smoke or fire detection system (or systems) must be provided that monitors each occupiable area within the OFAR compartment, including those areas partitioned by curtains. Flight tests must be conducted to show compliance with this requirement. If a fire occurs, each system (or systems) must provide:

(a) A visual indication to the flightdeck within one minute after the start of a fire.

(b) An aural warning in the OFAR compartment.

(c) A warning in the main passenger cabin. This warning must be readily detectable by a flight attendant, taking into consideration the positioning of flight attendants throughout the main passenger compartment during various phases of flight.

11. A means to fight a fire must be provided. This can be either a built-in extinguishing system or manual, hand-held bottle extinguishing system.

(a) For a built-in extinguishing system:

(1) The system must have adequate capacity to suppress a fire considering the fire threat, compartment volume, and ventilation rate. The system must have sufficient extinguishing agent to provide an initial knockdown and suppression environment per the minimum performance standards established for the agent being used.

(2) If the capacity of the extinguishing system does not provide effective fire suppression that will last for the duration of flight from the farthest point in route to the nearest suitable landing site expected in service, an additional manual firefighting procedure must be established. For a built-in extinguishing system, the time needed for effective fire suppression must be established and documented in the firefighting procedures of the airplane flight manual. If the duration of time for demonstrated effective fire suppression provided by the built-in extinguishing agent will be exceeded, the firefighting procedures must instruct the crew to:

(i) Enter the OFAR compartment at the time that demonstrated fire suppression effectiveness will be exceeded.

(ii) Check for and extinguish any residual fire.

(iii) Confirm that the fire is out.

(b) For a manual, hand-held bottle extinguishing system (designed as the sole means to fight a fire or to supplement a built-in extinguishing system of limited suppression duration) for the OFAR compartment:

(1) A limitation must be included in the airplane flight manual or other suitable means requiring that crewmembers be trained in the firefighting procedures.

(2) The compartment design must allow crewmembers equipped for firefighting to have unrestricted access to all parts of the compartment.

(3) The time for a crewmember on the main deck to react to the fire alarm, don the firefighting equipment, and gain access to the OFAR compartment must not exceed the time for the compartment to become smoke-filled, making it difficult to locate the fire source.

(4) Approved procedures describing methods for searching the OFAR compartment for fire source(s) must be established. These procedures must be transmitted to the operator for incorporation into its training programs and appropriate operational manuals.

12. A means must be provided to prevent hazardous quantities of smoke or extinguishing agent originating in the OFAR compartment from entering any other compartment occupied by crewmembers or passengers. This means must include the time periods during the evacuation of the OFAR compartment and, if applicable, accessing the OFAR compartment to manually fight a fire. When access to the OFAR compartment is open for emergency evacuation all smoke entering any other compartment occupied by crewmembers or passengers must dissipate within five minutes after access to the OFAR compartment is closed. Hazardous quantities of smoke may not enter any other compartment occupied by crewmembers or passengers during access to manually fight a fire in the OFAR compartment. The amount of smoke entrained by a firefighter exiting the OFAR compartment is not considered hazardous. During the one-minute smoke detection time, penetration of a small quantity of smoke from the OFAR into an occupied area is acceptable. Flight tests must be conducted to show compliance with this requirement.

(a) A provision in the firefighting procedures must ensure that all door(s) and hatch(es) at the OFAR compartment outlets are closed after the compartment is evacuated and during firefighting to minimize smoke and extinguishing agent from entering other occupiable compartments.

(b) If a built-in fire extinguishing system is used in lieu of manual firefighting, the fire extinguishingsystem must be designed so no hazardous quantities of extinguishing agent enter other compartments occupied by passengers or crew. The system must have adequate capacity to suppress any fire occurring in the OFAR compartment, considering the fire threat, compartment volume, and ventilation rate.

13. There must be a supplemental oxygen system for each seat and berth in the OFAR compartment equivalent to that provided for main deck passengers. The system must provide an aural and visual alert to warn occupants of the OFAR compartment to don oxygen masks in the event of decompression. The aural and visual alerts must activate before the cabin pressure altitude exceeds 15,000 feet. The aural warning must sound continuously for a minimum of five minutes or until a reset push button in the OFAR compartment is depressed. Procedures must be established for instructing OFAR compartment occupants what to do in the event of decompression. These procedures must be transmitted to the operator for incorporation into its training programs and appropriate operational manuals.

14. The following requirements apply to OFAR compartments divided into several sections by installing curtains or partitions:

(a) To compensate for sleeping occupants, there must be an aural alert that can be heard in each section of the OFAR compartment that accompanies automatic presentation of supplemental oxygen masks. A visual alert that informs occupants that they must don oxygen masks is required in each section where seats or berths are not installed. Each seat or berth must have at least two supplemental oxygen masks. A means must be in place by which oxygen masks can be manually deployed from the flight deck.

(b) A placard is required adjacent to each curtain that visually divides or separates, for privacy purposes, the OFAR compartment into multiple sections. The placard must require that the curtain(s) remains open when the private section it creates is unoccupied. The vestibule section adjacent to the stairway is not considered a private section and, therefore, does not require a placard.

(c) For each section of the OFAR compartment created by the installation of a curtain, the following requirements must be met with the curtain open or closed:

(1) No smoking placard (Special Condition No. 1).

(2) Emergency illumination (Special Condition No. 5).

(3) Emergency alarm system (Special Condition No. 7).

(4) Seat belt fasten signal or return to seat signal as applicable (Special Condition No. 8).

(5) A smoke or fire detection system (Special Condition No. 10).

(d) OFAR compartments that are visually divided to the extent that evacuation could be affected must have exit signs directing occupants to the primary stairway exit. The exit signs must be provided in each separate section of the OFAR compartment, except for curtained bunks, and must meet the requirements of § 25.812(b)(1)(i).

(e) Sections within an OFAR compartment created by installing a rigid partition with a door physically separating the sections, must meet the following requirements with the door open or closed:

(1) A secondary evacuation route from each section to the main deck, or the applicant must show that any door between the sections precludes anyone from being trapped inside the compartment. Removing an incapacitated occupant from this area must be considered. A secondary evacuation route from a small room designed for only one occupant for a short period of time, such as a changing area or lavatory, is not required. However, removing an incapacitated occupant from a small room, such as a changing area or lavatory, must be considered.

(2) Any door between the sections must be shown to be openable when crowded against, even when crowding occurs at each side of the door.

(3) No more than one door may be located between any seat or berth and the primary stairway exit.

(4) Each section must have exit signs that meet the requirements of § 25.812(b)(1)(i) and direct occupants to the primary stairway exit. An exit sign with reduced background area as described in Special Condition No. 4(a) may be used to meet this requirement.

(f) For each section of the OFAR compartment created by the installation of a partition with a door, the following requirements must be met with the door open or closed:

(1) No smoking placards (Special Condition No. 1).

(2) Emergency illumination (Special Condition No. 5).

