The NRC is issuing a revision to an existing guide in the NRC's “Regulatory Guide” series. This series was developed to describe methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, to explain techniques that the staff uses in evaluating specific issues or postulated events, and to describe information that the staff needs in its review of applications for permits and licenses.

The proposed Revision 2 of RG 1.156 was issued with a temporary identification number of DG-1400 (ADAMS Accession No. ML21288A562).

Revision 2 of RG 1.156 describes basic procedures for qualifying connection assemblies ( e.g., connectors, terminations, and environmental seals in combination with related cables or wires as assemblies). The qualification requirements in this standard, when used in conjunction with RG 1.89 (ADAMS Accession No. ML003740271) allow an applicant or licensee to demonstrate and document the ability of the equipment to perform safety functions under applicable service conditions, including design-basis events. Additionally, Revision 2 of RG 1.156 modifies the title of the RG to include other nuclear facilities, as discuss in the RG Section A, under Applicability.

In January 2017 the staff conducted a periodic review of Revision 1 to RG 1.156, and on January 17, 2017, the staff reported the results of the periodic review, “Results of Periodic Review of Regulatory Guide 1.156,” (ADAMS Package Accession No. ML16350A346). Based on the results of the periodic review, the staff concluded that there were no technical issues for staff to address related to the periodic review of RG 1.156, Revision 1, and no changes to RG 1.156, Revision 1, were warranted.

The NRC published a notice of availability of DG-1400 in the Federal Register on April 11, 2022 (87 FR 21221) for a 30-day public comment period. The public comment period ended May 11, 2022. Public comments and staff responses to those comments are available in ADAMS under Accession No. ML22224A053.

As noted in the Federal Register on December 9, 2022 (87 FR 75671), this document is being published in the “Rules” section of the Federal Register to comply with publication requirements under 1 CFR chapter I.

This RG is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.

The issuance of this regulatory guide does not constitute backfitting as defined in section 50.109 of title 10 of the Code of Federal Regulations (10 CFR), “Backfitting,” and as described in NRC Management Directive 8.4, “Management of Backfitting, Forward Fitting, Issue Finality, and Information Requests,” or affect issue finality of any approval issued under 10 CFR part 52, “Licenses, Certificates, and Approvals for Nuclear Power Plants,” because, as explained in this regulatory guide, licensees are not required to comply with the positions set forth in this regulatory guide.

A member of the public may, at any time, submit suggestions to the NRC for improvement of existing RGs or for the development of new RGs. Suggestions can be submitted on the NRC's public website at https://www.nrc.gov/reading-rm/doc-collections/reg-guides/contactus.html. Suggestions will be considered in future updates and enhancements to the “Regulatory Guide” series.

Please refer to Docket ID NRC-2022-0109 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:

• Federal Rulemaking website: Go to https://www.regulations.gov and search for Docket ID NRC-2022-0109. Address questions about NRC dockets to Dawn Forder, telephone: 301-415-3407, email: Dawn.Forder@nrc.gov. For technical questions contact the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to pdr.resource@nrc.gov. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the “Availability of Documents” section.

• NRC's PDR: You may examine and purchase copies of public documents, by appointment, at the NRC's PDR, Room P1 B35, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. To make an appointment to visit the PDR, please send an email to PDR.Resource@nrc.gov or call 1-800-397-4209 or 301-415-4737, between 8:00 a.m. and 4:00 p.m. eastern time (ET), Monday through Friday, except Federal holidays.

Please include Docket ID NRC-2022-0109 in your comment submission. The NRC requests that you submit comments through the Federal rulemaking website at https://www.regulations.gov. If your material cannot be submitted using https://www.regulations.gov, call or email the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

This rule involves the renewal of Certificate of Compliance No. 1014, which includes the initial certificate and Amendment Nos. 1 through 15. As described in the Statement of Considerations to the final rule “License and Certificate of Compliance Terms” (76 FR 8872; February 16, 2011), a renewal reaffirms the original design basis, perhaps with some modifications, but does not involve reevaluating the original design basis in accordance with current review standards, which may be different from the standards in place when the cask design was initially certified. The NRC is using the “direct final rule procedure” to issue this renewal because it represents a limited and routine change to an existing certificate of compliance that is expected to be non-controversial. Adequate protection of public health and safety continues to be reasonably assured. The amendment to the rule will become effective on May 1, 2023. However, if the NRC receives any significant adverse comment on this direct final rule by March 15, 2023, then the NRC will publish a document that withdraws this action and will subsequently address the comments received in a final rule as a response to the companion proposed rule published in the Proposed Rules section of this issue of the Federal Register or as otherwise appropriate. In general, absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC to make a change (other than editorial) to the rule, certificate of compliance, or technical specifications.

Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended, states that “[t]he Secretary [of the Department of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the Nuclear Waste Policy Act states, in part, that “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 219(a) [sic: 218(a)] for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the Commission approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule that added a new subpart K in part 72 of title 10 of the Code of Federal Regulations (10 CFR) entitled “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181, July 18, 1990). This rule also established a new subpart L in 10 CFR part 72 entitled “Approval of Spent Fuel Storage Casks,” which contains procedures and criteria for obtaining NRC approval of spent fuel storage cask designs and for the renewal of the cask design approval. The NRC subsequently issued a final rule on May 1, 2000 (65 FR 25241) that approved the HI-STORM 100 Cask System design and added it to the list of NRC-approved cask designs in § 72.214 as Certificate of Compliance No. 1014. On August 28, 2007 (72 FR 49561), the NRC amended the scope of the general licenses issued under 10 CFR 72.210 to include the storage of spent fuel in an independent spent fuel storage installation (ISFSI) at power reactor sites to persons authorized to possess or operate nuclear power reactors under 10 CFR part 52. On February 16, 2011 (76 FR 8872), the NRC amended subparts K and L in 10 CFR part 72, to extend and clarify the term limits for certificates of compliance and revised the conditions for spent fuel storage casks renewals, including adding requirements for the safety analysis report to include time-limited aging analyses and a description of aging management programs. The NRC also clarified the terminology used in the regulations to use “renewal” rather than “reapproval” to better reflect that extending the term of a currently approved cask design is based on the cask design standards in effect at the time the certificate of compliance was approved rather than current standards.

The term certified by the initial Certificate of Compliance No. 1014 was 20 years. The period of extended operation for each cask begins 20 years after the cask is first used by the general licensee to store spent fuel. On January 31, 2020, as supplemented on October 16, 2020, October 29, 2020, April 19, 2021, and April 23, 2021, Holtec International submitted a request to renew Certificate of Compliance No. 1014 for the HI-STORM 100 Cask System design for an additional 40 years beyond the initial certificate term (ADAMS Accession Nos. ML20049A081, ML20290A819, ML20303A254, ML21109A367, and ML21113A201).

The HI-STORM 100 Cask System design consists of (1) interchangeable multi-purpose canisters (MPCs), which contain the fuel, (2) a storage overpack (HI-STORM), which contains the MPC during storage, and (3) a transfer cask (HI-TRAC), which contains the MPC during loading, unloading, and transfer operations. The MPC is a welded, cylindrical canister with a fuel basket, a baseplate, a lid, a closure ring, and the canister shell. This cask system design has twelve types of MPCs.

The HI-STORM 100 dry storage system includes an aboveground system and an underground system. For the aboveground systems, the HI-STORM 100 or HI-STORM 100S storage overpack provides shielding and structural protection of the MPC during storage. The HI-STORM 100S is a variation of the HI-STORM 100 overpack design that includes a modified lid that incorporates the air outlet ducts, allowing the overpack body to be shortened. The HI-STORM 100A and HI-STORM 100SA are variants of the HI-STORM 100 overpack and are outfitted with an extended baseplate and gussets to enable the overpack to be anchored to the concrete storage pad in high seismic applications. The HI-STORM 100U system is an underground storage system within the HI-STORM 100 Cask System. The HI-STORM 100U storage vertical ventilated module uses an air-cooled vault or caisson storage design.

The Nuclear Energy Institute's (NEI) document NEI 14-03, Revision 2, “Format, Content and Implementation Guidance for Dry Cask Storage Operations-Based Aging Management,” (2016) (ADAMS Accession No. ML16356A210) provides an operations-based, learning approach to aging management for the storage of spent fuel, which builds on the lessons learned from industry's experience with aging management for reactors. The NRC endorsed NEI 14-03, Revision 2, with clarifications, in Regulatory Guide 3.76, Revision 0, “Implementation of Aging Management Requirements for Spent Fuel Storage Renewals,” issued July 2021 (ADAMS Accession No. ML21098A022). Specifically, NEI 14-03 provides a framework for sharing operating experience through an industry-developed database called the ISFSI Aging Management Institute of Nuclear Power Operations Database. NEI 14-03 also includes a framework for learning aging management programs using aging management “tollgates,” which offer a structured approach for periodically assessing operating experience and data from applicable research and industry initiatives at specific times during the period of extended operation and performing a safety assessment that confirms the safe storage of the spent nuclear fuel by ensuring the aging management programs continue to effectively manage the identified aging effects. The ISFSI Aging Management Institute of Nuclear Power Operations Database provides operating experience information and a basis to support licensees' future changes to the aging management programs. The ISFSI Aging Management Institute of Nuclear Power Operations Database and the aging management tollgates are considered key elements in ensuring the effectiveness of aging management activities and the continued safe storage of spent fuel during the period of extended operation.

Holtec International incorporated periodic tollgate assessments as requirements in the renewed certificate of compliance, as recommended in NEI 14-03, Revision 2. The implementation of tollgate assessments provides reasonable assurance that the aging management programs for the MPC, overpack, transfer cask, high burnup fuel assembly components (if applicable), and the 100U concrete (if applicable) will continue to effectively manage aging effects during the period of extended operation.

The renewal of the initial certificate and Amendment Nos. 1 through 15 was conducted in accordance with the renewal provisions in § 72.240. The NRC's regulations require the safety analysis report for the renewal to include time-limited aging analyses that demonstrate that structures, systems, and components important to safety will continue to perform their intended function for the requested period of extended operation and a description of the aging management programs for the management of issues associated with aging that could adversely affect structures, systems, and components important to safety. This section of the NRC spent fuel storage regulations authorizes the NRC to revise the certificate of compliance to include any additional terms, conditions, and specifications it deems necessary to ensure the safe operation of the cask during the certificate of compliance's renewal term. Here, the NRC is adding three new conditions to the renewal of the certificate of compliance, which will ensure the safe operation of the cask during the certificate of compliance's renewal term and will allow the use of the HI-STORM 100 during the approved period of extended operation. The NRC is amending the condition that describes the authorization for use of the Holtec International HI-STORM 100 Cask System design under the general license.

The three new conditions added to the renewal of the initial certificate of compliance and Amendment Nos. 1 through 15 are:

• A condition requiring the certificate of compliance holder to submit an updated final safety analysis report within 90 days after the effective date of the renewal. The updated final safety analysis report must reflect the changes resulting from the review and approval of the renewal of the certificate of compliance, including the HI-STORM 100 final safety analysis report supplement, as documented in Appendix D of the HI-STORM 100 certificate of compliance renewal application, Revision 1, dated April 23, 2021 (ADAMS Accession No. ML21113A203). This condition ensures that final safety analysis report changes are made in a timely fashion to enable general licensees using the storage system during the period of extended operation to develop and implement necessary procedures related to renewal and aging management activities. The certificate of compliance holder is required to continue to update the final safety analysis report pursuant to the requirements of § 72.248.

• A condition requiring each general licensee using the HI-STORM 100 Cask System design to include, in the evaluations required by § 72.212(b)(5), evaluations related to the terms, conditions, and specifications of this certificate of compliance amendment as modified ( i.e., changed or added) as a result of the renewal of the certificate of compliance and include, in the document review required by § 72.212(b)(6), a review of the final safety analysis report changes resulting from the renewal of the certificate of compliance and the NRC Safety Evaluation Report for the renewal of the certificate of compliance. The general licensee would also be required to ensure that the evaluations required by § 72.212(b)(7) in response to these changes are conducted and the determination required by § 72.212(b)(8) is made. This condition also makes it clear that to meet the requirements in § 72.212(b)(11), general licensees that currently use a HI-STORM 100 Cask System will need to update their § 72.212 reports, even if they do not put additional Holtec International HI-STORM 100 Cask Systems into service after the renewal's effective date. These evaluations, reviews, and determinations are to be completed before the dry storage system enters the period of extended operation (which begins 20 years after the first use of the Holtec International HI-STORM 100 Cask System) or no later than 365 days after the effective date of this rule, whichever is later. This will provide general licensees a minimum of 365 days to comply with the new terms, conditions, specifications, and other changes to the certificate of compliance and to make the necessary determinations required by § 72.212(b)(8) as to whether activities related to the storage of spent nuclear fuel using the renewed certificate of compliance involve a change in the facility Technical Specifications or requires a license amendment for the facility.

• A condition requiring all future amendments and revisions to the certificate of compliance ( i.e., the initial certificate 1014 and Amendment Nos. 1 through 15) include evaluations of the impacts to aging management activities ( i.e., time-limited aging analyses and aging management programs) to ensure they remain adequate for any changes to structures, systems, and components important to safety within the scope of renewal. This condition ensures that future amendments to the certificate of compliance address the renewed design bases for the certificate of compliance, including aging management impacts that may arise from the changes to the system in proposed future amendments.

Additionally, the condition for the initial certificate and Amendment Nos. 1 through 15 would be amended to reflect changes to the scope of the general license granted by § 72.210 that were made after the approval of the initial certificate. The authorization is amended to allow persons authorized to possess or operate a nuclear power reactor under 10 CFR part 52 to use the HI-STORM 100 Cask Design under the general license issued under § 72.210.

The NRC made one corresponding change from the technical specifications for the initial certificate of compliance and Amendment Nos. 1 through 15 by adding a section addressing the aging management program. General licensees using the HI-STORM Cask System design during the period of extended operation will need to establish, implement, and maintain written procedures for each applicable aging management program in the final safety analysis report to use the HI-STORM 100 Cask System design during the approved period of extended operation. The procedures will need to include provisions for changing aging management program elements, as necessary, and within the limitations of the approved design bases to address new information on aging effects based on inspection findings and/or industry operating experience. General licensees will also be required to perform tollgate assessments as described in Chapter 9 of the final safety analysis report.

General licensees will need to establish and implement these written procedures prior to entering the period of extended operation (which begins 20 years after the first use of the cask system) or no later than 365 days after the effective date of this rule, whichever is later. The general licensee is required to maintain these written procedures for as long as the general licensee continues to operate HI-STORM 100 Cask Systems in service for longer than 20 years.

Under § 72.240(d), the design of a spent fuel storage cask will be renewed if (1) the quality assurance requirements in 10 CFR part 72, subpart G, “Quality Assurance,” are met, (2) the requirements of 10 CFR 72.236(a) through (i) are met, and (3) the application includes a demonstration that the storage of spent fuel has not, in a significant manner, adversely affected the structures, systems, and components important to safety. Additionally, § 72.240(c) requires that the safety analysis report accompanying the application contain time-limited aging analyses that demonstrate that the structures, systems, and components important to safety will continue to perform their intended function for the requested period of extended operation and a description of the aging management program for management of aging issues that could adversely affect structures, systems, and components important to safety.

As documented in the preliminary safety evaluation report, the NRC reviewed the application for the renewal of the certificate of compliance and the conditions in the certificate of compliance and determined that the conditions in subpart G, § 72.236(a) through (i), and § 72.238 have been met and the application includes a demonstration that the storage of spent nuclear fuel has not, in a significant manner, adversely affected structures, systems, and components important to safety. The NRC's safety review determined that the HI-STORM 100, with the added terms, conditions, and specifications in the certificate of compliance and the technical specifications, will continue to meet the requirements of 10 CFR part 72 for an additional 40 years beyond the initial certificate term. Consistent with § 72.240, the NRC is renewing the Holtec International HI-STORM 100 initial certificate 1014 and Amendment Nos. 1 through 15.