(3) Two-way voice communication (Special Condition No. 6).

(4) Emergency alarm system (Special Condition No. 7).

(5) Seat belt fasten signal or return to seat signal as applicable (Special Condition No. 8).

(6) Emergency firefighting and protective equipment (Special Condition No. 9).

(7) Smoke or fire detection system (Special Condition No. 10).

15. Special Conditions 6 (two-way voice communication with the flight deck) and 9 (emergency firefighting and protective equipment) are not applicable to lavatories or other small areas that are not intended to be occupied for extended periods of time.

16. If a waste disposal receptacle is fitted, it must be equipped with an automatic fire extinguisher that meets the performance requirements of § 25.854(b).

17. Materials (including finishes or decorative surfaces applied to the materials) must comply with the flammability requirements of § 25.853(a), as amended by Amendment 25-83. Mattresses and seat cushions must comply with the flammability requirements of § 25.853(c), as amended by Amendment 25-83.

18. The addition of a lavatory within the OFAR compartment would require the lavatory to meet the same requirements as those for a lavatory installed on the main deck except with regard to Special Condition No. 10 for smoke detection.

19. All enclosed stowage compartments within the OFAR compartment that are not limited to stowage of emergency equipment or airplane supplied equipment (e.g., bedding) must meet the design criteria given in the table below. Enclosed stowage compartments greater than 200 ft3in interior volume are not addressed by this special condition. The in-flight accessibility of very large, enclosed, stowage compartments and the subsequent impact on the crewmembers' ability to effectively reach any part of the compartment with the contents of a hand-held fire extinguisher will require additional fire protection considerations similar to those required for inaccessible compartments, such as Class C cargo compartments.

History

On May 18, 2011, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class D airspace for Denton, TX, creating additional controlled airspace at Denton Municipal Airport (76 FR 28684) Docket No. FAA-2010-1327. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class D airspace designations are published in paragraph 5000 of FAA Order 7400.9U dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by creating additional Class D airspace for new standard instrument approach procedures at Denton Municipal Airport, Denton, TX. This action is necessary for the safety and management of IFR operations at the airport. The geographic coordinates of Denton Municipal Airport are also being updated to coincide with the FAA's aeronautical database. With the exception of this change, this action is the same as that published in the NPRM.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantialnumber of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace for Denton Municipal Airport, Denton, TX.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

History

On April 19, 2011, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace for Harrisonville, MO, creating additional controlled airspace at Lawrence Smith Memorial Airport (76 FR 21830) Docket No. FAA-2011-0251. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9U dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace extending upward from 700 feet above the surface for new standard instrument approach procedures at Lawrence Smith Memorial Airport, Harrisonville, MO. This action is necessary for the safety and management of IFR operations at the airport. Geographic coordinates are also being updated to coincide with the FAA's aeronautical database.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace for Lawrence Smith Memorial Airport, Harrisonville, MO.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR Part 71 as follows:

History

On April 19, 2011, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace for El Dorado, KS, reconfiguring controlled airspace at Captain Jack Thomas/El Dorado Airport (76 FR 21827) Docket No. FAA-2011-0213. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9U dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class E airspace extending upward from 700 feet above the surface for the El Dorado, KS area. Decommissioning of the El Dorado NDB and cancellation of the NDB approach at Captain Jack Thomas/El Dorado Airport has made reconfiguration of the airspace necessary for the safety and management of IFR operations at the airport. Geographic coordinates are also being updated to coincide with the FAA's aeronautical database.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Captain Jack Thomas/El Dorado Airport, El Dorado, KS.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR Part 71 as follows:

History

On March 7, 2011, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace at Orange Municipal Airport, Orangeburg, SC (76 FR 12298) Docket No. FAA-2010-1325. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9U dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface to support new standard instrument approach procedures developed at Orangeburg Municipal Airport, Orangeburg, SC. Airspace reconfiguration is necessary due to the decommissioning of the Orangeburg NDB and cancellation of the NDB approach, and for continued safety and management of IFR operations at the airport. The geographic coordinates for the airport are being adjusted to coincide with the FAA's aeronautical database.

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, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at Orangeburg, SC.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR Part 71 as follows:

History

On April 19, 2011, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace for Mobridge, SD, creating additional controlled airspace at Mobridge Municipal Airport (76 FR 21828) Docket No. FAA-2011-0134. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9U dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR Part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace extending upward from 700 feet above the surface for new standard instrument approach procedures at Mobridge Municipal Airport, Mobridge, SD. This action is necessary for the safety and management of IFR operations at the airport. Geographic coordinates are also being updated to coincide with the FAA's aeronautical database.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace for Mobridge Municipal Airport, Mobridge, SD.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR Part 71 as follows:

The Rule

This action amends Title 14, Code of Federal Regulations (14 CFR) part 71 to remove Class D and E airspace at Willow Grove, PA. The closing of the Willow Grove NAS and cancellation of all standard instrument approachprocedures eliminates the need of controlled airspace. Since this action eliminates the impact of controlled airspace on users of the National Airspace System in the vicinity of Willow Grove, PA, notice and public procedures under 5 U.S.C. 553(b) are unnecessary.

Class D and Class E airspace designations are published in Paragraphs 5000, 6004, respectively, of FAA Order 7400.9U, dated August 15, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. 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.

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 removes controlled airspace at Willow Grove, PA.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR Part 71 as follows:

Background

The Entity List provides notice to the public that certain exports, reexports, and transfers (in-country) to entities identified on the Entity List require a license from BIS and that the availability of license exceptions in such transactions is limited. Entities are placed on the Entity List on the basis of certain sections of part 744 (Control Policy: End-User and End-Use Based) of the EAR.

The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, when appropriate,Treasury, makes all decisions regarding additions to, removals from, or other changes to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and all decisions to remove or modify an entry by unanimous vote.

This rule implements the decision of the ERC to add six persons to the Entity List on the basis of section 744.11 (License requirements that apply to entities acting contrary to the national security or foreign policy interests of the United States) of the EAR. The six entries added to the Entity List consist of two persons in Hong Kong and four persons in Lebanon.

The ERC reviewed section 744.11(b) (Criteria for revising the Entity List) in making the determination to add these persons to the Entity List. Under that paragraph, persons for which there is reasonable cause to believe, based on specific and articulable facts, that the persons have been involved, are involved, or pose a significant risk of being or becoming involved in, activities that are contrary to the national security or foreign policyinterests of the United States and those acting on behalf of such persons may be added to the Entity List pursuant to section 744.11. Paragraphs (b)(1)-(b)(5) include an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States.

Pursuant to 15 CFR 744.11(b)(2) and 15 CFR 744.11(b)(5), the persons are being added to the Entity List based on evidence that they have engaged in actions that could enhance the military capability of Iran, a country designated by the U.S. Secretary of State as having repeatedly provided support for acts of international terrorism. These persons are also added because their overall conduct poses a risk of ongoing EAR violations. The six companies are added based on evidence that they purchased electronic components from U.S. firms and then resold the components to companies in Iran without the required U.S. export license. The same components were later found in Iraq in unexploded improvised explosive devices.