Extending the expiration date of the approval for the initial certificate and Amendment Nos. 1 through 15 for 40 years and requiring the implementation of aging management activities during the period of extended operation does not impose any modification or addition to the design of a cask system's structures, systems, and components important to safety, or to the procedures or organization required to operate the system during the initial 20-year storage term certified by the cask's initial certificate of compliance. General licensees who have loaded these casks, or who load these casks in the future under the specifications of the applicable renewed certificate of compliance, may store spent fuel in these cask system designs for 20 years without implementing the aging management program. For any casks that have been in use for more than 20 years, the general licensee will have 365 days to complete the analyses required to use the cask system design pursuant to the terms and conditions in the renewed certificate of compliance. As explained in the 2011 final rule that amended 10 CFR part 72 (76 FR 8872), the general licensee's authority to use a particular storage cask design under an approved certificate of compliance will be for at least the term certified by the cask's certificate of compliance. For casks placed into service before the expiration date of the initial certificate, the general licensee's authority to use the cask would be extended for an additional 40 years from the date the initial certificate expired. For casks placed into service after the expiration date of the initial certificate and before the effective date of this rule, the general licensee's authority to use the cask would last the length of the term certified by the cask's certificate of compliance ( i.e., 40 years after the cask is placed into service). For casks placed into service after this rule becomes effective, the general licensee's authority to use the cask would expire 40 years after the cask is first placed into service.

This direct final rule revises the HI-STORM 100 Cask System design listing in § 72.214 by renewing, for 40 more years, the initial certificate and Amendment Nos. 1 through 15 of Certificate of Compliance No. 1014. The renewed certificate of compliance includes the changes to the certificate of compliance and technical specifications previously described. The renewed certificate of compliance includes the terms, conditions, and specifications that will ensure the safe operation of the cask during the renewal term and the added conditions that will require the implementation of an aging management program. The preliminary safety evaluation report describes the new and revised conditions in the certificate of compliance, the changes to the technical specifications, and the NRC staff evaluation.

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC revises the Holtec International HI-STORM 100 Cask System design listed in § 72.214, “List of approved spent fuel storage casks.” This action does not constitute the establishment of a standard that contains generally applicable requirements.

Under the “Agreement State Program Policy Statement” approved by the Commission on October 2, 2017, and published in the Federal Register on October 18, 2017 (82 FR 48535), this rule is classified as Compatibility Category NRC—Areas of Exclusive NRC Regulatory Authority. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended, or the provisions of 10 CFR chapter I. Therefore, compatibility is not required for program elements in this category.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31885).

Under the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” the NRC has determined that this direct final rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The NRC has made a finding of no significant impact based on this environmental assessment.

The proposed action is to amend § 72.214 to revise the Holtec International HI-STORM 100 Cask System listing within the “List of approved spent fuel storage casks” to renew, for an additional 40 years, the initial certificate and Amendment Nos. 1 through 15 of Certificate of Compliance No. 1014.

This direct final rule renews the certificate of compliance for the Holtec International HI-STORM 100 Cask System design within the list of approved spent fuel storage casks to allow power reactor licensees to store spent fuel at reactor sites in casks with the approved modifications under the general license provisions in 10 CFR part 72. Specifically, this rule extends the expiration date for the Holtec International HI-STORM 100 Cask System certificate of compliance for an additional 40 years, allowing a power reactor licensee to continue using the cask design during a period of extended operation for a term certified by the cask's renewed certificate of compliance.

This direct final rule would add conditions to the certificate of compliance and technical specifications necessary to have confidence that the structures, systems, and components important to safety will continue to perform their intended functions during the requested period of extended operation and that the design of the cask would continue to maintain confinement, shielding, and criticality control in the event of an accident during the period of extended operation. These conditions are needed to provide reasonable assurance that adequate protection of public health and safety will continue during the period of extended operation.

The three new conditions added to the renewal of the initial certificate of compliance and Amendment Nos. 1 through 15 are:

• A condition requiring the certificate of compliance holder to submit an updated final safety analysis report within 90 days after the effective date of the renewal and to make continued updates to the final safety analysis report pursuant to the requirements of § 72.248.

• A condition requiring each general licensee using the HI-STORM 100 Cask System design to include, in the evaluations required by § 72.212(b)(5), evaluations related to the terms, conditions, and specifications of this certificate of compliance amendment as modified ( i.e., changed or added) as a result of the renewal of the certificate of compliance and include, in the document review required by § 72.212(b)(6), a review of the final safety analysis report changes resulting from the renewal of the certificate of compliance and the NRC Safety Evaluation Report for the renewal of the certificate of compliance. The general licensee would also be required to ensure that the evaluations required by § 72.212(b)(7) in response to these changes are conducted and the determination required by § 72.212(b)(8) is made.

• A condition requiring all future amendments and revisions to the certificate of compliance to include evaluations of the impacts to aging management activities ( i.e., time-limited aging analyses and aging management programs) to ensure they remain adequate for any changes to structures, systems, and components important to safety within the scope of renewal.

The authority statement for the initial certificate and Amendments Nos. 1 through 15 would be revised to be consistent with the scope of the general license issued by § 72.210.

This renewal requires general licensees to conduct evaluations to implement aging management programs to manage issues associated with aging that could adversely affect structures, systems, and components important to safety to continue using the Holtec International HI-STORM 100 Cask System design during the period of extended operation for a term certified by the cask's renewed certificate of compliance.

On July 18,1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent fuel under a general license in cask designs approved by the NRC. The potential environmental impacts of using NRC-approved storage casks were analyzed in the environmental assessment for the 1990 final rule and are described in “Environmental Assessment for Proposed Rule Entitled, `Storage of Spent Nuclear Fuel in NRC-Approved Storage Casks at Nuclear Power Reactor Sites.' ” The potential environmental impacts related to the underground configuration for the Holtec HI-STORM 100U system were analyzed in the 2009 environmental assessment, “Environmental Assessment for the Holtec International HI-STORM 100U Underground Cask System.” The potential environmental impacts for the longer-term use of dry cask designs and the renewal of certificates of compliance were analyzed in the environmental assessment for the 2011 final rule establishing the regulatory requirements for renewing certificates of compliance and are described in “Environmental Assessment and Finding of No Significant Impact for the Final Rule Amending 10 CFR part 72 License and Certificate of Compliance Terms” (ML100710441). The environmental impacts from continued storage were also considered in NUREG-2157, “Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel.” The environmental assessment for this renewal of the initial certificate and Amendment Nos. 1 through 15 tiers off of the environmental assessment for the February 16, 2011, final rule and NUREG-2157. Tiering from past environmental assessments is a standard process under the National Environmental Policy Act of 1969, as amended.

The Holtec International HI-STORM 100 Cask System design is designed to mitigate the effects of design basis accidents that could occur during storage. Design basis accidents account for human-induced events and the most severe natural phenomena reported for the site and surrounding area. Postulated accidents analyzed for an independent spent fuel storage installation, the type of facility at which a holder of a power reactor operating license would store spent fuel in casks in accordance with 10 CFR part 72, can include tornado winds and tornado-generated missiles, a design basis earthquake, a design basis flood, an accidental cask drop, lightning effects, fire, explosions, and other incidents.

A renewal reaffirms the original design basis, perhaps with some modifications. The renewal allows the cask to be used during a period of extended operation that corresponds to the term certified by the cask's certificate of compliance in the renewal. As a condition of the renewal, the NRC requires an aging management program that will ensure that structures, systems, and components important to safety will perform as designers intended during the renewal period. The renewal does not reflect a change in design or fabrication of the cask system. Because the aging management program will ensure the structures, systems, and components important to safety for the cask will perform as designed for the renewal period, any resulting occupational exposure or offsite dose rates from the renewal of the initial certificate and Amendment Nos. 1 through 15 would remain well within the 10 CFR part 20 limits. The NRC has also determined that the design of the cask system would continue to maintain confinement, shielding, and criticality control in the event of an accident. The NRC determined that the structures, systems, and components important to safety will continue to perform their intended functions during the requested period of extended operation. The NRC determined that the renewed Holtec International HI-STORM 100 Cask System design, when used under the conditions specified in the renewed certificate of compliance, the technical specifications, and the NRC's regulations, will meet the requirements of 10 CFR part 72; therefore, adequate protection of public health and safety will continue to be reasonably assured. The NRC documented its safety findings in the preliminary safety evaluation report.

The alternative to this action is to deny renewing the Holtec International HI-STORM 100 Cask System design and to not issue the direct final rule. Consequently, any 10 CFR part 72 general licensee that seeks to load spent nuclear fuel into the Holtec International HI-STORM 100 Cask System design after the expiration date of the certificate of compliance or that seeks to continue storing spent nuclear fuel in the Holtec International HI-STORM 100 Cask System design for longer than the term certified by the cask's certificate of compliance for the initial certificate ( i.e., more than 20 years) would have to request an exemption from the requirements of §§ 72.212 and 72.214 or would have to load the spent nuclear fuel into a different approved cask design. Under this alternative, those licensees interested in continuing to use the HI-STORM 100 Cask System design would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee. If the general licensee is granted an exemption, the environmental impacts would be the same as the proposed action. If the general licensee is not granted an exemption, the general licensee would need to unload the Holtec International HI-STORM 100 cask system and load the fuel into another cask system design, which would result in environmental impacts that are greater than for the proposed action because activities associated with cask loading and decontamination may result in some small liquid and gaseous effluent.

Renewal of the initial certificate and Amendment Nos. 1 through 15 to Certificate of Compliance No. 1014 would result in no irreversible commitment of resources.

No agencies or persons outside the NRC were contacted in connection with the preparation of this environmental assessment.

The proposed action is to amend § 72.214 to revise the Holtec International HI-STORM 100 Cask System listing within the “List of approved spent fuel storage casks” to renew, for an additional 40 years, the initial certificate and Amendment Nos. 1 through 15 of Certificate of Compliance No. 1014. The environmental impacts of the action have been reviewed under the requirements in the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in subpart A of 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” and are described in the preceding environmental assessment in Section VIII of this notice.

The renewal does not reflect a change in design or fabrication of the cask system as approved for the initial certificate or Amendment Nos. 1 through 15. The NRC determined that the renewed Holtec International HI-STORM 100 Cask System design, when used under the conditions specified in the renewed certificate of compliance, the technical specifications, and the NRC's regulations, will meet the requirements of 10 CFR part 72; therefore, adequate protection of public health and safety will continue to be reasonably assured.

Based on the foregoing environmental assessment, the NRC concludes that this direct final rule, “List of Approved Spent Fuel Storage Casks: Holtec International HI-STORM 100 Cask System, Certificate of Compliance No. 1014, Renewal of the initial certificate and Amendment Nos. 1 through 15,” will not have a significant effect on the quality of the human environment. Therefore, the NRC has determined that an environmental impact statement is not necessary for this direct final rule and the Commission has determined not to prepare an environmental impact statement for the proposed action.

The final finding of no significant impact and the other related environmental documents, including NUREG-2157, the “Environmental Assessment and Finding of No Significant Impact for the Final Rule Amending 10 CFR part 72 License and Certificate of Compliance Terms” (2010), and the “Environmental Assessment for the Holtec International HI-STORM 100U Underground Cask System” (2009) are available for public inspection through the NRC public website using ADAMS as described in Section I, “Obtaining Information and Submitting Comments.”

This direct final rule does not contain any new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing collections of information were approved by the Office of Management and Budget, approval number 3150-0132.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid Office of Management and Budget control number.

Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this direct final rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only nuclear power plant licensees and Holtec International. Holtec International is a diversified energy technology company that engages in manufacturing, has more than 500 employees, and does not qualify as a small entity based on the Regulatory Flexibility Act or the NRC size standards at 10 CFR 2.810. Similarly, none of the existing nuclear power plants storing spent nuclear fuel qualify as small entities under the Regulatory Flexibility Act or NRC size standards. Therefore, neither the current licensees affected by this rule, nor Holtec International, fall within the scope of the definition of small entities set forth in the Regulatory Flexibility Act or the size standards established by the NRC. Thus, pursuant to its delegated authority, the Executive Director for Operations certifies under section 605 of the Regulatory Flexibility Act “that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.”

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs under a general license to store spent nuclear fuel if (1) it notifies the NRC in advance; (2) the spent fuel is stored under the conditions specified in the cask's certificate of compliance; and (3) the conditions of the general license are met. A list of NRC-approved cask designs is contained in § 72.214. On May 1, 2000 (65 FR 25241), the NRC issued an amendment to 10 CFR part 72 that approved the Holtec International HI-STORM 100 Cask System design by adding it to the list of NRC-approved cask designs in § 72.214.

On January 31, 2020, as supplemented on October 16, 2020, October 29, 2020, April 19, 2021, and April 23, 2021, Holtec International submitted a request to renew Certificate of Compliance No. 1014 for the HI-STORM 100 Cask System design for an additional 40 years beyond the initial certificate term (ADAMS Accession Nos. ML20049A081, ML20290A819, ML20303A254, ML21109A367, and ML21113A201) as described in Section IV, “Discussion of Changes,” of this document.

The alternative to this action is to withhold approval of the renewal of the initial certificate and Amendments Nos. 1 through 15 and to require any 10 CFR part 72 general licensee seeking to continue the storage of spent nuclear fuel in the Holtec International HI-STORM 100 Cask System design using the initial certificate (Amendment No. 0) or Amendments No. 1 through 15 beyond the initial 20-year storage term certified by the cask's initial certificate of compliance to request an exemption from the requirements of §§ 72.212 and 72.214. The term for general licenses would not be extended from 20 years to 40 years. Under this alternative, each interested 10 CFR part 72 licensee would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee.

Approval of this direct final rule is consistent with previous NRC actions. Further, as documented in the preliminary safety evaluation report and environmental assessment, this direct final rule will have no adverse effect on public health and safety or the environment. This direct final rule has no significant identifiable impact or benefit on other government agencies. Based on this regulatory analysis, the NRC concludes that the requirements of this direct final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory; therefore, this action is recommended.

The NRC has determined that the actions in this direct final rule do not require a backfit analysis because they do not fall within the definition of backfitting under § 72.62 or § 50.109(a)(1), they do not impact the issue finality provisions applicable to combined licenses under 10 CFR part 52, and they do not impact general licensees that are using these systems for the duration of their current general licenses.

Certificate of Compliance No. 1014 for the Holtec International HI-STORM 100 Cask System design, as currently listed in § 72.214, “List of Approved Spent Fuel Storage Casks,” was initially approved for a 20-year term. This direct final rule would renew the initial certificate and Amendment Nos. 1 through 15, extending their approval period by 40 years. The term certified by the cask's certificate of compliance for a renewed certificate of compliance is the period of time commencing with the most recent certificate of compliance renewal date and ending with the certificate of compliance expiration date. With this renewal, the term certified by the cask's certificate of compliance would change from 20 years to 40 years, with the period of extended operation beginning 20 years after the cask is placed into service. The revision to the certificate of compliance through the renewal consists of the changes in the renewed initial certificate (Amendment No. 0) and renewed Amendment Nos. 1 through 15 as previously described, and as set forth in the renewed certificates of compliance and technical specifications. These changes would not affect the use of the Holtec International HI-STORM 100 Cask System design for the initial 20- year term for previously loaded casks. The renewed certificates would require implementation of aging management programs during the period of extended operation, which begins after the storage cask system's initial 20-year service period.

Because the term for the renewal would be longer than the initial term certified by the cask's certificate of compliance, the general licensee's authority to use the cask would be extended and would be no less than 40 years. This change would not add, eliminate, or modify (1) structures, systems, or components of an independent spent fuel storage installation or a monitored retrievable storage installation or (2) the procedures or organization required to operate an independent spent fuel storage installation or a monitored retrievable storage installation.

Renewing these certificates does not fall within the definition of backfit under § 72.62 or § 50.109, or otherwise represent an inconsistency with the issue finality provisions applicable to combined licenses in 10 CFR part 52. General licensees who have loaded these casks, or who load these casks in the future under the specifications of the applicable certificate, may continue to store spent fuel in these systems for the initial 20-year storage period authorized by the original certificate. Extending the certificates' expiration dates for 40 more years and requiring the implementation of aging management programs does not impose any modification or addition to the design of the structures, systems, and components important to safety of a cask system, or to the procedures or organization required to operate the system during this initial 20-year term certified by the cask's certificate of compliance. The aging management programs required to be implemented by this renewal are only required to be implemented after the storage cask system's initial 20-year service period ends.

Because this rulemaking renews the certificates, and because renewal is a separate NRC licensing action voluntarily implemented by vendors or licensees, the renewal of these certificates is not an imposition of new or changed requirements from which these certificate of compliance holders or licensees would otherwise be protected by the backfitting provisions in § 72.62 or § 50.109. Even if renewal of this certificate of compliance cask system design could be considered a backfit, Holtec International, as the certificate of compliance holder and vendor of the casks, is not protected by the backfitting provisions in § 72.62 in this capacity.

Holtec International is also a general licensee using the HI-STORM 100 Cask System design under a general license. General licensees, including Holtec International, using the existing systems subject to these renewals would be protected by the backfitting provisions in § 72.62 and § 50.109 if the renewals constituted new or changed requirements. But as previously explained, renewal of the certificates for these systems does not impose such requirements. The general licensees using these certificates of compliance may continue storing material in the Holtec International HI-STORM 100 Cask System design for the initial 20-year storage period identified in the applicable certificate or amendment with no changes. If general licensees choose to continue to store spent fuel in the Holtec International HI-STORM 100 Cask System design after the initial 20-year period, these general licensees will be required to implement the applicable aging management programs for any cask systems subject to a renewed certificate of compliance, but such continued use is voluntary.

Additionally, the actions in this direct final rule do not impact issue finality provisions applicable to combined licenses under 10 CFR part 52. Currently, there are no Holtec International HI-STORM 100 casks used at an independent fuel storage installation associated with a nuclear power reactor licensed pursuant to 10 CFR part 52 under the general license granted by § 72.210.

For these reasons, renewing the initial certificate and Amendment Nos. 1 through 15 of Certificate of Compliance No. 1014 does not constitute backfitting under § 72.62 or § 50.109(a)(1), or otherwise represent an inconsistency with the issue finality provisions applicable to combined licenses in 10 CFR part 52. Accordingly, the NRC has not prepared a backfit analysis for this rulemaking.

This direct final rule is not a rule as defined in the Congressional Review Act.

The documents identified in the following table are available to interested persons as indicated.

The NRC may post materials related to this document, including public comments, on the Federal rulemaking website at https://www.regulations.gov under Docket ID NRC-2022-0109.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Nuclear Waste Policy Act of 1982, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting the following amendments to 10 CFR part 72:

The NRC is issuing a revision to an existing guide in the NRC's “Regulatory Guide” series. This series was developed to describe methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, to explain techniques that the staff uses in evaluating specific issues or postulated events, and to describe information that the staff needs in its review of applications for permits and licenses.

RG 5.71, Revision 1 is entitled “Cyber Security Programs for Nuclear Power Reactors.” It provides NRC licensees with guidance on meeting the cyber security requirements described in section 73.54 of title 10 of the Code of Federal Regulations (10 CFR), “Protection of digital computer and communication systems and networks.”

Revision 1 clarifies guidance on defense-in-depth for cyber security and updates guidance based on the latest NIST and IAEA cyber security guidance. Revision 1 also clarifies issues identified from cyber security inspections, insights gained through the SFAQ process, lessons learned from international and domestic cyber security attacks, new technologies, and new regulations.

The proposed Revision 1 to RG 5.71 was issued with a temporary identification Draft Regulatory Guide (DG) 5061.

The NRC published a notice of availability of DG-5061 (ADAMS Accession No. ML18016A129) in the Federal Register on August 23, 2018 (83 FR 42623) for a 60-day public comment period. The public comment period closed on October 22, 2018. Public comments received on DG-5061 and the staff responses are available in ADAMS under Accession No. ML21266A132.

In order to incorporate updates in industry documents, DG-5061 was re-issued in the Federal Register on March 3, 2022 (87 FR 12208) for a 60-day public comment period. The public comment period closed on May 2, 2022. Public comments received on DG-5061 and the staff responses are available in ADAMS under Accession No. ML22258A200.

As noted in the Federal Register on December 9, 2022 (87 FR 75671), this document is being published in the “Rules” section of the Federal Register to comply with publication requirements under 1 CFR chapter I.

This RG is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.

RG 5.71 describes methods acceptable to the NRC staff for complying with the NRC's regulations to meet the regulatory requirements in 10 CFR 73.54. Issuance of this RG, would not constitute backfitting as defined in 10 CFR 50.109, “Backfitting,” and as described in NRC Management Directive (MD) 8.4, “Management of Backfitting, Forward Fitting, Issue Finality, and Information Requests,” constitute forward fitting as that term is defined and described in MD 8.4; or affect the issue finality of any approval issued under 10 CFR part 52, “Licenses, certifications, and approvals for nuclear power plants.”

A member of the public may, at any time, submit suggestions to the NRC for improvement of existing RGs or for the development of new RGs. Suggestions can be submitted on the NRC's public website at https://www.nrc.gov/reading-rm/doc-collections/reg-guides/contactus.html. Suggestions will be considered in future updates and enhancements to the “Regulatory Guide” series.

The Energy Policy and Conservation Act, Public Law 94-163, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B of EPCA  2 established the Energy Conservation Program for Consumer Products Other Than Automobiles. (42 U.S.C. 6291-6309) These products include GSFLs, the subject of this final determination. (42 U.S.C. 6292(a)(14)), 42 U.S.C. 6295(i)(3)-(5))

DOE is issuing this final determination pursuant to the EPCA requirement that not later than 6 years after issuance of any final rule establishing or amending a standard, DOE must publish either a notification of determination that standards for the product do not need to be amended, or a notice of proposed rulemaking (NOPR) including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m))

For this final determination, DOE analyzed GSFLs subject to standards specified in the Code of Federal Regulations (CFR) at 10 CFR 430.32(n)(1)-(3).

DOE first analyzed the technological feasibility of more energy efficient GSFLs. For those GSFLs for which DOE determined higher standards to be technologically feasible, DOE estimated energy savings that would result from potential energy conservation standards by conducting a national impacts analysis (NIA). DOE evaluated whether higher standards would be cost effective by estimating the net present value (NPV) of the total costs and benefits experienced by consumers.

Based on the results of the analyses, summarized in section V of this document, DOE determined that current standards for GSFLs do not need to be amended.

The following section briefly discusses the statutory authority underlying this final determination, as well as some of the historical background relevant to the establishment of standards for GSFLs.

EPCA authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part B of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles. These products include GSFLs, the subject of this document. (42 U.S.C. 6292(a)(14)) EPCA prescribed energy conservation standards for these products (42 U.S.C. 6295(i)(1)(B)), and directs DOE to conduct future rulemakings to determine whether to amend these standards. (42 U.S.C. 6295(i)(3)-(5))

The energy conservation program under EPCA consists essentially of four parts: (1) testing, (2) labeling, (3) the establishment of Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).

Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered product. (42 U.S.C. 6295(o)(3)(A) and 42 U.S.C. 6295(r)) Manufacturers of covered products must use the prescribed DOE test procedure as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA and when making representations to the public regarding the energy use or efficiency of those products. (42 U.S.C. 6293(c) and 42 U.S.C. 6295(s)) Similarly, DOE must use these test procedures to determine whether the products comply with standards adopted pursuant to EPCA. (42 U.S.C. 6295(s)) The DOE test procedures for GSFLs appear at 10 CFR part 430, subpart B, appendix R.

Federal energy conservation requirements generally supersede State laws or regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions set forth under EPCA. ( See 42 U.S.C. 6297(d))

Pursuant to the amendments contained in the Energy Independence and Security Act of 2007 (“EISA 2007”), Public Law 110-140, any final rule for new or amended energy conservation standards promulgated after July 1, 2010, is required to address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) Specifically, when DOE adopts a standard for a covered product after that date, it must, if justified by the criteria for adoption of standards under EPCA (42 U.S.C. 6295(o)), incorporate standby mode and off mode energy use into a single standard, or, if that is not feasible, adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)(A)-(B)) In this analysis, DOE considers such energy use in its determination of whether energy conservation standards need to be amended. DOE has determined that standby mode and off mode do not apply to GSFLs and that their energy use is accounted for entirely in the active mode. Therefore, DOE is not addressing standby and off modes, and will only address active mode in this final determination.

DOE must periodically review its already established energy conservation standards for a covered product no later than 6 years from the issuance of a final rule establishing or amending a standard for a covered product. (42 U.S.C. 6295(m)) This 6-year look-back provision requires that DOE publish either a determination that standards do not need to be amended or a NOPR, including new proposed standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(1)) EPCA further provides that, not later than 3 years after the issuance of a final determination not to amend standards, DOE must publish either a notification of determination that standards for the product do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(3)(B)) DOE must make the analysis on which a determination is based publicly available and provide an opportunity for written comment. (42 U.S.C. 6295(m)(2))

A determination that amended standards are not needed must be based on consideration of whether amended standards will result in significant conservation of energy, are technologically feasible, and are cost effective. (42 U.S.C. 6295(m)(1)(A) and (n)(2)) Additionally, any new or amended energy conservation standard prescribed by the Secretary for any type (or class) of covered product shall be designed to achieve the maximum improvement in energy efficiency which the Secretary determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Among the factors DOE considers in evaluating whether a proposed standard level is economically justified includes whether the proposed standard at that level is cost-effective, as defined under 42 U.S.C. 6295(o)(2)(B)(i)(II). Under 42 U.S.C. 6295(o)(2)(B)(i)(II), an evaluation of cost-effectiveness requires DOE to consider savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard. (42 U.S.C. 6295(n)(2) and (o)(2)(B)(i)(II)) DOE is publishing this final determination in satisfaction of the 6-year review requirement in EPCA.

In a final rule published on January 26, 2015, DOE prescribed the current energy conservation standards for GSFLs. 80 FR 4042 (January 2015 final rule). These standards are set forth in DOE's regulations at 10 CFR 430.32(n)(3) and repeated in Table II.1.

Amendments to EPCA in the Energy Policy Act of 1992 (EPAct 1992; Pub. L. 102-486) established energy conservation standards for certain classes of GSFLs and incandescent reflector lamps (“IRLs”), and authorized DOE to conduct two rulemaking cycles to determine whether these standards should be amended. (42 U.S.C. 6295(i)(1) and (3)-(4)) EPCA also authorized DOE to adopt standards for additional GSFLs, if such standards were warranted. (42 U.S.C. 6295(i)(5)) DOE completed the first of these rulemaking cycles in a final rule published on July 14, 2009, that adopted amended performance standards for GSFLs and IRLs manufactured on or after July 14, 2012. 74 FR 34080. That rule adopted standards for additional GSFLs, amended the definition of “colored fluorescent lamp” and “rated wattage,” and also adopted test procedures applicable to the newly covered GSFLs. Id. DOE completed a second rulemaking cycle to amend the standards for GSFLs and IRLs by publishing a final rule on January 26, 2015. 80 FR 4042. In that final rule, DOE amended standards for GSFLs and concluded that amending standards for IRLs would not be economically justified. Id. Energy conservation standards for GSFLs are set forth in 10 CFR 430.32(n). DOE test procedures for GSFLs appear at 10 CFR part 430, subpart B, appendix R.

In support of the present review of the GSFL energy conservation standards, DOE published a request for information (RFI) on May 1, 2020, which identified various issues on which DOE sought comment to inform its determination of whether amended standards for GSFLs and IRLs are warranted. 85 FR 25326 (May 2020 RFI). On May 31, 2022, DOE published a notice of proposed determination not to amend standards for GSFLs. 87 FR 32329 (May 2022 NOPD). In the May 2022 NOPD, DOE stated that it was only considering amending standards for GSFLs, and not IRLs, because of two final rules recently published on May 9, 2022. The first rule, among other things, expanded the definition of general service lamps (“GSL”) to include IRLs. 87 FR 27461. The second rule, published on that same day, implemented a statutory backstop requirement for GSLs of 45 lumens per watt (lm/W). 87 FR 27439. Because IRLs, a newly covered GSL, cannot meet the 45 lm/W backstop requirement, DOE did not evaluate amended standards for IRLs in the May 2022 NOPD. Similarly, in this final determination, DOE evaluated amended standards only for GSFLs.

DOE received comments in response to the May 2022 NOPD from the interested parties listed in Table II.2.

A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 3

DOE developed this final determination after considering comments, data, and information from interested parties that represent a variety of interests. This final determination addresses issues raised by these commenters.

When evaluating and establishing energy conservation standards, DOE divides covered products into product classes by the type of energy used or by capacity or other performance-related features that justify differing standards. In making a determination whether a performance-related feature justifies a different standard, DOE must consider such factors as the utility of the feature to the consumer and other factors DOE determines are appropriate. (42 U.S.C. 6295(q)) The product classes for this final determination are discussed in further detail in section IV.A.4 of this document. This final determination covers GSFLs defined as any fluorescent lamp which can be used to satisfy the majority of fluorescent lighting applications, but does not include any lamp designed and marketed for the following nongeneral application: (1) Fluorescent lamps designed to promote plant growth; (2) Fluorescent lamps specifically designed for cold temperature applications; (3) Colored fluorescent lamps; (4) Impact-resistant fluorescent lamps; (5) Reflectorized or aperture lamps; (6) Fluorescent lamps designed for use in reprographic equipment; (7) Lamps primarily designed to produce radiation in the ultra-violet region of the spectrum; and (8) Lamps with a Color Rendering Index of 87 or greater. 10 CFR 430.2. The scope of coverage is discussed in further detail in section IV.A.1 of this document.

EPCA sets forth generally applicable criteria and procedures for DOE's adoption and amendment of test procedures. (42 U.S.C. 6293) Manufacturers of covered products must use these test procedures to certify to DOE that their product complies with energy conservation standards and to quantify the efficiency of their product. (42 U.S.C. 6295(s) and 42 U.S.C. 6293(c)) DOE's current energy conservation standards for GSFLs are expressed in terms of lm/W ( see 10 CFR part 430, subpart B, appendix R).

On July 6, 2009, DOE published a final rule that updated citations to industry standards and made several other modifications to the GSFL test procedure. 74 FR 31829. DOE further amended the test procedures to update references to industry standards for GSFLs in a final rule published on January 27, 2012. 77 FR 4203. On August 8, 2017, DOE published a RFI seeking comments on the current test procedures for GSFLs, IRLs, and general service incandescent lamps (GSILs). 82 FR 37031. On June 3, 2021, DOE published a NOPR proposing amendments to DOE's GSFL, IRL and GSIL test procedures. 86 FR 29888. On August 31, 2022, DOE published a final rule adopting the proposed amendments. 87 FR 53618. In that final rule, with regard to GSFLs, DOE updated the latest versions of the referenced industry test standards and provided cites to specific sections of these standards; clarified definitions, test conditions and methods, and measurement procedures; clarified test frequency and inclusion of cathode power in measurements; allowed manufacturers to make voluntary (optional) representations of GSFLs at high frequency settings; revised the sampling requirements; and aligned sampling and certification requirements with adopted test procedure terminology and with the Federal Trade Commission's labeling program. 87 FR 53618, 53620-53621.

The current test procedures for GSFLs are codified in appendix R to subpart B of 10 CFR part 430.

In evaluating potential amendments to energy conservation standards, DOE conducts a screening analysis based on information gathered on all current technology options and prototype designs that could improve the efficiency of the products or equipment that are the subject of the determination. As the first step in such an analysis, DOE develops a list of technology options for consideration in consultation with manufacturers, design engineers, and other interested parties. DOE then determines which of those means for improving efficiency are technologically feasible. DOE considers technologies incorporated in commercially available products or in working prototypes to be technologically feasible. Sections 6(b)(3)(i) and 7(b)(1) of 10 CFR part 430, subpart C, appendix A (appendix A).