This rule adds six persons to the Entity List on the basis of section 744.11 of the EAR. For all of the six persons added to the Entity List, the ERC specifies a license requirement for all items subject to the EAR and establishes a license application review policy of a presumption of denial. The license requirement applies to any transaction in which items are to be exported, reexported, or transferred (in-country) to such persons or in which such persons act as purchaser, intermediate consignee, ultimate consignee, or end-user. In addition, no license exceptions are available for exports, reexports, or transfers (in-country) to those persons being added to the Entity List. Specifically, this rule adds the following six persons to the Entity List:

(1)Biznest, LTD,Room 927 9/F Far East Consortium Building, 121 Des Voeux Road C, Central District, Hong Kong; and

(2)Yeraz, LTD,Room 927 9/F Far East Consortium Building, 121 Des Voeux Road C, Central District, Hong Kong.

(1)Micro Power Engineering Group,a.k.a MPEG, Anwar Street, Abou Karam Building, 1st Floor, Jdeidet El Metn, Beirut, Lebanon;

(2)Narinco Micro Sarl,Dedeyan Center, Dora Boulevard Street, Bauchrieh Metn, Lebanon;

(3)Serop Elmayan and Sons Lebanon,Ground Floor, Aramouni Building, Property Number 1731, Fleuve Street, Mar Mekhael Sector, Beirut, Lebanon; and

(4)Serpico Offshore Sarl, Ground Floor, Aramouni Building, Property Number 1731, Fleuve Street, Mar Mekhael Sector, Beirut, Lebanon.

Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting or reexporting carrier, or en route aboard a carrier to a port of export or reexport, on July 25, 2011, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR) so long as they are exported or reexported before August 9, 2011. Any such items not actually exported or reexported before midnight, on August 9, 2011, require a license in accordance with the EAR.

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 12, 2010, 75 FR 50681 (August 16, 2010), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by the OMB under control numbers 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 43.8 minutes for a manual or electronic submission. Total burden hours associated with the Paperwork Reduction Act and Office of Management and Budget control number 0694-0088 are expected to increase slightly as a result of this rule. You may send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget (OMB), by e-mail toJasmeet_K._Seehra@omb.eop.gov,or by fax to (202) 395-7285.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public comment and a delay in effective date are inapplicable because this regulation involves a military or foreign affairs function of the United States. (See5 U.S.C. 553(a)(1)). BIS implements this rule to protect U.S. national security or foreign policy interests by preventing items from being exported, reexported, or transferred (in country) to the persons being added to the Entity List. If this rule were delayed to allow for notice and comment and a delay in effective date, then entities being added to the Entity List by this action would continue to be able to receive items without a license and to conduct activities contrary to the national security or foreign policy interests of the United States. In addition, because these parties may receive notice of the U.S. Government's intention to place these entities on the Entity List once a final rule was published it would create an incentive for these persons to either accelerate receiving items subject to the EAR to conduct activities that are contrary to the national security or foreign policy interests of the United States and/or to take steps to set up additional aliases, change addresses and take other steps to try to limit the impact of the listing on the Entity List once a final rule was published. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601et seq.,are not applicable.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

I. Background

On July 21, 2010, President Obama signed into law the Dodd-Frank Act.1 In relevant part, Title IX of the Dodd-Frank Act directs Federal agencies to take certain actions concerning any reference to—or requirement of reliance on—credit ratings in each agency's respective regulations. Specifically, section 939A of the Dodd-Frank Act requires agencies to take three actions by July 21, 2011, the one-year anniversary of the enactment of the Dodd-Frank Act. First, section 939A(a) directs each Federal agency to review “any regulation issued by such agency that requires the use of an assessment of the credit-worthiness of a security or money market instrument [and] any references to or requirements in such regulations regarding credit ratings.” Second, section 939A(b) requires that each Federal agency “modify any such regulations identified by the review conducted under subsection (a) to remove any reference to or requirement of reliance on credit ratings and to substitute in such regulations such standard of credit-worthiness as each respective agency shall determine as appropriate for such regulations.” To the extent feasible, Federal agencies should “seek to establish * * * uniform standards of credit-worthiness for use by each such agency.” And third, section 939A(c) directs each Federal agency to report to Congress “a description of any modification of any regulation such agency made pursuant to subsection (b).”

Subsequent to the enactment of the Dodd-Frank Act, the Commission reviewed its regulations and identified instances in which credit ratings were referred to or relied upon.2 The identified regulations could be categorized into two groups: (1) those that rely on ratings to limit how Commission registrants may invest or deposit customer funds; and (2) those that require disclosing a credit rating to describe an investment's characteristics. In keeping with its efforts to comply fully with both the spirit and letter of the Dodd-Frank Act, the Commission proposed to amend all of the identified regulations that rely on credit ratings regarding financial instruments.

On November 2, 2010, the Commission published in theFederal Registerproposed amendments to certain of its existing regulations (the “Proposing Release”) in response to the directives set forth in section 939A of the Dodd-Frank Act.3 Specifically, the Commission addressed two regulations in the Proposing Release: (1) Regulation 1.49, which places qualifications on the types of depositories where FCMs and DCOs might place customer funds; and (2) Regulation 4.24, wherein credit ratings are used to help disclose the characteristics of an investment.4

Regulation 1.49, which mirrors Regulation 30.7,5 requires that an acceptable foreign depository must either: (1) Have in excess of $1 billion of regulatory capital; or (2) issue commercial paper or a long-term debt instrument that is rated in one of the two highest rating categories by at least one nationally recognized statistical rating organization (“NRSRO”). In the Proposing Release, the Commission proposed to remove all ratings requirements from Regulation 1.49. The Commission based its proposal on its views regarding the uncertain reliability of ratings as currently administered, particularly in light of the significant weaknesses of the ratings industry that were revealed in recent years. The Commission noted the poor past performance of credit ratings in gauging the safety of certain types of investments, and its view that credit ratings are not necessary to gauge the future ability of certain types of investments to preserve customer funds. The proposal was intended to align Regulation 1.49 with proposed Regulations 1.25 and 30.7, and to greater simplify the regulatory treatment of the investment of customer funds.

With respect to the proposed amendment of Regulation 1.49, the Commission requested comment on: (1) Whether relying on a minimum capital requirement of $1 billion dollars in regulatory capital is an adequate alternative standard to the current Regulation 1.49; and (2) whether another standard or measure of solvency and credit-worthiness should be used as an appropriate, additional test of a bank's safety, such as a leverage ratio or a capital adequacy ratio requirement consistent with or similar to those in the Basel III accords. The Commission also stated that it would welcome any other comments on the proposal.