After DOE has determined that particular technology options are technologically feasible, it further evaluates each technology option in light of the following additional screening criteria: (1) practicability to manufacture, install, and service; (2) adverse impacts on product utility or availability; (3) adverse impacts on health or safety; and (4) unique-pathway proprietary technologies. Sections 6(b)(3)(ii)-(v) and 7(b)(2)-(5) of appendix A. Section IV.A.3 of this document discusses the results of the screening analysis for GSFLs, particularly the designs DOE considered, those it screened out, and those that are the basis for the standards considered in this final determination. For further details on the screening analysis for this final determination, see chapter 4 of the final determination technical support document (TSD).

As when DOE proposes to adopt an amended standard for a type or class of covered product, in this analysis it must determine the maximum improvement in energy efficiency or maximum reduction in energy use that is technologically feasible for such a product. (42 U.S.C. 6295(p)(1)) Accordingly, in the engineering analysis, DOE determined the maximum technologically feasible (max-tech) improvements in energy efficiency for GSFLs, using the design parameters for the most efficient products available on the market or in working prototypes. The max-tech levels that DOE determined for this analysis are described in section IV.B of this final determination and in chapter 5 of the final determination TSD.

For each efficiency level (EL) evaluated, DOE projected energy savings from application of the EL to the GSFLs purchased in the 30-year period that begins in the assumed year of compliance with the potential standards (2026-2055). The savings are measured over the entire lifetime of the GSFLs purchased in the previous 30-year period. In order to account for wider market dynamics, DOE also modeled the purchases and energy consumption of tubular light-emitting diodes (TLEDs) over the same period that would compete for GSFL demand. DOE quantified the energy savings attributable to each EL as the difference in energy consumption of both GSFLs and TLEDs between each standards case and the no-new-standards case. The no-new-standards case represents a projection of energy consumption that reflects how the market for a product would likely evolve in the absence of amended energy conservation standards. DOE used its NIA spreadsheet model  4 to estimate national energy savings (NES) from potential amended or new standards for GSFLs. The NIA spreadsheet model (described in section IV.F of this document) calculates energy savings in terms of site energy, which is the energy directly consumed by products at the locations where they are used. For electricity, DOE reports NES in terms of primary energy savings, which is the savings in the energy that is used to generate and transmit the site electricity. DOE also calculates NES in terms of full-fuel-cycle (FFC) energy savings. The FFC metric includes the energy consumed in extracting, processing, and transporting primary fuels ( i.e., coal, natural gas, petroleum fuels), and thus presents a more complete picture of the impacts of energy conservation standards. 5 DOE's approach is based on the calculation of an FFC multiplier for each of the energy types used by covered products or equipment. For more information on FFC energy savings, see section IV.F of this document.

In determining whether amended standards are needed, DOE must consider whether such standards will result in significant conservation of energy. (42 U.S.C. 6295(m)(1)(A)) The significance of energy savings offered by a new or amended energy conservation standard cannot be determined without knowledge of the specific circumstances surrounding a given rulemaking. For example, some covered products and equipment have most of their energy consumption occur during periods of peak energy demand. The impacts of these products on the energy infrastructure can be more pronounced than products with relatively constant demand. Accordingly, DOE evaluates the significance of energy savings on a case-by-case basis.

Under EPCA's six-year-lookback review provision for existing energy conservation standards at 42 U.S.C. 6295(m)(1), cost-effectiveness of potential amended standards is a relevant consideration both where DOE proposes to adopt such standards, as well as where it does not. In considering cost-effectiveness when making a determination of whether amended energy conservation standards do not need to be amended, DOE considers the savings in operating costs throughout the estimated average life of the covered product compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the covered product that are likely to result from a standard. (42 U.S.C. 6295(m)(1)(A) ( referencing 42 U.S.C. 6295(n)(2))) Additionally, any new or amended energy conservation standard prescribed by the Secretary for any type (or class) of covered product shall be designed to achieve the maximum improvement in energy efficiency which the Secretary determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Cost-effectiveness is one of the factors that DOE considers under 42 U.S.C. 6295(o)(2)(B) in determining whether new or amended standards are economically justified. (42 U.S.C. 6295(o)(2)(B)(i)(II))

In determining cost effectiveness of amending standards for covered products, DOE generally conducts life-cycle cost (LCC) and payback period (PBP) analyses that estimate the costs and benefits to users from potential standards. Based on the rapidly declining shipments of GSFLs, and limited and uncertain energy savings opportunity, as discussed in sections IV.C, IV.E, and V.C of this final determination, DOE did not conduct LCC and PBP analyses to evaluate the economic impacts on individual consumers of amended GSFL energy conservation standards. To further inform DOE's consideration of the cost effectiveness of potential amended standards, DOE considered the NPV of total costs and benefits estimated as part of the NIA. The inputs for determining the NPV of the total costs and benefits experienced by consumers are (1) total annual installed cost, (2) total annual operating costs (energy costs and repair and maintenance costs), and (3) a discount factor to calculate the present value of costs and savings.

Pursuant to EPCA, absent DOE publishing a notification of determination that energy conservation standards for GSFLs do not need to be amended, DOE must issue a NOPR that includes new proposed standards. (42 U.S.C. 6295(m)(1)(B)) The new proposed standards in any such NOPR must be based on the criteria established under 42 U.S.C. 6295(o) and follow the procedures established under 42 U.S.C. 6295(p). (42 U.S.C. 6295(m)(1)(B)) The criteria in 42 U.S.C. 6295(o) require that standards be designed to achieve the maximum improvement in energy efficiency, which the Secretary determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) In deciding whether a proposed standard is economically justified, DOE must determine whether the benefits of the standard exceed its burdens. (42 U.S.C. 6295(o)(2)(B)(i)) DOE must make this determination after receiving comments on the proposed standard, and by considering, to the greatest extent practicable, the following seven statutory factors:

(1) The economic impact of the standard on manufacturers and consumers of the products subject to the standard;

(2) The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges for, or maintenance expenses of the covered products that are likely to result from the standard;

(3) The total projected amount of energy (or as applicable, water) savings likely to result directly from the standard;

(4) Any lessening of the utility or the performance of the covered products likely to result from the standard;

(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;

(6) The need for national energy and water conservation; and

(7) Other factors the Secretary considers relevant.

This section addresses the analyses DOE has performed for this final determination with regard to GSFLs. Separate subsections address each component of DOE's analyses. DOE used several analytical tools to estimate the impact of potential energy conservation standards. The NIA uses a spreadsheet set that provides shipments projections and calculates NES and net present value of total consumer costs and savings expected to result from potential energy conservation standards. These spreadsheet tools are available on the website: www.regulations.gov/docket?D=EERE-2019-BT-STD-0030.

DOE received general comments on the May 2022 NOPD. NEMA stated that it agreed with DOE's proposed determination to not amend current energy conservation standards for GSFLs because the technology is highly mature, and its market share is in sharp decline. (NEMA, No. 18 at p. 2)

ASAP et al. commented that in the May 2022 NOPD, DOE stated that projected energy savings from more stringent standards are due to a faster market shift to solid state lighting rather than reduction in GSFL energy use. ASAP et al. stated that this conclusion indicates that significant savings can be achieved by regulating linear lamps under a technology-neutral standard, which would accelerate transition of the market to light-emitting diodes (LEDs). ASAP et al. stated that NEMA's lamp sales index in the first quarter (Q1) of 2022 reported about two thirds of linear lamp shipments were still fluorescent. Specifically, ASAP et al. stated that because GSFLs and TLEDs provide the same utility for consumers, it makes sense to subject them to the same standards. (ASAP et al., No. 19 at pp. 1-2)

Further, ASAP et al. stated that replacing a linear fluorescent lamp with the more efficient TLED can reduce power consumption by 50 percent. It also stated that a 2022 ASAP and American Council for an Energy-Efficient Economy report estimated that a complete transition from fluorescent to LED lighting would yield cumulative carbon dioxide (CO 2 ) emissions reductions of about 200 million metric tons through 2050, the vast majority of which would come from linear lamps. ASAP et al. acknowledged that in the May 2022 NOPD, DOE stated that this rulemaking cannot address any product that does not meet the definition of a GSFL. ASAP et al. encouraged DOE to explore the possibility of setting a technology-neutral standard for all linear lamps in a separate rulemaking. (ASAP et al., No. 19 at p. 2)

In the May 2022 NOPD, DOE stated that the proposed determination addresses only GSFLs defined in 10 CFR 430.2, which do not include TLEDs. DOE stated that it is not authorized to consider any product not meeting this definition, such as TLEDs, as a part of this proposed determination. 87 FR 32329, 32336. Hence in the May 2022 NOPD, DOE did not conduct an analysis in which the scope of coverage included TLEDs. For the same reasons as stated in the May 2022 NOPD, DOE did not include TLEDs in the analysis of this final determination. However, as in the May 2022 NOPD, DOE agrees with ASAP et al. that TLEDs have gained market share at the expense of GSFLs and are suitable substitutes for GSFLs. Certain types of TLEDs are included in the definition of GSL in 10 CFR 430.2, and DOE is currently evaluating amending standards for GSLs in a NOPR published on January 11, 2023. 88 FR 1638.

DOE develops information in the market and technology assessment that provides an overall picture of the market for the products concerned, including the purpose of the products, the industry structure, manufacturers, market characteristics, and technologies used in the products. This activity includes both quantitative and qualitative assessments, based primarily on publicly available information. The subjects addressed in the market and technology assessment for this final determination include (1) a determination of the scope and product classes, (2) manufacturers and industry structure, (3) existing efficiency programs, (4) shipments information, (5) market and industry trends, and (6) technologies or design options that could improve the energy efficiency of GSFLs. The key findings of DOE's market assessment are summarized in the following sections. See chapter 3 of the final determination TSD for further discussion of the market and technology assessment.

In this analysis, DOE relied on the definition of fluorescent lamp and general service fluorescent lamp in 10 CFR 430.2. A fluorescent lamp is a low pressure mercury electric-discharge source in which a fluorescing coating transforms some of the ultraviolet energy generated by the mercury discharge into light, including only the following: (1) any 4-foot straight-shaped, medium bipin lamp with a rated wattage of 25 or more; (2) any 2-foot U-shaped, medium bipin (MBP) lamp with a rated wattage of 25 or more; (3) any 8-foot rapid start, recessed double contact (RDC) base, high output (HO) lamp; (4) any 8-foot instant start, single pin (SP) base, slimline lamp with a rated wattage of 49 or more; (5) any 4-foot straight-shaped, miniature bipin (MiniBP) standard output (SO) lamp with a rated wattage of 25 or more; and (6) any 4-foot straight-shaped, MiniBP HO lamp with a rated wattage of 44 or more. 10 CFR 430.2. GSFL is defined as any fluorescent lamp which can be used to satisfy the majority of fluorescent lighting applications, but does not include any lamp designed and marketed for the following nongeneral application: (1) fluorescent lamps designed to promote plant growth; (2) fluorescent lamps specifically designed for cold temperature applications; (3) colored fluorescent lamps; (4) impact-resistant fluorescent lamps; (5) reflectorized or aperture lamps; (6) fluorescent lamps designed for use in reprographic equipment; (7) lamps primarily designed to produce radiation in the ultra-violet region of the spectrum; and (8) lamps with a color rendering index (CRI) of 87 or greater. 10 CFR 430.2. Any product meeting the definition of GSFL is included in DOE's scope of coverage, though all products within the scope of coverage may not be subject to standards.

NEMA stated that there are energy saving opportunities in regulating the currently exempt linear fluorescent lamps with CRI of 87 or greater (high CRI). NEMA further stated that over the past years nine states (VT, CO, HI, WA, MA, OR, NV, NJ, MD) and the District of Columbia have passed regulations requiring high CRI linear fluorescent lamps meet current DOE efficiency standards. NEMA stated that these regulations are inconsistent in terms of effective dates and types of restriction ( e.g., sell-by, install by, manufacture by) and therefore, are administratively burdensome and increase risk of non-compliance and enforcement confusion for manufacturers, distributors, and retailers. NEMA further stated that in its April 2022 Forward Regulatory Plan, Canada's Office of Energy Efficiency also proposed to remove the exemption of high CRI fluorescent lamps from its energy efficiency standards. Based on potential energy savings and to provide uniformity in regulations at the national level and to continue to align with Canada's appliance energy efficiency standards, NEMA recommended that DOE expand the scope of this rulemaking to include high CRI linear fluorescent lamps and subject them to current energy efficiency standards. (NEMA, No. 18 at p. 2)

NEMA recommended a three-year implementation period of subjecting the high CRI lamps to current energy efficiency standards based on a manufacture by end-date. NEMA stated that three-year implementation periods are common in DOE's lighting product rulemakings and industry is familiar with the timeline. (NEMA, No. 18 at p. 2)

ASAP et al. also encouraged DOE to address energy savings opportunities from exempt fluorescent lamps including high CRI lamps. ASAP et al. stated that as standards for non-exempt GSFLs have been implemented, use of certain exempt lamps has become more widespread as the lamps are marketed for general use. In particular, ASAP et al. commented that high CRI and impact resistant linear lamps have gained in market share and will continue to do so. ASAP et al. stated that this is particularly problematic as most high CRI and to a lesser extent impact resistant lamps are being sold as T12 lamps, which are generally the most inefficient. ASAP et al. stated that the 2015 U.S. Lighting Market Characterization (LMC) report showed average efficacies of T12 lamps to be 70 to 80 lumens per watt (lm/W) and a recent review of the market showed a high CRI 4-foot medium bipin T12 lamp for sale with an efficacy of 55 lm/W ( i.e., almost 40 percent less efficacious than a lamp that just meets current GSFL energy efficiency standards). Further, ASAP et al. stated that the shift to TLEDs is impacting T8 lamps while the market share of T12 lamps remains relatively steady and will continue to do so in the absence of standards. ASAP et al. stated that according to NEMA lamp sales indexes, in Q1 2022, T8, T12, and T5 lamps accounted for 49.6, 9.7, and 7.5 percent of the market of linear fluorescent lamps, respectively. ASAP et al. also stated that a 2019 California Energy Commission report estimated that replacing a 4-foot T12, 8-foot standard output T12, and 8-foot high output T12 with a compliant T8 lamp yields energy savings of 45 kilowatt hour per year (kWh/yr), 83 kWh/yr, and 126 kWh/yr, respectively. (ASAP et al., No. 19 at pp. 2-3)

Finally, similar to comments provided by NEMA (see NEMA, No. 18 at p. 2), ASAP et al. cited states that had adopted regulations for high CRI lamps and additionally noted that in May 2022, New York state passed legislation that would give the New York State Energy Research and Development Authority the power to set standards for federally exempt fluorescent lamps, and in July 2022, the California Energy Commission announced “Federally Exempted Linear Fluorescent Lamps” as an upcoming standards rulemaking. (ASAP et al., No. 19 at p. 3)

ASAP et al. acknowledged that DOE stated in the May 2022 NOPD that it cannot modify the definition of GSFL to include statutorily exempt lamps in this rulemaking. ASAP et al. encouraged DOE to pursue setting standards for exempt lamps in a separate rulemaking. (ASAP et al., No. 19 at pp. 2-3)

In the May 2022 NOPD, DOE stated that exemptions for high CRI lamps and impact resistant fluorescent lamps are included in the statutory definition of “general service fluorescent lamp” (42 U.S.C. 6291(30)(B)) and it is not within the scope of DOE's authority in this rulemaking to modify these statutory exemptions. Additionally, as stated in the May 2022 NOPD, DOE finds no basis in the language of EPCA to support assertions that the agency's authority to consider energy conservation standards for “additional” GSFL under 42 U.S.C. 6295(i)(5) is unlimited. As discussed in the May 2022 NOPD, DOE interprets section 6295(i)(5) to cover additional GSFL that are not one of the lamps excluded from the definition of GSFL in 42 U.S.C. 6291(30)(B). 87 FR 32329, 32335-36. For these reasons, DOE did not consider high CRI lamps to be in the scope of this rulemaking.