In addition to the proposed amendment to Regulation 1.49, the Proposing Release also proposed to amend Regulation 4.24. Regulation 4.24 requires CPOs to disclose the characteristics of the commodity and other interests that the pool will trade, including, if applicable, their investment rating. In order to comply fully with the spirit and letter of the Dodd-Frank Act, the Commission proposed removing the references to ratings in Regulation 4.24 and replacing that reference with the phrase “credit-worthiness.” In the Proposing Release, the Commission expressly noted that CPOs may still choose to reference an investment rating to describe the credit-worthiness of an investment in its disclosures. However, the Commission noted that the CPO as appropriate should make an independent assessment of the credit-worthiness of those investments.

The Commission requested comment on its proposed amendment of Regulation 4.24, particularly with respect to what effect the removal of the credit ratings reference in Regulation 4.24 might have on the ability of investors and others to understand the disclosures of CPOs regarding the characteristics of a commodity pool. The Commission also requested comment on the ability of CPOs to make independent assessments of the credit-worthiness of their pool's investments.

In response to the Proposing Release, the Commission received three comments, two of which were not responsive to the issues presented in the Notice. The other commenter forwarded a letter originally submitted in response to an advance notice of proposed rulemaking issued by the Federal banking agencies.6 The commenter discussed issues and options surrounding the implementation of section 939A of the Dodd-Frank Act, and offered analytical services to refine alternatives to credit ratings. However, the commenter did not raise any factual or policy concern relating to the rule amendments proposed by the Commission in the Proposing Release.

After considering the comments received in response to the Proposing Release, the Commission has determined to amend Regulations 1.49 and 4.24 as proposed. Section 939A of the Dodd-Frank Act directs each Federal agency, including the Commission, “to remove any reference to or requirement of reliance on credit ratings and to substitute in such regulations such standard of credit-worthiness as each respective agency shall determine as appropriate for such regulations.” As acknowledged in the Proposing Release, the Commission proposed the amendments to Regulations 1.49 and 4.24, in part, to facilitate “its efforts to fully comply with both the spirit and letter of the Dodd-Frank Act.” The amendments set forth herein are narrowly tailored to accomplish that task, while maintaining the commitment to the protection of customer funds that the Commission continually has promoted over the years.

Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before issuing a rulemaking under the Act. Section 15(a) further specifies that the costs and benefits shall be evaluated in light of the five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations.7 The Commission may in its discretion give greater weight to any one of the five enumerated areas and could in its discretion determine that, notwithstanding its costs, a particular rule is necessary or appropriate to protect the public interest or to effectuate any of the provisions or accomplish any of the purposes of the Act.

Although the Commission specifically requested public comment on appropriate alternatives to the rule language contained in the Proposing Release,8 the Commission received no such comments, nor did the Commission receive any substantive comments on the costs and benefits related to the rule. Section 939A instructs the Commission to implement the removal of any references to or reliance on credit ratings in its rules and regulations.

Because of the statutory requirement to remove the reference to credit ratings from Regulation 1.49, investments in foreign depositories that have less than $1 billion in regulatory capital, but that previously were eligible depositories in reliance upon their credit ratings, may no longer be eligible depositories for customer funds. The consequences of this regulatory action may impose transaction costs associated with transferring customer funds, if necessary, to another depositor if a foreign depository is no longer eligible. Costs also may be borne by foreign banks or trusts that will no longer be eligible to receive deposits of customer funds under Regulation 1.49, given the resultant loss of business.

However, the amendments to Regulation 1.49 reflect the statutory mandate set forth under section 939A of the Dodd-Frank Act. The Commission acknowledged in the Proposing Release the uncertain reliability of ratings as currently administered, the poor past performance of credit ratings in gauging the safety of certain types of investments, and the Commission's view that credit ratings are not necessary to gauge the future ability of certain types of investments to preserve customer funds. Although the Commission specifically “request[ed] comment on whether there is another standard or measure of solvency and creditworthiness that might be used as an appropriate, additional test of a bank's safety,”9 the Commission received no comments offering an appropriate alternative to the amendments to Regulation 1.49 that were contained in the Proposing Release. In light of the uncertain reliability of ratings and their poor past performance, the Commission believes that the elimination of references to credit ratings in Regulation 1.49 will enhance the protection of market participants and the public, as well as enhance sound risk management practices, by requiring that if customer funds are held in a non-U.S. bank or trust company, the non-U.S. bank or trust company have more than $1 billion of regulatory capital. The capital standard will afford greater protection of customer funds. Such protections will, in turn, promote the financial integrity of futures markets by reducing the likelihood of loss, relative to the status quo.

Similarly, the statutory requirement to modify Regulation 4.24 has the potential benefit of reducing risk in the financial system by placing more responsibility on CPOs to fully understand the credit-worthiness of investments. CPOs will be required to make an independent assessment, as appropriate, of the credit-worthiness of investments in their portfolio rather than relying solely on credit ratings, though CPOs will not be prohibited from relying on credit ratings, as appropriate. Customers of CPOs may benefit from improved disclosure of the credit-worthiness of the investments in which funds are placed. In light of the specific issues identified by the Commission concerning the reliance of credit ratings, as discussed in greater detailsupra,the Commission believes that the rule will enhance the protection of market participants and the public, promote the financial integrity of futures markets, and enhance sound risk management practices. Costs may be imposed on CPOs in improving their ability to make independent assessments of credit-worthiness. Although CPOs will not be prohibited from relying on credit ratings under Regulation 4.24, circumstances may require a CPO to engage in further assessments of the credit-worthiness of the investments in which funds are placed, as appropriate, beyond merely citing the ratings of those investments by a NRSRO. However, notwithstanding its costs, this rule is necessary and appropriate to protect the public interest, and effectuates the mandate prescribed in section 939A of the Dodd-Frank Act.

The Regulatory Flexibility Act (“RFA”) requires Federal agencies, in promulgating rules, to consider the impact of those rules on small businesses, and whether the rules will have a significant economic impact on a substantial number of small entities.10 The rule amendments proposed herein will affect FCMs, DCOs, and CPOs. The Commission previously has established certain definitions of “small entities” to be used by the Commission in evaluating the impact of its regulations on small entities in accordance with the RFA, and has determined that registered FCMs,11 DCOs,12 and CPOs13 are not small entities for the purpose of the RFA. Accordingly, as set forth in the Proposing Release,14 the Chairman, on behalf of the Commission and pursuant to 5 U.S.C. 605(b), certifies that the proposed rules will not have a significant economic impact on a substantial number of small entities.

The Paperwork Reduction Act (“PRA”)15 imposes certain requirements on Federal agencies (including the Commission) in connection with their conducting or sponsoring any collection of information as defined by the PRA. These rule amendments do not require a new collection of information on the part of any entities subject to the rule amendments. Accordingly, for purposes of the PRA, the Commission certifies that these rule amendments will not impose any new reporting or recordkeeping requirements.