In the May 2022 NOPD, DOE identified several technology options that would be expected to improve the efficiency ( i.e., efficacy or lumens per watt) of GSFLs, as measured by the DOE test procedure. To develop a list of technology options, DOE reviewed manufacturer catalogs, recent trade publications and technical journals, and the January 2015 final rule. In addition to the technology options identified in the January 2015 final rule, DOE identified mercury isotopes as a technology option that can be implemented to improve the efficiency of GSFLs. Mercury used in GSFLs is composed of seven different isotopes, each having a distinct excited state that provides ultraviolet (UV) light. The abundance of these isotopes can be altered to optimize the amount of UV light emitted and increase the efficiency of the lamp. 87 FR 32329, 32336. For more detail on this technology option, see chapter 3 of the final determination TSD.

NEMA stated that it agreed with DOE's assessment of technology options. (NEMA, No. 18 at p. 2)

In summary, in this final determination, DOE considers the technology options proposed in the May 2022 NOPD and shown in Table IV.1. Detailed descriptions of these technology options can be found in chapter 3 of the final determination TSD.

DOE uses the following five screening criteria to determine which technology options are suitable for further consideration in an energy conservation standards rulemaking:

(1) Technological feasibility. Technologies that are not incorporated in commercial products or in commercially viable, existing prototypes will not be considered further.

(2) Practicability to manufacture, install, and service. If it is determined that mass production of a technology in commercial products and reliable installation and servicing of the technology could not be achieved on the scale necessary to serve the relevant market at the time of the projected compliance date of the standard, then that technology will not be considered further.

(3) Impacts on product utility. If a technology is determined to have a significant adverse impact on the utility of the product to subgroups of consumers, or result in the unavailability of any covered product type with performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as products generally available in the United States at the time, it will not be considered further.

(4) Safety of technologies. If it is determined that a technology would have significant adverse impacts on health or safety, it will not be considered further.

(5) Unique-pathway proprietary technologies. If a technology has proprietary protection and represents a unique pathway to achieving a given efficiency level, it will not be considered further, due to the potential for monopolistic concerns.

The Energy Policy and Conservation Act, Public Law 94-163, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part C  2 of EPCA, 3 established the Energy Conservation Program for Certain Industrial Equipment. (42 U.S.C. 6311-6317) Such equipment includes PTACs and PTHPs, the subject of this rulemaking.

For this determination, DOE analyzed PTACs and PTHPs subject to standards specified in Code of Federal Regulations (“CFR”) at 10 CFR 431.97. DOE first analyzed the technological feasibility of more energy efficient PTACs and PTHPs. For those PTACs and PTHPs for which DOE determined higher standards to be technologically feasible, DOE estimated energy savings that would result from potential energy conservation standards by conducting a national impacts analysis (“NIA”). DOE also considered whether potential energy conservation standards would be economically justified. As discussed in the following sections, DOE has determined that it lacks clear and convincing evidence that amended energy conservation standards for PTACs and PTHPs would be economically justified. DOE evaluated whether higher standards would be cost effective by conducting life-cycle cost (“LCC”) and payback period (“PBP”) analyses and estimated the net present value (“NPV”) of the total costs and benefits experienced by consumers.

Based on the results of the analyses, summarized in section V of this document, DOE has determined that it lacks clear and convincing evidence that more stringent standards would result in significant additional energy savings and be technologically feasible and economically justified.

The following section briefly discusses the statutory authority underlying this final determination, as well as some of the historical background relevant to the establishment of standards for PTACs and PTHPs.

EPCA authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part C of EPCA (42 U.S.C. 6311-6317, as codified), added by Public Law 95-619, Title IV, section 441(a), established the Energy Conservation Program for Certain Industrial Equipment, which sets forth a variety of provisions designed to improve energy efficiency. This equipment includes PTACs and PTHPs, the subject of this document. (42 U.S.C. 6311(1)(I)) EPCA prescribed initial standards for this equipment. (42 U.S.C. 6313(a)(3))

Federal energy efficiency requirements for covered equipment established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6316(b); 42 U.S.C. 6297(a)) DOE may, however, grant waivers of Federal preemption in limited instances for particular State laws or regulations, in accordance with the procedures and other provisions set forth under EPCA. ( See 42 U.S.C. 6316(b)(2)(D))

The energy conservation program under EPCA consists essentially of four parts: (1) testing, (2) labeling, (3) the establishment of Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6311), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), energy conservation standards (42 U.S.C. 6313), and the authority to require information and reports from manufacturers (42 U.S.C. 6316; 42 U.S.C. 6296(a), (b), and (d)).

Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of covered equipment. (42 U.S.C. 6314(a)(2)) Manufacturers of covered equipment must use the Federal test procedures as the basis for: (1) certifying to DOE that their equipment complies with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6316(b); 42 U.S.C. 6296), and (2) making representations about the efficiency of that equipment (42 U.S.C. 6314(d)) Similarly, DOE uses these test procedures to determine whether the equipment complies with relevant standards promulgated under EPCA. The DOE test procedures for PTACs and PTHPs appear at 10 CFR 431.96(g).

The American Society of Heating, Refrigerating, and Air-Conditioning Engineers (“ASHRAE”) Standard 90.1 (“ASHRAE Standard 90.1”), “Energy Standard for Buildings Except Low-Rise Residential Buildings,” sets industry energy efficiency levels for small, large, and very large commercial package air-conditioning and heating equipment, packaged terminal air conditioners, packaged terminal heat pumps, warm air furnaces, packaged boilers, storage water heaters, instantaneous water heaters, and unfired hot water storage tanks (collectively “ASHRAE equipment”). For each type of listed equipment, EPCA directs that if ASHRAE amends Standard 90.1, DOE must adopt amended standards at the new ASHRAE efficiency level, unless DOE determines, supported by clear and convincing evidence, that adoption of a more stringent level would produce significant additional conservation of energy and would be technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii)) Under EPCA, DOE must also review energy efficiency standards for PTACs and PTHPs every six years and either: (1) issue a notice of determination that the standards do not need to be amended as adoption of a more stringent level is not supported by clear and convincing evidence; or (2) issue a notice of proposed rulemaking (“NOPR”) including new proposed standards based on certain criteria and procedures in subparagraph (B). (42 U.S.C. 6313(a)(6)(C))

In deciding whether a more-stringent standard is economically justified, under either the provisions of 42 U.S.C. 6313(a)(6)(A) or (a)(6)(C), DOE must determine whether the benefits of the standard exceed its burdens. DOE must make this determination after receiving comments on the proposed standard, and by considering, to the maximum extent practicable, the following seven factors:

(1) The economic impact of the standard on manufacturers and consumers of the products subject to the standard;

(2) The savings in operating costs throughout the estimated average life of the product in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses of the products likely to result from the standard;

(3) The total projected quantity of energy savings likely to result directly from the standard;

(4) Any lessening of the utility or the performance of the products likely to result from the standard;

(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;

(6) The need for national energy conservation; and

(7) Other factors the Secretary considers relevant.

EPCA, as codified, also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6313(a)(6)(B)(iii)(I)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States in any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States. (42 U.S.C. 6313(a)(6)(B)(iii)(II)(aa))

EPCA further provides that, not later than three years after the issuance of a final determination not to amend standards, DOE must publish either a notice of determination that standards for the product do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6313(a)(6)(C)(iii)(II)) A determination that amended energy conservation standards are not needed must be based on the same considerations as if it were adopting a standard that is more stringent than an amendment to ASHRAE Standard 90.1. (42 U.S.C. 6313(a)(6)(C)(i)(II); 42 U.S.C. 6313(a)(6)(A)) DOE must make the analysis on which the determination is based publicly available and provide an opportunity for written comment. (42 U.S.C. 6313(a)(6)(C)(ii))

DOE is publishing this final determination in satisfaction of the 6-year review requirement in EPCA, having determined that DOE lacks clear and convincing evidence that amended standards for PTACs and PTHPs would be economically justified.

In a final rule published on July 21, 2015 (“July 2015 final rule”), DOE prescribed the current energy conservation standards for PTACs and PTHPs. 80 FR 43162. These levels are expressed in energy efficiency ratio (“EER”) for the cooling mode for PTACs and PTHPs and in coefficient of performance (“COP”) for the heating mode for PTHPs. 10 CFR 431.97(c). EER is defined as the ratio of the produced cooling effect of an air conditioner or heat pump to its net work input, expressed in British thermal units (“Btu”)/watt-hour. 10 CFR 431.92. COP is defined as the ratio of the produced cooling effect of an air conditioner or heat pump (or its produced heating effect, depending on the mode of operation) to its net work input, when both the cooling (or heating) effect and the net work input are expressed in identical units of measurement. 10 CFR 431.92.

The current energy conservation standards are located at 10 CFR 431.97, Tables 7 and 8, and repeated in Table II-1.

In the July 2015 final rule, DOE published amendments to the PTAC and PTHP standards in response to the 2013 update to ASHRAE Standard 90.1 (“ASHRAE Standard 90.1-2013”). 80 FR 43162. DOE determined that ASHRAE Standard 90.1-2013 amended the standards for three of the 12 PTAC and PTHP equipment classes: PTAC standard size less than 7,000 Btu/h, PTAC standard size greater than or equal 7,000 Btu/h and less than or equal to 15,000 Btu/h, and PTAC standard size greater than 15,000 Btu/h. 80 FR 43162, 43163. DOE adopted the standard levels for these three equipment classes as updated by ASHRAE Standard 90.1-2013, with compliance with the amended standards required for equipment manufactured on or after January 1, 2017. Id. DOE did not amend the energy conservation standards for the remaining nine equipment classes, which were already aligned with the standards in ASHRAE Standard 90.1-2013. 80 FR 43162, 43166. DOE was unable to show with clear and convincing evidence that energy conservation standards at levels more stringent than the minimum levels specified in the ASHRAE Standard 90.1-2013 for any of the 12 equipment classes would be economically justified. 80 FR 43162, 43163.

Since ASHRAE Standard 90.1-2013 was published, ASHRAE Standard 90.1 has undergone three further revisions. A revision was published on October 26, 2016 (“ASHRAE Standard 90.1-2016”) and a revision was published on October 24, 2019 (“ASHRAE Standard 90.1-2019”). The most recent revision was published in January, 2023 (“ASHRAE Standard 90.1-2022”). None of these publications amended the minimum EER and COP levels for PTACs and PTHPs.

In support of the present review of the PTACs and PTHPs energy conservation standards, DOE published an early assessment review request for information (“RFI”) on December 21, 2020 (“December 2020 ECS RFI”), which identified various issues on which DOE sought comment to inform its determination of whether the standards need to be amended. 85 FR 82952.

Subsequently, on June 24, 2022, DOE published a notice of proposed determination (“NOPD”) where DOE tentatively determined that it lacks clear and convincing evidence that more-stringent standards for PTACs and PTHPs would result in significant additional energy savings and be technologically feasible and economically justified (“June 2022 NOPD”). 87 FR 37934.

DOE received comments in response to the June 2022 NOPD from the interested parties listed in Table II-2. These comments are discussed in detail in section IV of this document.

The Bureau is issuing this Advisory Opinion through the procedures for its Advisory Opinions Policy. 1 Please review those procedures for more information.

The Real Estate Settlement Procedures Act (RESPA)  2 provides a series of protections for consumers who are engaged in the process of buying a home, applying for or closing on a mortgage, making escrow payments, or purchasing other services associated with most residential real estate transactions. 3 RESPA section 8(a)  4 provides that no person  5 shall give and no person shall accept any fee, kickback, or thing of value  6 pursuant to any agreement or understanding, 7 oral or otherwise, that business incident to or a part of a real estate settlement service  8 involving a federally related mortgage loan  9 shall be referred  10 to any person. While RESPA section 8(a) prohibits referral fees, RESPA section 8(c) provides that bona fide payments for goods or facilities provided or services rendered (which do not include payments for referral fees) are not prohibited by RESPA section 8. 11

RESPA and its implementing Regulation X  12 have been in effect for nearly a half century. One of the reasons for RESPA's enactment in 1974 was congressional concern over excessive settlement costs. Congress found that “significant reforms in the real estate settlement process are needed to insure that consumers throughout the Nation . . . are protected from unnecessarily high settlement charges caused by certain abusive practices that have developed in some areas of the country.”  13 Among the RESPA statutory purposes is the “elimination of kickbacks or referral fees that tend to increase unnecessarily the costs of certain settlement services.”  14 Congressional committee reports noted that kickbacks for the referral of settlement service business were a common practice in the real estate industry and cited payments for referrals of settlement services as a factor in the inflated prices for those services. 15

Further, Congress in 1983 amended RESPA to permit what are now called affiliated business arrangements subject to certain conditions. 16 In doing so, Congress recognized that settlement service providers engage in reverse competition for their business—that is, they do not compete for a consumer's business directly, but rather compete for and almost exclusively rely on referrals from, e.g., real estate brokers or lenders—and that this dynamic can have deleterious effects on consumers and markets beyond higher settlement costs. 17 One court, citing the legislative and regulatory history concerning the affiliated business arrangement provisions, noted that “RESPA's overarching goal” was to “mitigat[e] market-distorting practices.”  18 Consistent with the notion that RESPA section 8 addresses consumer harms beyond settlement cost increases, Regulation X provides that a RESPA section 8 violation can occur even if the consumer's settlement costs do not increase. 19

RESPA section 8 applies broadly, and in many circumstances covers conduct by persons who connect settlement service providers to consumers who may be interested in purchasing a home, applying for a mortgage, or otherwise using a settlement service provider in a RESPA-covered transaction. This may include selling the consumer's contact information ( i.e., leads) to settlement service providers. Leads are increasingly sold through a variety of digital platforms and related business agreements.

In particular, some digital platforms are structured as consumer-facing websites or online applications that allow consumers to search for and compare options for mortgages or other settlement services. 20 These digital platforms—in some cases called “online marketplaces”—can facilitate a consumer's choice among alternative products or settlement service providers and may be operated by settlement service providers or third parties. 21 Through their interaction with these digital platforms, consumers often provide their contact information to set up an account, and sometimes they may provide additional information that is typically part of a mortgage application or fill out an online long form. The platform operator then purports to use the consumer's information to help the consumer compare a range of options to find a suitable lender or other settlement service provider that the consumer can contact. The platforms typically will generate leads for the participating lender or other settlement service provider by facilitating the consumer's click-through to the website of the participating provider, selling the consumer's contact information to the provider, or both. The comparison information may be presented to the consumer viewing the platform in a static or interactive format. In the latter case, the platform may give consumers the ability to sort the options or rankings based on different criteria or to customize the presentation of options or rankings based on factors they can select (sometimes after default options or rankings are presented). Digital platforms may also combine online marketplace and lead generation activities with other services, such as advertising to consumers.

This Advisory Opinion focuses on digital platforms that include information or features that enable consumers to comparison shop options for mortgages and other settlement services, including those platforms that generate potential leads for the platform participants through consumers' interaction with the platform (Digital Mortgage Comparison-Shopping Platforms). Digital Mortgage Comparison-Shopping Platforms generally are covered by a 1996 policy statement issued by the Department of Housing and Urban Development (HUD) on “computer loan origination systems,” or CLOs (HUD CLO Policy Statement), 22 which the CFPB has applied, as relevant, since 2011, when Congress transferred responsibility for RESPA to the CFPB from HUD. 23

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Textron Model 210N, 210R, P210N, P210R, T210N, T210R, 177, 177A, 177B, 177RG, and F177RG airplanes. The NPRM published in the Federal Register on May 11, 2021 (86 FR 25812).

The NPRM was prompted by a report that, on May 26, 2019, a Textron Model T210M airplane experienced an in-flight breakup while performing low-altitude aerial survey operations in Australia. The carry-thru spar failed and resulted in wing separation and loss of control of the airplane. A visual examination of the fracture surface identified fatigue cracking that initiated at a corrosion pit. The FAA issued an airworthiness concern sheet (ACS) on June 27, 2019, advising owners and operators of the accident and requesting relevant information about the fleet.

Following the ACS, the FAA received reports of widespread and severe corrosion of the carry-thru spar. Earlier Model 210G, T210G, 210H, T210H, 210J, T210J, 210K, T210K, 210L, T210L, 210M, and T210M airplanes experienced the most widespread and severe corrosion, and the FAA issued AD 2020-03-16, Amendment 39-21029 (85 FR 10043, February 21, 2020) (AD 2020-03-16) as an immediately adopted rule (Final Rule; Request for Comments) to address the unsafe condition on those airplanes.

The FAA also received reports of corrosion on later Model 210N, P210N, T210N, 210R, P210R, and T210R airplanes and Model 177-series airplanes. On Model 210N, P210N, T210N, 210R, P210R, and T210R airplanes, the upper surface of the carry-thru spar is covered by fuselage skin and is not exposed to the environment. This removes the leak paths at the skin splices common to the earlier Model 210-series airplanes and reduces the potential for moisture intrusion. Additionally, the later Model 210-series airplanes were manufactured with zinc chromate primer applied to all carry-thru spars. However, the later Model 210-series airplanes were also delivered with foam installed along the carry-thru spar lower cap. The foam traps moisture against the lower surface of the carry-thru spar cap, which can aid in the development of corrosion.

The Model 177-series airplanes share a similar carry-thru spar design with the earlier Model 210-series airplanes: The upper surface of the carry-thru spars are exposed, and the carry-thru spars might not have been delivered with zinc chromate primer applied. Although Model 177-series airplanes were not delivered with foam padding installed on the lower surface of the carry-thru spar, corrosion has been reported on the carry-thru spar lower cap for these airplanes. Corrosion of the carry-thru spar lower cap can lead to fatigue cracking or reduced structural strength of the carry-thru spar, which, if not addressed, could result in wing separation and loss of control of the airplane.

In the NPRM, the FAA proposed to require visual and eddy current inspections of the carry-thru spar lower cap for corrosion, cracking, and damage; corrective action if necessary; application of a protective coating and CIC; and reporting the inspection results to the FAA. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received comments from 124 commenters. The majority of comments were from individuals. Organizations submitting comments included the Aircraft Owners and Pilots Association (AOPA), Aviation Plus LLC, Cardinal Flyers Online, and Textron. In addition, the FAA has included in the docket a discussion with the European Union Aviation Safety Agency that clarifies the proposed NPRM. The following summarizes the comments received on the NPRM and provides the FAA's responses.

Comment summary: AOPA and numerous individual commenters requested that the NPRM be withdrawn.

Seven commenters stated that the NPRM was unnecessary because they diligently inspect their airplanes and have not detected any problems during their inspections. Three commenters explained that this crash was due to a maintenance issue. One commenter questioned how the accident airplane was maintained. Another commenter stated that an AD is not necessary because the Model T210M spar fracture was due to heavy use and lack of maintenance and that a service bulletin would be sufficient. Several individual commenters discussed how the accident airplane was operated, stating improper operation and operation outside the standard limit of the airframe caused the accident.

Two commenters stated that there does not appear to be evidence that a problem exists. One commenter stated that voluntary visual inspections of the fleet have not exposed a widespread issue and noted that all airplane structures are exposed to the same aging issues of corrosion and fatigue and that the NPRM singles out Model 210- and 177-series airplanes.

FAA response: The FAA disagrees with the commenters' requests to withdraw the NPRM. Based on available data, including the corrosion and damage reports received, the FAA disagrees that an unsafe condition does not exist. While the in-flight break-up of a Model T210M airplane in Australia was the catalyst for this AD, the FAA determined that Model 210- and 177-series airplanes share a common single-load path design constructed from the same material. Also, the FAA issued an ACS, dated June 27, 2019, advising owners and operators of the accident and requesting relevant information about the fleet. The reports gathered in response to this ACS, combined with inspection reports received in response to AD 2020-03-16, issued to address widespread and severe corrosion of the carry-thru spars on Model 210G, T210G, 210H, T210H, 210J, T210J, 210K, T210K, 210L, T210L, 210M, and T210M airplanes, revealed that carry-thru spars for Model 210- and 177-series airplanes are subject to corrosion. Corrosion can initiate cracking, resulting in a carry-thru spar being unable to carry the required load.

Australian Transport Safety Bureau (ATSB) Report AO-2019-026, In-flight break-up involving Cessna T210M, VH-SUX, dated May 26, 2019 (ATSB AO-2019-026) does state, in part, that “The cyclic loads induced by the low-level survey flight profile were significantly greater than those associated with the higher-level flight profile originally intended for the aircraft type. This probably increased the risk of fatigue-related structural failure.” However, ATSB AO-2019-026 does not list inadequate operator maintenance or identify improper operation as contributing factors to the accident.

The FAA acknowledges that the carry-thru spar on individual airplanes might not have findings of corrosion or damage. However, as of January 13, 2023, the FAA has received 226 inspection reports from operators of Model 210N, 210R, P210N, P210R, T210N, and T210R airplanes that include 21 reports of corrosion and damage, with two carry-thru spars removed from service. The FAA has also received 211 inspection reports from operators of Textron Model 177-series airplanes that include 120 reports of corrosion and at least 14 spars removed from service due to corrosion or damage.

Three commenters stated that the NPRM was overreaching. One commenter stated that the NPRM could be interpreted as punitive and another commenter stated that it is overreaching because it cast a net to include all Model 177-series airplanes and most Model 210-series airplanes.

FAA response: The FAA disagrees with the commenters' requests to withdraw the NPRM. Based on available data, including the corrosion and damage reports received, the FAA disagrees that the NPRM was overreaching by including all Model 210- and 177-series airplanes in the applicability. The FAA agrees that other types and models of airplanes have corrosion and fatigue issues, but this AD and its compliance time are based on data for these model airplanes and the nature of this unsafe condition. The applicability of this AD is all Model 210- and 177-series airplanes with carry-thru spars manufactured from 2014-T6 aluminum forging because this part is single-load path, critical structure manufactured from a material susceptible to severe corrosion.

Six commenters requested the FAA withdraw the NPRM and allow operators to rely upon the existing maintenance directions or service documents. Another commenter stated that a Textron service letter approach would be sufficient. One commenter stated that the service information approach was the correct decision and that Textron should provide data behind the request for the NPRM. The FAA infers that the commenter is requesting that the NPRM be withdrawn in lieu of service information. One commenter suggested that the FAA issue an SAIB instead of an AD.

FAA Response: The FAA disagrees with the commenters' requests to withdraw the NPRM. The procedures in Textron service letters are not legally enforceable requirements. Similarly, the FAA could issue an SAIB to draw attention to the inspections area, but an SAIB is informational only. Thus, an AD is the only way the FAA can mandate the procedures necessary to fix the unsafe condition.

Textron does not have the authority to determine if the FAA will or will not issue an AD on a potential airworthiness issue. The FAA has the regulatory authority to issue an AD and, in compliance with 14 CFR 39.5, issues an AD when it determines that an unsafe condition exists that is likely to exist or develop in other products of the same type design. For this AD, the FAA based its determination on data received in response to the ACS dated June 27, 2019, inspection reports completed on airplanes in the fleet, and data and analysis provided by Textron and evaluated by the FAA.

Cessna previously identified the carry-thru spar as an area of concern through the Continued Airworthiness Program (CAP) inspections, introduced in 1992, as well as the later published supplemental inspection documents (SIDs). Specifically, CAP Inspection Number 57-10-08 for the Cessna 210 identifies inspections for the carry-thru spar lower surface and additional inspection on the lower spar cap. Subsequent inspections completed after the Model T210M accident in Australia indicated that operators were not doing the voluntary inspections specified in the SIDs.

Comment summary: Eleven commenters requested that the FAA provide the data used to justify the NPRM. One commenter stated that pilots and owners need access to the underlying data being used to make critical decisions. Another commenter stated that neither the FAA nor Textron presented any evidence of the corrosion issue existing in Model 210-series airplanes that came from the factory with corrosion proofing coating already applied, specifically the 1979 N-model and newer airplanes, and suggested the FAA investigate the issue before taking widespread steps to correct what may be a theoretical issue. An additional commenter stated that no description is found specifying what constitutes severe corrosion compared to non-severe corrosion and requested to know how likely a carry-thru spar is to fail with corrosion versus severe corrosion. Another commenter requested that the FAA provide data to show there is a real threat to warrant immediate intervention.

FAA response: The FAA agrees with the commenters' requests to provide additional information regarding the data used to justify issuing this AD. Prior to issuing AD 2020-03-16 and the NPRM for this final rule, the FAA issued the ACS, dated June 27, 2019, advising owners and operators of the accident involving the Model T210M airplane in Australia and requesting relevant information about the fleet. The FAA evaluated data obtained in response to the ACS and from inspection reports completed in response to Textron Aviation Mandatory Single Engine Service Letter, SEL-57-06, dated June 24, 2019 (Textron SEL-57-06); Textron Aviation Single Engine Service Letter SEL-57-07, dated June 24, 2019 (Textron SEL-57-07); and subsequent Textron service letters that are identified in the Other Related Information paragraph. The data demonstrated that the risk was higher in earlier Model 210 airplanes (Model 210G, T210G, 210H, T210H, 210J, T210J, 210K, T210K, 210L, T210L, 210M, and T210M airplanes), which supported issuing AD 2020-03-16 as an immediately adopted rule (Final Rule; Request for Comments).

The data received for later Model 210- and 177-series airplanes supported issuing the NPRM for this final rule. As of January 13, 2023, the FAA has received inspections results for 226 Model 210N, 210R, P210N, P210R, T210N, and T210R airplanes, including 21 reports of corrosion and damage and 2 spars removed from service. None of these later model airplanes reported cracking in the carry-thru spar. For Model 177-series airplanes, the FAA has received inspections results for 211 airplanes, including 120 reports of corrosion and at least 14 spars removed from service due to corrosion or damage. There have not been any reports of cracking in the lower flange of the carry-thru spars on Model 177-series airplanes.

Model 210- and 177-series airplanes share a similar carry-thru spar design with similar geometry. The carry-thru spars are single-load path, critical structure manufactured from 2014-T6 aluminum forging, which is susceptible to intergranular corrosion. A description of intergranular corrosion can be found in Chapter 2, Section 2.5.5, of FAA Advisory Circular AC 43-4B, Corrosion Control for Aircraft, dated September 11, 2018. Analysis completed by Textron demonstrated that the carry-thru spars on Model 210- and 177-series airplanes experience similar stress levels in operation. As of January 13, 2023, at least six spars were reported to have suspected cracking associated with corrosion in the lower flange of the carry-thru spar on early Model 210-series airplanes. For the carry-thru spar, severe corrosion is demonstrated by blistering, scaling, flaking, or measuring in excess of 0.010-inch deep. Any corrosion that results in cracking also qualifies as severe corrosion. Due to a large number of variables, the FAA cannot predict how spars with varying degrees of theoretical corrosion could fail in comparison to one another. However, the FAA's inability to predict the precise moment of failure does not eliminate or invalidate the unsafe condition.

The FAA determined that a longer compliance time than what is required by AD 2020-03-16 was acceptable for addressing the identified unsafe condition for later Model 210-series airplanes (Models 210N, P210N, T210N, 210R, P210R, and T210R airplanes) and Model 177-series airplanes, which is why those airplane models were not included in AD 2020-03-16 but are included in the applicability for this AD.

Numerous individual commenters requested changes to the applicability of the proposed AD for a variety of reasons.

Comment summary: Thirteen commenters requested that the proposed AD account for differences between Model 210- and 177-series airplanes, including weight, operational usage, flight characteristics, wing loading, and application of corrosion protection. Four commenters stated that the FAA should account for the lack of interior foam padding installed on the lower carry-thru spar cap lower surface on Model 177-series airplanes as compared to Model 210-series airplanes. Two commenters identified that Model 177-series airplanes lack an interior bracket that is installed on Model 210-series airplanes, with one commenter noting the straps are dissimilar metal. Another commenter stated that corrosion on Model 177-series airplanes was found on the spar web, lower cap to web radius, and upper surface of the lower cap, as opposed to the Model 210-series airplanes where corrosion was found on the lower surface of the lower cap.

FAA response: The FAA acknowledges that there are differences in the carry-thru spars between Model 210- and 177-series airplanes. The FAA agrees that any subsequent rulemaking for the carry-thru spars on Model 210- and 177-series airplanes might not be the same. However, this is an interim AD requiring a visual inspection, eddy current inspection of the critical location, and corrosion treatment of the spars, and the FAA has determined that this action is necessary to address the unsafe condition for all affected airplanes.

Although the carry-thru spars for both Model 210- and 177-series airplanes are constructed from the same 2014-T6 aluminum forgings, the thicknesses of the caps are thinner on Model 177-series airplanes compared to Model 210-series airplanes. While the carry-thru spars on Model 177-series airplanes do not have interior foam adhered to the lower carry-thru spar cap, the installation orientation of the carry-thru spar in the airplane can result in moisture collecting on the upper surface of the forward flange of the carry-thru spar lower cap, and corrosion has been found on the tension-carrying lower cap. This AD only requires inspecting the lower cap and not the upper cap, web, or web to lower cap radius. Of the 120 reports of corrosion for Model 177-series airplanes, 27 include findings of corrosion on the upper surface of the lower carry-thru spar cap, an area included in the inspections required by this AD. Many of the 120 reports included insufficient information to identify the specific location of the corrosion.

Like the carry-thru spars on Model 210-series airplanes, some carry-thru spars on Model 177-series airplanes were treated with primer in the factory prior to delivery, though not all spars were treated. This AD does account for the differences in these carry-thru spars in the required corrosion protection application. However, the existence of primer itself may not eliminate the possibility that corrosion exists and the spars still must be inspected. The FAA reviewed reports gathered in response to the ACS, dated June 27, 2019, and in response to AD 2020-03-16, which demonstrated that the carry-thru spars on both Model 210- and 177-series airplanes are subject to corrosion. Corrosion can initiate a crack, resulting in the carry-thru spar being unable to carry the required load. Analysis demonstrates crack growth can happen on an airplane under typical operation and in the original configuration. The carry-thru spars installed on Model 210- and 177-series airplanes share a similar single-load path design and geometry, are critical structure, and are constructed of 2014-T6 aluminum forging, which is susceptible to intergranular corrosion. Analysis completed by Textron demonstrated that the carry-thru spars experience similar stress levels in typical operation.

Although Model 177-series airplanes lack interior brackets that are installed on Model 210-series airplanes, corrosion on Model 210-series airplanes is not limited to the area surrounding the interior brackets and has been reported in a variety of locations on the carry-thru spar lower cap. The interior brackets installed on a limited number of Model 210-series airplanes are manufactured from 2024-T42 aluminum, which would not cause dissimilar metal corrosion with the carry-thru spar 2014-T6 aluminum forging. Corrosion has also been reported on Model 210-series airplanes that do not have the interior brackets installed.

Comment summary: One commenter stated that Model 177-series airplanes should not be included in the applicability of the proposed AD because the Model T210M airplane involved in the Australia accident was highly modified and flown in an aggressive manner that exceeded its design parameters. Eight commenters stated that there is a lack of service difficulty reports and failures associated with Model 177-series airplanes to justify including them in the applicability of the proposed AD. Three commenters stated that they did not find any issues during their airplane inspections. One commenter requested that Model F177RG airplanes be excluded from the applicability of the proposed AD because they were delivered from the factory with an interior coating of zinc chromate for corrosion protection.