For the reasons stated in this release, the Commission hereby amends 17 CFR parts 1 and 4 as follows:

In FR Doc. 2011-9567 appearing on page 24576 in theFederal Registerof Monday, May 2, 2011, the following corrections are made:

Definitions

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

(i) The words or initialsActorCAAmean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The wordsEPA, we, usorourmean or refer to the United States Environmental Protection Agency.

(iii) The initialsSIPmean or refer to State Implementation Plan.

Throughout this document wherever, any reference to “we,” “us,” or “our” is used, we mean EPA.

We are taking direct final action to approve severable portions of three revisions to the Texas SIP submitted on August 31, 1993, July 22, 1998, and October 5, 2010. The August 31, 1993, SIP submittal creates two new sections, 116.174 and 116.175, establishing the requirements for use and recordkeeping of emission reductions in New Source Review (NSR) permitting. The July 22, 1998 SIP submittal creates a new section at 116.116(f) that allows the use of Discrete Emission Reduction Credits (DERCs) to be used to exceed permit allowables and amends existing section 116.174 to correctly cross-reference other Texas permitting regulations. The October 5, 2010, SIP submittal amends section 116.116(f) to correctly cross-reference the SIP-approved DERC rules at Title 30 of the Texas Administrative Code (30 TAC) Chapter 101, Subchapter H, Division 4. We are approving new sections 116.174 and 116.175 submitted on August 31, 1993. We are approving new section 116.116(f) and amendments to section 116.174 submitted on July 22, 1998. Finally, we are approving the amendment to section 116.116(f) submitted on October 5, 2010.

We are publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no relevant adverse comments. As explained in our technical support document (TSD), we are finding this action noncontroversial because the three rules that are the subject of our approval serve to cross-reference current SIP-approved sections. However, in the proposed rules section of thisFederal Registerpublication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if relevant adverse comments are received. This rule will be effective on September 23, 2011 without further notice unless we receive relevant adverse comment by August 24, 2011. If we receive relevant adverse comments, we will publish a timely withdrawal in theFederal Registerinforming the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so now. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

We are approving severable provisions of three SIP revisions that the Texas Commission on Environmental Quality (TCEQ) adopted on August 16, 1993; June 17, 1998; and September 15, 2010 and submitted to EPA on August 31, 1993; July 22, 1998; and October 5, 2010, respectively. Copies of the revised rules as well as the Technical Support Document (TSD) can be obtained from the Docket, as discussed in the “Docket” section above. A discussion of the specific Texas rule changes that we are approving is included in the TSD and summarized below. The TSD also contains a discussion as to why EPA is not taking action on certain provisions of each Texas SIP submittal and documents why these provisions are severable from the provisions that we are approving.

• We are taking no action in this direct final rule upon revisions to 30 TAC Section 116.410 for emergency orders, submitted on August 31, 1993, because this provision is severable from the emission reduction provisions and subsequent emergency order provisions are still pending EPA review. EPA will address this rule in a separate action. EPA is currently under a Settlement Agreement to take action on the emergency order provisions on or before December 31, 2012.

• We are also taking no action in this direct final rule upon revisions to 30 TAC Section 116.620 for Installation and/or Modification of Oil and Gas Facilities submitted on July 22, 1998. The provisions are severable from the emission reduction provisions that are the subject of today's action. EPA will address this rule in a separate action. Additionally, EPA is currently under a Consent Decree to take action on the Installation and/or Modification of Oiland Gas Facilities provisions on or before October 31, 2011.

• We are taking no action upon revisions to 30 TAC Section 116.311(a) pertaining to qualified facilities for permit renewals submitted on July 22, 1998, because the qualified facility program provisions are severable from the emission reduction provisions for permitting and will be addressed by EPA at a later date in a separate action.

• We are taking no action upon revisions to 30 TAC Section 116.312 submitted on July 22, 1998, which relates to public participation for permit renewals. These public participation provisions are severable from the emission reduction provisions for permitting and will be addressed by EPA at a later date in a separate action.

• We are taking no action upon the remainder of the revisions to 30 TAC Chapter 116 submitted on October 5, 2010. The remainder of this SIP submittal package concerns the qualified facilities program, which is severable from the emission reductions provisions for permitting and will be addressed by EPA at a later date in a separate action.

The TCEQ adopted section 116.174 on August 16, 1993, to provide the criteria by which the TCEQ Executive Director (ED) will determine whether emission reductions can be used for purposes of NSR permitting. Section 116.174 requires that the ED approve reductions for use pursuant with requirements set forth in SIP-approved section 116.170. Additionally, any emission reductions approved for use as offsets by the ED must be made as enforceable permit conditions.

The TCEQ adopted new section 116.175 on August 16, 1993, to establish that the recordkeeping burden for the generation and use of emission reductions in NSR permitting is on the applicant. The TCEQ will only maintain records associated with the permit application and files. The permit applicant is responsible for making all records related to the emission reductions available upon request by the ED.

The TCEQ adopted new section 116.116(f) on June 17, 1998, to provide that DERCs generated under the TCEQ's banking and trading provisions at 30 TAC Section 101.29 can be used to exceed permit allowables, if all applicable requirements of section 101.29 are satisfied. Since the adoption of section 116.116(f), the TCEQ has recodified the SIP-approved DERC provisions from 30 TAC Section 101.29 to 30 TAC Section 101.376. The use of DERCs cannot be used to authorize any physical changes to a facility.

EPA reviewed and conditionally approved the DERC program on September 6, 2006 (see 71 FR 52703). This conditional approval was converted to a full approval on May 18, 2010 (see 75 FR 27644). The full approval action resulted after we found TCEQ to have satisfied all elements that were outlined in a commitment letter submitted by TCEQ, dated September 8, 2005. This commitment letter can be found in the docket for our approval of the DERC program at EPA-R06-OAR-2005-TX-0029. The DERC rules establish a type of Economic Incentive Program (EIP), in particular an open market emission trading (OMT) program as described in EPA's EIP Guidance document, “Improving Air Quality with Economic Incentive Programs” (EPA-452/R-01-001, January 2001). In an OMT program, a source generates short-term emission credits (called discrete emission reduction credits, or DERCs, in the Texas program) by reducing its emissions. The source can then use these DERCs at a later time, or trade them to another source to use at a later time. The trading program assumes that many sources will participate and continuously generate new DERCs to balance with other sources using previously generated discrete credits. DERCs are quantified, banked and traded in terms of mass (tons) and may be generated and used statewide. Reductions of all criteria pollutants, with the exception of lead, may be certified as DERCs.

The TCEQ adopted amendments to section 116.174 on June 17, 1998, to remove outdated references to the Texas Air Control Board, and to update references to other sections of the Texas NSR permitting regulations where emission reductions can be used in permits.

The TCEQ adopted amendments to section 116.116(f) on September 15, 2010, to change references to outdated section 101.29 to the current SIP-approved section 101.376.

The August 31, 1993 submittal (adopted by TCEQ on August 16, 1993) of new section 116.174 is approvable. New section 116.174 requires that the ED approve the use of emission reductions pursuant to the requirements in section 116.170. We approved section 116.170 on March 20, 2009, as consistent with the requirements of section 173 of the CAA and 40 CFR Part 51, Subpart I (see 74 FR 11851).

The August 31, 1993 submittal (adopted by TCEQ on August 16, 1993) of new section 116.175 is approvable. New section 116.175 was adopted to place the recordkeeping burden on the use of emission reductions in NSR permitting in accordance with section 116.170 on the permit applicant rather than the TCEQ. The TCEQ will maintain records contained in the permit application and permit files, but all other information necessary to verify the emission reductions used in the permit are the responsibility of the permit holder and must be made available at the request of the TCEQ ED. Placing the burden of proof on the permit holder is consistent with the requirements in NSR and Prevention of Significant Deterioration (PSD) permitting at 40 CFR Part 51, Subpart I, that the permit holder maintain all necessary records to substantiate emission reductions and verify emission limitations. Further, the SIP-approved Emissions Banking and Trading Provisions at 30 TAC Chapter 101, Subchapter H, Divisions 1 and 4 for the Emission Reduction Credit and Discrete Emission Reduction Credit programs, makes clear that the generator and user of the emission reductions—not the TCEQ—is responsible for maintaining all necessary records to substantiate the reduction (see 30 TAC Sections 101.302(g) and 101.372(h)).

The July 22, 1998 submittal (adopted by TCEQ on June 17, 1998), which created new section 116.116(f) is approvable. New section 116.116(f) is necessary to adequately implement the Chapter 116 permitting program for new construction and modification. The newsection 116.116(f) provides that DERCs can be used as offsets in NSR permitting, consistent with the TCEQ's banking and trading provisions at former 30 TAC Section 101.29. EPA approved the use of DERCs in NSR permitting as consistent with the requirements of section 173 of the CAA on September 6, 2006 (see 71 FR 52703). Since the adoption of section 116.116(f), the TCEQ has recodified the SIP-approved DERC provisions from 30 TAC Section 101.29 to 30 TAC Section 101.376. EPA is approving the July 22, 1998 adoption of section 116.116(f) and a subsequent revision that updates the cross-reference.

The July 22, 1998 submittal which amends section 116.174 is approvable. The amendments remove outdated references to the Texas Air Control Board and update internal cross references to other sections (in Chapter 116) where emission reductions can be used in NSR permitting. The TCEQ has a responsibility under the CAA to routinely update the permitting regulations to include accurate information.

The October 5, 2010 submittal (adopted by the TCEQ on September 15, 2010) of the amendments to section 116.116(f) are approvable. These amendments update the outdated references to obsolete section 101.29 with the current citation to section 101.376, and are necessary to adequately implement the Chapter 116 permitting program for new construction and modifications. EPA approved the use of DERCs as NSR offsets consistent with section 173 of the CAA on September 6, 2006 (see 71 FR 52703).

Section 110(l) of the Clean Air Act states:

Section 116.116(f) will not interfere with attainment, reasonable further progress, or any other applicable requirement of the Act. Section 116.116(f) refers to a SIP-approved usage of DERCs to exceed permit allowables. This use of DERCs to exceed permit allowables was previously conditionally approved into the SIP on September 6, 2006, and fully approved by EPA on May 18, 2010, to be consistent with section 110(l) of the CAA, see 70 FR 58165 and 75 FR 27644, respectively. In our proposed approval notice of the DERC program we stated that:

Section 116.174 will not interfere with attainment, reasonable further progress, or any other applicable requirement of the Act. Section 116.174 states that the TCEQ ED will approve the use of emission reductions for NSR permitting consistent with the requirements of section 116.170. EPAapproved section 116.170 into the SIP and found that it is consistent with section 110(l) of the CAA on March 20, 2009 (74 FR 11851).

Section 116.175 will not interfere with attainment, reasonable further progress, or any other applicable requirement of the Act. Section 116.175 states that the recordkeeping burden for emission reduction usage will be on the permit holder, but all other information necessary to verify the emission reductions used in the permit are the responsibility of the permit holder and must be made available at the request of the TCEQ ED. These recordkeeping requirements will not violate section 110(l).

EPA is taking direct final action to approve revisions to the Texas SIP submitted on August 31, 1993, July 22, 1998, and October 5, 2010. Specifically, EPA is approving new sections 116.174 and 116.175, submitted on August 31, 1993, establishing the approval criteria and recordkeeping requirements for emission reductions used in NSR permitting. We are also approving new section 116.116(f) that provides for the use of DERCs in NSR permitting and amendments to section 116.174 submitted on July 22, 1998. We are also approving amendments to section 116.116(f), submitted on October 5, 2010 to correctly update internal citations to the TCEQ DERC program.

As explained previously, EPA is not acting on other severable portions of the August 31, 1993; July 22, 1998; and October 5, 2010 SIP submittals. Specifically, EPA is not taking action on the revisions to section 116.410 submitted on August 31, 1993. EPA is not taking action on the revisions to sections 116.311(a), 116.312, or 116.610 submitted on July 22, 1998. Additionally, EPA is not taking action on the remainder of the October 5, 2010, submittal. These revisions remain under review by EPA and will be addressed in separate actions.

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, 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 Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et 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. 601et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. section 801et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal 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 September 23, 2011. 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).)

40 CFR part 52 is amended as follows:

The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.

Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.

The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001et seq.,and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by otherFederal, State, or regional entities. The changes in BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act.This interim rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act.As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification.This interim rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism.This interim rule involves no policies that have federalism implications under Executive Order 13132, Federalism.

Executive Order 12988, Civil Justice Reform.This interim rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR part 65 is amended to read as follows:

In a Third Report and Order and Order on Reconsideration released on October 14, 2011, FCC 10-181, and published in theFederal Registeron July 8, 2011, 76 FR 40263, the Federal Communications Commission adopted a new rule which contained information collection requirements subject to the Paperwork Reduction Act. The Third Report and Order and Order on Reconsideration stated that the rule changes requiring OMB approval would become effective upon announcement in theFederal Registerof OMB approval. On July 12, 2011, the Office of Management and Budget (OMB) approved the information collection requirements contained in 47 CFR 76.1205(b)(1), 76.1205(b)(1)(i), 76.1205(b)(2), 76.1205(b)(5), and 76.1602(b). These information collections are assigned OMB Control No. 3060-0849 and OMB Control No. 3060-0652. This publication satisfies the statement that the Commission would publish a document announcing the effective date of the rule changes requiring OMB approval.

This is a synopsis of the Commission's Memorandum Opinion and Order, MB Docket No. 04-319, adopted June 16, 2011, and released June 17, 2011. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 orhttp://www.BCPIWEB.com.