Two commenters stated that the Cessna Model 177 community is proactive regarding maintenance and has a strong type club. The FAA infers that these commenters are requesting changes to the proposed AD based on the proactive nature of the Cessna Model 177 community.

FAA response: The FAA does not agree with the commenters' requests to remove Model 177-series airplanes from the applicability of this AD. The justification for issuing this AD is not based solely on the accident of the Model T210M airplane in Australia. Although that accident was a catalyst, as mentioned previously, the carry-thru spars on Model 210- and 177-series airplanes share a similar single-load path design, are critical structure, and are constructed of 2014-T6 aluminum forging, which is susceptible to intergranular corrosion. The FAA does not dispute that carry-thru spars on individual airplanes may not be affected by corrosion or damage; however, the reported inspection results demonstrate that Model 177-series airplanes do have a high rate of corrosion and damage.

The FAA agrees that the Cessna 177 community has a very strong type club and many proactive owners and operators. However, the FAA disagrees that Model 177-series airplanes should not be subject to the actions defined in the proposed AD. Not all operators are proactive and diligent in voluntarily inspecting for corrosion, so the inspections must be mandated. Out of the 211 Model 177-series reports received by the FAA as of January 13, 2023, 120 have reported corrosion. Of those, at least 14 were removed from service due to corrosion or damage.

The FAA acknowledges that some Model 177-series carry-thru spars, including those on Model F177RG airplanes, were treated with primer in the factory prior to delivery. This AD does account for the differences in these spars in the requirement to apply corrosion protection. However, the FAA disagrees that airplanes delivered from the factory with corrosion protection applied should be excluded from the AD, as corrosion has been reported on airplanes with factory-applied corrosion protection.

Comment summary: Two commenters requested that later Model 210-series airplanes (Models 210N, 210R, P210N, P210R, T210N, and T210R) be removed from the applicability of the proposed AD because the cabin roof skin is one piece and completely covers the carry-thru spars, which prevents water entry. The commenters stated that these airplane models were factory-primed prior to installation, which improves the corrosion protection, and that none of the Model 210N and Model 210R airplanes that they are responsible for have evidence of corrosion related problems. One of the commenters stated that Model 210N airplanes, especially Model P210N airplanes, should not be included in the proposed AD because these airplanes have continuous fuselage skin and have factory-applied zinc chromate coating and sealant applied on the pressurized fuselage.

FAA response: The FAA acknowledges that later Model 210-series airplanes, including Model 210N, 210R, P210N, P210R, T210N, and T210R airplanes, are less susceptible to corrosion than the earlier Model 210-series airplanes. As of January 13, 2023, the FAA has received inspection reports on 226 later Model 210-series airplanes, including 15 (7%) reporting corrosion. No later Model 210-series airplanes were removed from service due to corrosion. Two carry-thru spars were removed from service due to damage. This is compared to 47% of the earlier Model 210-series airplanes reporting corrosion and 57% of the Model 177-series airplane fleet reporting corrosion.

The combined features of factory primer, continuous skin, and sealing, specifically associated with the pressurized airplanes, likely contributed to the lower corrosion rate; however, carry-thru spars on all Model 210-series airplanes have a similar carry-thru spar design and the actions identified in this AD are appropriate for all Model 210-series airplanes. As previously discussed, the carry-thru spars have a single-load path critical structure, and the spar is constructed of 2014-T6 aluminum forging, which is susceptible to intergranular corrosion. Additionally, analysis completed by Textron revealed that later Model 210-series airplanes, due to their weight and configuration, demonstrate higher stress levels in operation when compared to earlier Model 210-series airplanes. Therefore, the critical crack length—the length at which the crack reduces the capability of the structure below that provided in the certification basis—is smaller in the later Model 210-series airplanes. This AD is interim action and the FAA will continue to evaluate the inspection reports when determining final action for mitigating the identified unsafe condition on Model 210-series airplanes.

Comment summary: Several commenters requested that the applicability of the proposed AD take into account the type of airplane operation. The commenters noted that the Model T210M airplane that experienced the in-flight break-up was operated in a more severe manner than the typical fleet. One commenter noted that Textron SEL-57-07 included similar visual and eddy current inspections as those in the proposed AD but the effectivity was limited to airplanes flown with severe usage, as defined by service and maintenance manual information. Another commenter suggested that an evaluation be used similar to one that was used for the Piper wing spar AD 2020-26-16, Amendment 39-21371 (86 FR 3769, January 15, 2021).

FAA response: The FAA reviewed inspection reports provided by operators of the current fleet of Model 210- and 177-series airplanes, which includes corrosion reports for airplanes operated in various environments, ranging from mild to severe corrosion environments, and under different types of operation. In addition, enforcement of an AD based on airplane operation would be difficult because FAA regulations do not require all operators to maintain records of operations based on usage and many airplanes are utilized in different kinds of operations.

The FAA determined that an evaluation similar to the one used for Piper wing spar AD 2020-26-16 is not appropriate for this AD. AD 2020-26-16 requires calculating “factored service hours” for each main wing spar to determine when an inspection is required. The application of the “factored service hours” formula will identify when an airplane meets the criteria for the eddy current inspection of the lower main wing spar bolt holes and replacement of the wing spar on affected Piper airplanes.

The unsafe condition on the Model 210-and 177-series airplanes addressed by this AD involves both corrosion and cracking. The FAA cannot use an evaluation similar to the one used for the Piper airplanes to draw the same conclusions or correlations to the unsafe condition addressed by this AD, as the unsafe condition associated with AD 2020-26-16 is primarily associated with fatigue cracking concerns.

Comment summary: One commenter requested that the FAA account for the differences in primed and unprimed carry-thru spars on Model 177-series airplanes in the proposed AD. The commenter explained that early Model 177-series airplanes did not have protective coating (primer) applied from the factory but mid and later year airplanes did.

FAA response: The FAA acknowledges that carry-thru spars on some Model 177-series airplanes were treated with primer in the factory prior to delivery and this AD does account for the differences between primed and unprimed airplanes regarding the requirement to apply corrosion protection. However, the FAA disagrees that airplanes delivered with factory-applied corrosion protection should be excluded from the applicability of this AD. Corrosion has been reported on airplanes with factory-applied corrosion protection and the carry-thru spars on those airplanes must be inspected.

Comment summary: AOPA, Cardinal Flyers Online, and several individual commenters requested that the FAA allow special flight permits. The commenters explained that not all owners and operators have local repair and maintenance facilities and that many repair and maintenance facilities cannot perform all of the actions necessary to comply with the requirements specified in the proposed AD. The commenters noted that paragraph (m) of the proposed AD prohibited special flight permits, which would prohibit any flight to complete the visual and eddy current inspections specified in the proposed AD; therefore, all visual inspections and on-condition blending must either be completed at a facility with eddy current capability or would require an inspector with such capability to travel to the airplane. The commenters stated that allowing special flight permits would allow more facilities to complete individual portions of the inspection, increasing capacity and alleviating backlog at aircraft maintenance facilities. The commenters stated that allowing special flight permits could increase repair quality, improve scheduling, reduce costs, and encourage more owners to complete the inspections, increasing the safety of the fleet. Prohibiting special flight permits, however, could result in the inability to repair the affected airplanes. In addition, four commenters stated that the lack of documented failures for the Model 177 does not justify the prohibition of special flight permits.

FAA response: The FAA partially agrees with the commenters' requests and revised paragraph (m) of this AD to allow special flight permits in limited situations because it would grant owners and operators more flexibility when complying with the required actions in this AD and reduce the burden on inspection facilities and mechanics.

The FAA revised paragraph (g)(4) of this AD to allow airplanes without detected corrosion, cracking, or other damage, or evidence of previous corrosion removal to continue to operate and complete the eddy current inspection required by paragraph (h) of this AD within 200 hours TIS after the effective date of the AD or within 12 months after the effective date of this AD, whichever occurs first.

The FAA agrees with allowing an airplane with evidence of corrosion to be relocated if the process for obtaining a special flight permit is completed in accordance with FAA regulations, policy, and guidance. Furthermore, the FAA agrees with allowing an airplane with damage other than corrosion or evidence of previous blending to be relocated, provided the Wichita ACO Branch is contacted and provides concurrence.

The FAA disagrees with granting special flight permits if either the visual inspection or the eddy current inspection detects cracking in the carry-thru spar lower cap.

Comment summary: AOPA, Aviation Plus LLC, Cardinal Flyers Online, and numerous individual commenters requested that the compliance time be extended for the visual inspection specified in paragraph (g) of the proposed AD (within 200 hours time-in-service (TIS) or within 12 months after the effective date, whichever occurs first). Four commenters suggested the compliance time be 200 hours TIS or within 12 months after the effective date of the AD, whichever occurs later. Two commenters suggested requiring the visual inspection within 12 months after the effective date of the AD, but not requiring the eddy current inspection required by paragraph (h) of the proposed AD within that timeframe. Several commenters remarked that TIS is more critical than calendar time and requested the FAA remove the 12 month time requirement to complete the visual inspection. One commenter suggested the compliance time be changed to 200 hours TIS or the next annual inspection after the issuance of the AD, whichever occurs first. Two commenters provided additional compliance times, ranging from 36 months or 500 hours TIS to 5 years and 200 hours TIS. Eleven commenters noted that the 12-month calendar limit would make compliance difficult due to limited availability of maintenance facilities and personnel, potentially grounding airplanes. Several commenters raised concerns that there are not enough qualified maintenance facilities to handle the workload of the inspection within a 12-month period, especially given the prohibition on special flight permits and the requirements of an AD for the Piper wing spar.

One commenter mentioned that most Textron Model 177-series airplanes are flown less than 200 hours per year and three commenters identified that no carry-thru spars have failed on the Textron Model 177-series airplanes. The FAA infers that these commenters are thus requesting an increase in the compliance time for the inspections required by this AD.

FAA response: Based on the inspection reports received, the FAA disagrees with extending the compliance times specified in paragraph (g) of this AD. The compliance times specified in this AD correspond with the compliance times published in Textron Aviation Mandatory Single Engine Service Letter, SEL-57-08, Revision 2, dated August 3, 2020 (Textron SEL-57-08R2) and Textron Aviation Single Engine Service Letter SEL-57-09R1, dated August 3, 2020 (Textron SEL-57-09R1). Textron superseded Textron Aviation Mandatory Single Engine Service Letter, SEL-57-07, Revision 1, dated November 19, 2019 (Textron SEL-57-07R1), with Textron SEL-57-09R1, which identifies a compliance time of 200 flight hours or the next annual inspection from date of receipt, of that service letter, whichever occurs first.

The FAA does not agree with a compliance time based solely on usage TIS or on calendar time, nor does the FAA agree that the compliance time should be “200 hours TIS or 12 months, whichever occurs later” after the effective date of this AD. The carry-thru spar is a critical single-load path structure, and if a crack initiates, there could be a catastrophic failure. Corrosion is a function of calendar time and crack growth is a function of hours TIS. The FAA has received reports of severe corrosion on carry-thru spars with less than 4,000 hours TIS and corrosion could initiate cracking in structure with low hours TIS.

The FAA does not agree with revising the compliance time to “200 hours TIS or next annual inspection after the issuance of this AD, whichever occurs first” because if the next annual inspection is due before 12 months after the effective date of this AD that would be more restrictive than the language in the proposed AD, and could occur almost immediately. Operators can always accomplish the actions required by an AD prior to the compliance time specified in an AD.

The FAA has revised paragraph (g)(4) of this AD to allow airplanes without detected corrosion, cracking, or other damage, or evidence of previous corrosion removal to do the eddy current inspection required by paragraph (h) of this AD within 200 hours TIS after the effective date of this AD or within 12 calendar months after the effective date of this AD, whichever occurs first.

The FAA acknowledges both the limitations on the availability of maintenance facilities and personnel capable of completing the inspections required in this AD and the difficulty in meeting the compliance time in paragraph (g) of this AD without the ability to relocate the airplane. The FAA would entertain alternative methods of compliance (AMOCs) to extend the compliance time on a case-by-case basis provided the work was scheduled. If scheduling an eddy current inspection is difficult, an owner, operator, or any interested party can apply for an AMOC using the procedures in paragraph (n) of this AD. The AMOC request must include substantiating data showing that the proposed AMOC provides an acceptable level of safety for a different method or adjustment of the compliance time to address the unsafe condition, other than the one specified in the AD. Also, the FAA has revised paragraph (g)(4) in this AD to allow airplanes without detected corrosion, cracking, or other damage, or evidence of previous corrosion removal to complete the actions required by paragraph (h) of this AD within 200 hours TIS after the effective date of this AD or within 12 months after the effective date of this AD, whichever occurs first. As discussed above in section D., Requests Regarding Special Flight Permits, the FAA has revised paragraph (m) of this AD to allow special flight permits in limited situations.

Comment summary: One commenter requested the FAA explain the differences between the proposed AD requiring an eddy current inspection within one year and the Textron service letter (Textron SEL-57-07) that specified an eddy current inspection for most Model 177-series airplanes at or after 15,000 hours TIS. The FAA infers that the commenter is requesting the compliance time specified in the proposed AD match what is in the Textron SEL-57-07.

FAA response: The FAA agrees that there are differences between the compliance time in the proposed AD and Textron SEL-57-07. Textron Aviation superseded Textron SEL-57-07 with Textron SEL-57-09R1, which specifies a compliance time of 200 flight hours or the next annual inspection from date of receipt, whichever occurs first. Textron SEL-57-09R1 applies to all Model 177-series airplanes identified in this service letter regardless of the total flight hours on the airframe. The compliance time specified in this AD aligns with the compliance time in Textron SEL-57-09R1 and there is no justification for aligning the compliance time with what is specified in the superseded Textron SEL-57-07.

Comment summary: Nine commenters requested that the proposed AD account for an airplane's TIS and one of those commenters noted that the accident airplane had a high number of hours TIS. Three of those commenters suggested a compliance time ranging from 2,500 hours TIS to 12,000 hours TIS. Several commenters cited high costs as justification for only requiring airplanes with a high number of hours TIS to do the actions specified in the proposed AD.

FAA response: The FAA disagrees with limiting the inspections required by this AD to airplanes with a high number of hours TIS. This AD is not based solely on the fatal 2019 accident in Australia involving a Model T210M airplane. As of January 13, 2023, there have been reports of corrosion on 120 Model 177-series airplanes, with at least 14 spars removed from service due to corrosion and damage of the lower cap, including a spar removed from service with less than 2,000 hours TIS. Additionally, 460 Model 210-series airplanes have reported corrosion, with 64 spars removed from service due to corrosion and damage, including five removed from service with less than 3,000 hours TIS. Inspections based on TIS alone are not sufficient to identify and address corrosion, as corrosion is a function of calendar time. Corrosion can serve as a crack initiator, resulting in the spar being unable to carry the required load. Analysis completed by Textron demonstrates this crack growth can happen under typical operation.

Comment summary: One commenter requested that the FAA allow the inspections to be completed when the inspection area is exposed for other maintenance. The FAA infers that the commenter is making this request to reduce costs and airplane down time.

FAA response: The FAA acknowledges the commenter's request to limit maintenance access to reduce the time and money spent to comply with the requirements of this AD. However, the FAA considers this AD to be interim action and is still evaluating what actions must be required when issuing future rulemaking that will be considered final action to address the identified unsafe condition. During this evaluation, the FAA will consider if, for any future rulemaking, compliance times can be developed that correspond with scheduled maintenance; however, for this AD, the FAA does not agree with extending the compliance time for the entire fleet. The compliance time of this AD is within 200 hours TIS or 12 months after the effective date of this AD, whichever occurs first. This compliance time may allow the actions to be accomplished at the same time as regular maintenance, as the requirements of this AD can always be completed early. An owner, operator, or any interested party can apply for an AMOC to propose an adjustment of the compliance time using the procedures in paragraph (n) of this AD. The AMOC request must include substantiating data showing that the proposed AMOC provides an acceptable level of safety for a different method or adjustment of the compliance time to address the unsafe condition, other than the one specified in the AD.