TheReport and Orderdenied East Kentucky's rulemaking petition because it proposed an effective radiated power (“ERP”) below the minimum required for Class C3 FM stations under § 73.211 of the Commission's rules.See72 FR 16315 (April 4, 2007). The staff reversed theReport and Order,explaining that a station may have a height above average terrain (“HAAT”) greater than the class reference provided that it reduces its ERP such that the distance to its 60 dBu contour exceeds the reference distance for the next lower class and does not exceed the reference distance for its class. Because East Kentucky's proposal met these requirements, the staff reinstated and granted the rulemaking petition. The document also rejected an argument that the proposal was not technically feasible due to a terrain obstruction.

To accommodate East Kentucky's upgrade, the staff involuntarily modified the license of Station WDIC-FM, Clinchco, Virginia, from Channel 221A to Channel 276A. The reference coordinates for Channel 221C3 at Coal Run, Kentucky, are 37-23-57 NL and 82-23-42 WL, and for Channel 276A at Clinchco, Virginia, are 37-08-42 NL and 82-23-22 WL.

East Kentucky's proposal was formerly a rule change to § 73.202(b), the FM Table of Allotments.See69 FR 51414 (August 19, 2004). As a result of changes to the Commission's processing rules, modifications of FM channels for existing stations are no longer listed in § 73.202(b) and are instead reflected in the Media Bureau's Consolidated Data Base System.See Revision of Procedures Governing Amendments to FM Table of Allotments and Changes of Community of License in the Radio Broadcast Services,Report and Order, 71 FR 76208 (December 20, 2006).

This document is not subject to the Congressional Review Act. (The Commission is, therefore, not required to submit a copy of this Report and Order to GAO, pursuant to the Congressional Review Act,see5 U.S.C. 801(a)(1)(A) because no changes are being made to 47 CFR 73.202(b)).

This is a synopsis of the Commission'sReport and Order,MB Docket No. 11-74, adopted July 11, 2011, and released July 12, 2011. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC, 20554. This document will also be available via ECFS (http://fjallfoss.fcc.gov/ecfs/). This document may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-478-3160 or via the company's Web site,http://www.bcipweb.com. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail tofcc504@fcc.govor call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,see44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

The Commission will send a copy of thisReport and Orderin a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional review Act,see5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

I. Background

United States laws provide for special emergency procurement authorities to be used—

(a) In support of a contingency operation;

(b) To facilitate the defense against or recovery from nuclear, biological,chemical, or radiological attack against the United States; and

(c) In support of a humanitarian or peacekeeping operation.

The first two of the authorities above were made available for use by agencies in addition to DoD by placing them at 41 U.S.C. 1903 (formerly 41 U.S.C. 428a). The latter authority resides solely in DoD.

The three special emergency procurement authorities are specified in statute:

• Contingency operation: 10 U.S.C. 101(13) and 41 U.S.C. 1903 (formerly 41 U.S.C. 428a).

• Defense against or recovery from nuclear, biological, chemical, or radiological attack against the United States: 41 U.S.C. 1903 (formerly 41 U.S.C. 428a).

• Humanitarian or peacekeeping operation: 10 U.S.C. 2302(7).

After September 11, 2001, the Governmentwide special emergency procurement authorities were enacted (41 U.S.C. 1903 (formerly 41 U.S.C. 428a). These authorities provided for increases in the simplified acquisition threshold and/or micropurchase threshold depending on what type of special emergency is declared. The Federal Acquisition Regulation (FAR) was revised to implement the authority to increase thresholds when supporting a contingency operation or facilitating the defense against or recovery from nuclear, biological, chemical, or radiological attack against the United States.

While the definition of a humanitarian or peacekeeping operation is included in the FAR at 2.101, 41 U.S.C. 1903 does not provide Governmentwide authority for raising the simplified acquisition threshold in support of such operations. Therefore, its authority is included in the DFARS. Specific to the authority to support a humanitarian or peacekeeping operation, the simplified acquisition threshold can be increased to double the current basic simplified acquisition threshold, currently $150,000 as specified in FAR 2.101, but only when the purchase is made, or the contract is awarded and performed, outside the United States. There is no comparable authority to increase the micropurchase threshold for acquisitions in support of a humanitarian or peacekeeping operation.

Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This is not a major rule under 5 U.S.C. 804.

DoD does not expect this interim rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,et seq.,because the rule does not impose any requirements on U. S. small businesses. The statute applies only to purchases made, or contracts awarded and performed, outside the United States and only to those acquisitions that directly support a humanitarian or peacekeeping operation. Therefore, an initial regulatory flexibility analysis has not been performed.

DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2011-D032) in correspondence.

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Pursuant to 41 U.S.C. 1707 (formerly 41 U.S.C. 418b) and FAR 1.501-3(b), a determination has been made under the authority of the Secretary of Defense (DoD) that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary because the statutory authority for doubling the simplified acquisition threshold in support of a humanitarian or peacekeeping operation is not included in the DFARS currently, and is, therefore, generally not known to be available. It is imperative that DoD contracting officers be aware of this threshold for immediate implementation in DoD acquisitions. However, DoD will consider public comments received in response to this interim rule in the formation of the final rule.

Therefore, 48 CFR parts 202 and 218 are amended as follows:

I. Background

DoD published an interim rule at 75 FR 67632 on November 3, 2010, to implement section 1038 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-84). Section 1038 prohibits contractor personnel from interrogating detainees under the control of the Department of Defense. It also allows the Secretary of Defense to waive the prohibition for a limited period of time, with limited redelegation authority, if determined necessary to the national security interests of the United States. The interim rule added coverage at DFARS 237.173 and a new clause at DFARS 252.237-7010 that prescribes policies prohibiting interrogation of detainees by contractor personnel, as required by section 1038 of the NDAA for Fiscal Year 2010. The DFARS also covers permissible support roles for contractors by providing that contractor personnel with proper training and security clearances may be used as linguists, interpreters, report writers, information technology technicians, and other employees filling ancillary positions, including as trainers of, and advisors to, interrogations, if the contractor personnel meet the criteria provided by DoD Instruction 1100.22, Policy and Procedures for Determining Workforce Mix(http://www.dtic.mil/whs/directives/corres/pdf/110022p.pdf);DoD Directive 2310.01E, The Department of Defense Detainee Program(http://www.dtic.mil/whs/directives/corres/pdf/231001p.pdf);and DoD Directive 3115.09, DoD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioninghttp://www.dtic.mil/whs/directives/corres/pdf/311509p.pdf.

The public comment period closed on January 3, 2011. Three respondents provided comments on the interim rule.

A summary of the comments received and their analysis grouped by category follows.

Comment:Three respondents provided comments supporting the idea that establishing an effective system of managing and overseeing contractors supporting interrogations must be accorded the highest priority. However, the respondents did not support the provision at DFARS 237.173-4 that allows the Secretary of Defense to waive the prohibition on contractor interrogations for up to 60 days on the grounds of national security interests. The respondents considered the function to be inherently governmental, and one that should never be performed by contractor personnel.

Response:Section 1038 of the statute specifically provides the Secretary of Defense authority to waive, for a limited time, the prohibition on interrogation of detainees by contractor personnel. Contractor personnel with proper training and security clearances may be used as linguists, interpreters, report writers, information technology technicians, and other employees filling ancillary positions, including as trainers of and advisors to interrogators, in interrogations of detainees, provided that appropriately qualified and trained DoD personnel (military or civilian) are available to oversee the contractor's performance and to ensure that contractor personnel do not perform activities that are prohibited under DoD policy. Such personnel are subject to the same laws, rules, procedures, and policies pertaining to detainee operations and interrogations as those that apply to Government personnel in such positions in such interrogations (DFARS 237.173-3). Accordingly, no change has been made to the DFARS in response to these comments.

Comment:One respondent stated that DoD must prescribe a clear set of penalties for any violation of the new policy and recommended civil and criminal fines, imprisonment, the withholding of contract award fees, contract termination, and/or suspension and debarment.

Response:DoD has no authority to write civil or criminal penalties into the DFARS. Contracting officers have considerable discretion to exercise the usual broad range of contractual remedies,e.g.,withholding contract award fees, contract termination, or suspension and/or debarment. Accordingly, no change has been made to the DFARS in response to this comment.

Comment:One respondent expressed concern that there would be attempts to evade the new policy by transferring detainees to the custody of non-DoD agencies or foreign governments that are not governed by the DFARS limitations. The respondent also suggested that similar coverage at FAR 7.503(c)(8) should be considered.

Response:The acquisition regulations are written based on the presumption that Government employees act in good faith and in accordance with acquisition regulations and the law. Further, since the coverage at FAR 7.503(c)(8) lists “the direction and control of intelligence and counter-intelligence operations” as an example of an inherently governmental function, there would be no value added by reiterating this language in the DFARS.

Comment:One respondent recommended clarification of the definition of “detainee” in 237.173-2, which the respondent considered to be silent on the matter of whether the term “hostilities” (which is included in the definition of “detainee”) includes situations in which there has not been a formally declared war (e.g.,the detainee is classified as an unlawful combatant rather than a prisoner of war). The respondent noted that the definition's qualifier, “this includes but is not limited to,” suggests a broad definition for “hostilities.”

Response:The term “detainee” is defined at 237.173-2 as “any person captured, detained, held, or otherwise under the effective control of DoD personnel (military or civilian) in connection with hostilities. This includes, but is not limited to, enemy prisoners of war, civilian internees, and retained personnel. This does not include DoD personnel or DoD contractor personnel being held for law enforcement purposes.” This definition was derived from the “detainee” definition in the governing directive,DoDI 2310.01E, The Department of Defense Detainee Program, dated September 5, 2006. Paragraph 2.2 of the directive notes “This Directive applies during all armed conflicts, however such conflicts are characterized, and in all other military operations.” In addition, paragraph E.2.1. of DoDI 2310.01E notes that the definition of “detainee” includes “unlawful enemy combatants.” Accordingly, DoD has determined that clarification is not necessary, and no change has been made to the DFARS definition in response to this comment.

Comment:One respondent recommended clarifying the definition of “interrogation of detainees” in 237.173-2 by adding the same qualifer,i.e.,“this includes, but is not limited to,” as is found in the definition of “detainee.” The respondent stated that a difference between the two definitions could lead to confusion over whether this includes any other sort of non-“systematic,” “formal,” or “official” process of “questioning,” or questioning not done “for the purpose of obtaining reliable information to satisfy foreign intelligence collection requirements” (see 237.173-2).

Response:The definition of “interrogation of detainees” was derived from the definition for “intelligence interrogations” in DoDD 3115.09, DoD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning. This directive consolidates existing DoD policies, including the requirement for humane treatment during all intelligence interrogations, and speaks of interrogations exlusively in terms of the purpose of “obtaining reliable information to satisfy foreign intelligence collection requirements.” Accordingly, any questioning done for a purpose other than “obtaining reliable information to satisfy foreign intelligence collection requirements” is outside the scope of allowable activities under DoD policy. Accordingly, no change has been made to the DFARS definition in response to this comment.

Comment:One respondent proposed that water torture be banned. The respondent also proposed to make the Federal Government responsible when violations of human rights occur and recommended banning all torture and procedures that allow torture to occur.

Response:As noted previously, DoDD 3115.09 consolidates existing DoD policies, including the requirement for humane treatment during all intelligence interrogations for the purpose of gaining intelligence from captured or detained personnel. It is DoD policy that no person in the custody or physical control of DoD or detained in a DoD facility shall be subject to cruel, inhumane, or degrading treatment or punishment as defined in Title XIV of Public Law 109-163, also known as “The Detainee Treatment Act of 2005.” Accordingly, no change has been made to the DFARS in response to this comment.

Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

The Regulatory Flexibility Act, 5 U.S.C. 601,et seq.,applies to this rule. DoD prepared a final regulatory flexibility analysis (FRFA) that is summarized as follows:

The objective of this rule is to implement section 1038 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-84). This statute provides that no enemy prisoner of war, civilian internee, retained personnel, other detainee, or any other individual who is in the custody or under the effective control of DoD, or otherwise under detention in a DoD facility in connection with hostilities, may be interrogated by contractor personnel. It also allows the Secretary of Defense to waive the prohibition for a limited period of time, with limited redelegation authority, if determined necessary to the national security interests of the United States.

In Fiscal Year 2009, the latest year for which complete information is available, DoD awarded contracts for intelligence-related requirements to only 255 unique Data Universal Numbering System (DUNS) numbers. Of this total, there were 143 unique DUNS numbers for small business concerns.

This rule only prescribes policies that prohibit interrogation of detainees by contractor personnel. DoD anticipates that there will be no additional costs imposed on small businesses.

There is no reporting or recordkeeping requirement established by this rule. This rule does not duplicate, overlap, or conflict with any other Federal rules.

Interested parties may obtain a copy of the FRFA from the point of contact named herein. A copy of the FRFA has been submitted to the Chief Counsel for Advocacy of the Small Business Administration.

The rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2011 TAC of northern rockfish allocated to catcher/processors participating in the rockfish limited access fishery in the Central GOA is 150 metric tons (mt) as established by the final 2011 and 2012 harvest specifications for groundfish of the GOA (76 FR 11111, March 1, 2011), and as posted as the 2011 Rockfish Program Allocations athttp://alaskafisheries.noaa.gov/sustainablefisheries/goarat/default.htm.

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2011 TAC of northern rockfish allocated to catcher/processors participating in the rockfish limited access fishery in the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 125 mt, and is setting aside the remaining 25 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for northern rockfish by catcher/processors participating in the rockfish limited access fishery in the Central Regulatory Area of the GOA.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

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 closure of northern rockfish for catcher/processors participating in the rockfish limited access fishery in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 18, 2011.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.