Comment summary: Sixteen commenters requested that the FAA only require the actions specified in the Textron service information. One commenter stated that general aviation is struggling, and due to costs an AD should not require pilots to do any actions beyond those specified in the Textron service information. Two additional commenters mentioned the additional costs of repeating portions of the inspections in areas that differed between the Textron service information and the proposed AD. One commenter stated that the FAA should require the airplane manufacturer to create service information that will preserve the airworthiness of the carry-thru spar so compliance with the service information will count if the service information is included in an AD. Another commenter stated when the FAA overrides manufacturers' service information with ADs airplane owners would become less willing to use the information in future service bulletins because of concern that the FAA would require duplication of the actions in the service bulletins in an AD. One commenter stated that paragraph (g)(2) of the proposed AD negates the directions in paragraph (B)(2) of Textron SEL-57-09R1 because the service letter states to “Make sure to only remove the minimum material necessary to blend the corroded surface with the surrounding surface.”

FAA response: The FAA disagrees that this AD should only require the actions specified in the Textron service information. After reviewing the procedures specified in that service information, the FAA determined that the unsafe condition could not be mitigated using only those procedures. Prior to the publication of the NPRM, the FAA received reports indicating that the visual inspection might not detect corrosion similar to that observed on the accident airplane. The fatigue crack on the accident airplane that caused the catastrophic failure of the carry-thru spar initiated at a corrosion pit approximately 0.011-inch deep. Cracking may be difficult to detect through visual inspection alone since the lower spar cap is in compression during the inspection. The eddy current inspection, however, could detect cracking from undetected corrosion or damage.

The FAA disagrees that paragraph (g)(2) of this AD negates the directions in step 6.B.(2) of the Accomplishment Instruction in Textron SEL-57-09R1. Paragraph (g)(2) of this AD addresses removal or repair of the carry-thru spar due to evidence of previous blending. The FAA agrees with granting credit for blending previously completed using Textron service letters and the FAA acknowledges that owners, operators, and maintenance personnel could have proactively completed the actions described in the Textron service letters. The FAA has revised paragraph (l) of this AD to clarify credit for previous blending completed using the procedures in older revisions of the Textron service letters. Paragraph (f) of this AD already provides credit for blending action completed prior to the effective date of this AD using Textron SEL-57-08R2 or Textron SEL-57-09R1.

The FAA agrees that alignment of a manufacturer's service documents and the requirements of an AD is ideal; however, the FAA cannot mandate a company to issue specific service information. Per 14 CFR 39.27, if an AD conflicts with the service document on which it is based, then the operator must follow the requirements of the AD. Additionally, the Textron service information clearly indicates that the compliance time presented might not apply to modified airplanes, including modifications that alter the airplane's design, gross weight, or airplane performance, including, but not limited to, installation of vortex generators, wing cuffs, short take-off and landing (STOL) kits, wing tips, and add-on wing fuel tanks. The FAA is responsible for considering the effects of these modifications on the airplanes included in the applicability of this AD.

While the FAA cannot mandate that the service information be revised, nor can the agency wait on such information to address the unsafe condition, the FAA may allow an AMOC if the service information is revised and the FAA finds it acceptable to address the unsafe condition. If Textron revises its service information and the FAA determines that the revisions mitigate the unsafe condition, an owner, operator, or any interested party can apply for an AMOC using the procedures in paragraph (n) of this AD. The AMOC request must include substantiating data showing that the proposed AMOC provides an acceptable level of safety for a different method to address the unsafe condition, other than the one specified in the AD.

The FAA has not changed this AD in regard to this issue.

Comment summary: Two individual commenters requested the requirements of the proposed AD be limited to inspections on the lower carry-thru spar cap. Another commenter supported the focus on the lower spar flange but noted that, in the proposed AD, mechanics could miss the statement that limits the scope of the inspection. One commenter acknowledged that the NPRM specified a mechanic is not required to inspect the lower cap to web radius, spar web, upper cap, or lugs, but that nothing excludes a mechanic from taking a spar out of service if any evidence of previous blending in those areas is found.

FAA response: The FAA agrees with the commenter's requests to limit the requirements of this AD to inspections of the lower carry-thru spar cap and finds that, as written, the requirements of this AD are limited to inspections of the carry-thru spar lower cap including the lower surface, upper surface, and edge. As detailed in paragraph (g) of this AD, inspecting the lower cap to web radius, spar web, upper cap, or lugs is not required. The preamble of this AD mentions that actions related to the web, upper caps, and lugs are not included as part of this AD. A mechanic may take a spar out of service during any inspection or maintenance event if the airplane is determined to not be airworthy to return to service.

The FAA has not changed this AD in regard to this issue.

Comment summary: Thirty-five commenters requested that the eddy current inspection of the carry-thru spar specified in paragraph (h) of the proposed AD only be required as an on-condition action when there is visual evidence of corrosion or damage. Three commenters stated that corrosion or cracking on the lower surface of the spar should be readily observable through a detailed visual inspection. Three commenters requested data justifying the eddy current inspection on airplanes that did not exhibit corrosion pitting on the carry-thru spar. One commenter asked why an airplane would need an eddy current inspection if the spar was delivered with a factory-applied protective coating, is clean and dry, and is not operated in an environment subject to moisture or other corrosion causing elements. Another commenter noted that over 300 visual inspections were completed on Model 177-series airplanes since the FAA identified this as a potential concern and none of the reports indicated that cracking was found. A different commenter requested that the FAA explain why it proposed expanding Textron's inspection requirements, which only specified eddy current inspections of the carry-thru spars if there were visual signs of corrosion, and asked if the FAA had significant evidence or engineering information indicating there could be internal corrosion or cracking even though it's not visible on the surface. One commenter stated that interpretation of the eddy current inspection results can be subjective. Two commenters requested requiring repetitive visual inspections instead of the eddy current inspection.

FAA's response: The FAA disagrees with the commenters' requests to make the eddy current inspection an on-condition action in this AD or to only require repetitive visual inspections. Prior to the publication of the NPRM, the FAA reviewed inspection reports and determined that the visual inspection might not detect corrosion. On the Model T210M airplane involved in the accident that prompted the NPRM, the fatigue crack initiated at a corrosion pit approximately 0.011-inch deep. Cracking could be difficult to detect by only a visual inspection since the lower spar cap is in compression during that inspection, and the eddy current inspection could detect cracking from undetected corrosion or damage. The FAA acknowledges that it has not received any reports of cracking in the carry-thru spar lower cap on Model 177-series airplanes; however, out of the 211 inspection reports received by the FAA as of January 13, 2023, there have been 120 reports of corrosion and at least 14 carry-thru spars have been removed from service due to corrosion or damage.

This AD requires that the technician completing the eddy current inspection be appropriately qualified as detailed in Textron Aviation Mandatory Service Letters SEL-57-08, Revision 2; and SEL-57-09, Revision 1.

The FAA has not changed this AD in regard to this issue.

Comment summary: Several individual commenters expressed concern regarding the limited number of inspectors qualified and available of performing the eddy current inspection specified in the proposed AD. The commenters explained that it is difficult to locate qualified eddy current inspectors and for many airplane owners the inspectors are not local. One commenter requested that the FAA research how many facilities are willing to do the actions specified in the proposed AD and identify the lead time for scheduling the work.

FAA response: The FAA acknowledges that finding a person or facility qualified to do an eddy current inspection could be difficult in some geographic regions. While the FAA does not maintain a comprehensive listing of all repair stations capable of completing the specific eddy current inspections required by this AD, you may search for a repair station by location and rating on the FAA website: av-info.faa.gov/repairstation.asp. The FAA has no way to accurately determine any specific facility's willingness and scheduling availability to complete work at a given time.

As discussed above in section D., Requests Regarding Special Flight Permits, the FAA revised paragraph (m) of this AD to allow special flight permits with limitations. If scheduling an eddy current inspection is difficult, an owner, operator, or any interested party can apply for an AMOC using the procedures in paragraph (n) of this AD. The AMOC request must include substantiating data showing that the proposed AMOC provides an acceptable level of safety for a different method or adjustment of the compliance time to address the unsafe condition, other than the one specified in the AD. Also, the FAA has revised paragraph (g)(4) in this AD to allow airplanes without detected corrosion, cracking, or other damage, or evidence of previous corrosion removal to complete the actions required by paragraph (h) of this AD within 200 hours TIS after the effective date of this AD or within 12 months after the effective date of this AD, whichever occurs first.

Comment summary: Three individual commenters requested that the proposed AD include repetitive inspections. One of the commenters requested requiring repetitive inspections instead of replacing carry-thru spars that fail the inspection but do not have evidence of cracking. One of the commenters agreed that spars with cracking should be removed from service but a questionable spar with no cracking should be repetitively inspected instead of removed.

FAA response: The FAA agrees that repetitive inspections might be appropriate for future rulemaking. The FAA considers this AD to be interim action and is still evaluating what actions must be required if future rulemaking is issued that will be considered final action. If the FAA determines that repetitive inspections are necessary, then they could be included as a requirement. Adding new requirements to this AD would require public comment before adopting a final rule, and would require publishing a supplemental NPRM. Because of the identified unsafe condition, the FAA does not agree to delay this AD.

The FAA does not have data to support allowing carry-thru spars with excessive material removed to remain in service, even if they are repetitively inspected; however, the FAA would consider permitting individual carry-thru spars to remain in service and be repetitively inspected if an owner, operator, or any interested party applies for an AMOC using the procedures in paragraph (n) of this AD and includes substantiating data showing that the proposed AMOC provides an acceptable level of safety.

The FAA has not changed this AD in regard to this issue.

Comment summary: Textron requested that paragraphs (h)(3) and (4) of the proposed AD, which address corrective actions for spars with damage or corrosion, be removed. Textron stated that these paragraphs are redundant because the inspection and rework specified in paragraph (g) of the proposed AD would have already addressed these actions.

FAA response: The FAA does not agree because paragraphs (h)(3) and (4) of this AD provide directions for what to do if damage or corrosion are detected during the eddy current inspection required by paragraph (h) of this AD. Paragraph (g) of this AD requires a visual inspection with a 10X magnification lens looking for corrosion, cracking, and damage and provides directions for what to do if damage or corrosion are found during the visual inspection.

The FAA has not changed this AD in regard to this issue.

Comment summary: An individual commenter stated that applying corrosion coating would be costly and disruptive for parts that do not need corrosion prevention. The FAA infers that the commenter is requesting that the requirement to apply corrosion coatings specified in the proposed AD be removed.

FAA response: The FAA disagrees that the requirement in paragraph (i) of this AD to apply primer and CIC should be removed. Applying primer and CIC prevents corrosion and reduces the potential for crack initiation from corrosion. The carry-thru spar is a critical single load path structure with a demonstrated corrosion issue. Failure to sufficiently protect the structure from repeated corrosion increases the likelihood of additional cracking.

The FAA has not changed this AD in regard to this issue.

Comment summary: AOPA, Cardinal Flyers Online, and several individual commenters requested that the proposed AD be revised to either give credit for previous blending done before the effective date of the final rule or to clarify what previous blending is acceptable. Three commenters requested that the proposed AD be revised to provide credit for carry-thru spars that were blended using the procedures specified in the Textron service letters instead of the requirement to replace a carry-thru spar or repair it using an AMOC. Ten commenters requested that the proposed AD be revised to allow previous blending of a carry-thru spar that is within the limits specified in the Textron service letters, even if the blending was not done using the procedures in the service letters. One commenter stated that it is unreasonable to require removal from service of a carry-thru spar with evidence of factory cleanup. The FAA infers that this commenter is requesting that carry-thru spars that have evidence of prior blending be permitted to remain in service.

Three commenters stated that, in the proposed AD, the language was unclear regarding corrosion removed prior to the effective date of the AD using the procedures in the Textron service letters. Paragraph (g)(2) of the proposed AD would require that carry-thru spars with evidence of previous blending either be removed from service or repaired using an AMOC. The commenters noted that paragraph (l) of the proposed AD does grant credit for the visual inspection required by paragraph (g) of the proposed AD, but does not clearly identify if credit is allowed for any previous corrosion removal completed as a result of the visual inspection required by paragraph (g) of the proposed AD.

Multiple commenters requested that the FAA provide credit for previous corrosion removal, even if logbook records are used. Commenters also raised the concern that owners who have made an effort to maintain a carry-thru spar in good condition would be penalized if the final rule fails to give credit for previous blending accomplished using the procedures in Textron SEL-57-08R2, or Textron SEL-57-09R1, as specified in paragraph (g) of the proposed AD. Ten commenters stated that previous blending should be covered by paragraph (g)(3) of the proposed AD and that all previous corrosion removal that does not exceed the blend limits specified in Textron SEL-57-08R2 and Textron SEL-57-09R1 should be permitted. Several commenters stated that the language in paragraph (l) of the proposed AD was as ambiguous and may penalize those parties who took action prior to publication of the final rule. Several commenters stated that most carry-thru spars were blended to some extent at the factory and that other carry-thru spars were blended using guidance from Textron.

To justify allowing the blended carry-thru spars to remain in service, one commenter provided information from an industry forum and from experience working with cast aluminum to support the view that Cessna blended carry-thru spars prior to delivery. This same commenter also cited concerns regarding the time needed to obtain an AMOC.

FAA response: The FAA partially agrees with the commenters' requests. The FAA agrees with granting credit for the blending of carry-thru spars completed prior to the effective date of this AD using Textron SEL-57-08R2 and Textron SEL-57-09R1, and the FAA acknowledges that some owners, operators, and maintenance personnel proactively complied with the procedures in that service information; however, compliance with previous actions is already addressed and no change is needed to this AD because paragraph (f) of this AD states “Comply with this AD within the compliance times specified, unless already done.”

The FAA also agrees to revise paragraphs (l)(1) and (2) of this AD to clarify that owners and operators may take credit for corrosion removal (blending) completed before the effective date of this AD using the procedures in Textron Aviation Mandatory Single Engine Service Letter SEL-57-08, dated November 1, 2019 (Textron SEL-57-08); Textron Aviation Mandatory Single Engine Service Letter SEL-57-08, Revision 1, dated November 19, 2019 (Textron SEL-57-08R1); Textron Aviation Mandatory Single Service Letter SEL-57-09, dated November 19, 2019 (Textron SEL-57-09); Textron SEL-57-06; Textron Aviation Mandatory Single Engine Service Letter SEL-57-06, Revision 1, dated November 19, 2019 (Textron SEL-57-06R1); Textron SEL-57-07; or Textron SEL-57-07R1.

The FAA disagrees allowing credit for blending completed prior to the release of Textron SEL-57-06 and Textron SEL-57-07 without an evaluation and a repair approved as an AMOC. While the FAA does not have data supporting that Cessna blended the forged carry-thru spars prior to delivery, the FAA does recognize that some carry-thru spars were blended prior to publication of the NPRM. Blend limits, blend ratios, and surface finish must be addressed in the AMOC request. Locations previously blended that are included in the AMOC request will still be required to complete the eddy current inspection or provide evidence of previous completion.

Comment summary: Ten individual commenters requested clarification regarding credit for previous actions. Four commenters stated that paragraph (l) in the proposed AD was unclear. Seven commenters requested the FAA give credit for previous actions and not require that the actions be duplicated. One commenter stated that the proposed AD should provide full credit for any previous corrosion remediation performed using accepted maintenance procedures, so owners who previously addressed corrosion on their airplane are not punished.

FAA response: The FAA agrees that credit should be granted for work previously accomplished using the procedures in the Textron service letters and, as stated previously, the FAA has revised paragraph (l) of this AD to clarify that owners and operators may take credit for previously accomplished visual inspections and corrosion removal if completed in accordance with Textron service letters. The FAA finds that owners and operators are not being required to duplicate actions because paragraph (f) of this AD states “Comply with this AD within the compliance times specified, unless already done;” therefore, compliance for previous actions is granted to those who completed the required actions prior to the effective date of this AD in accordance with the applicable steps of the Accomplishment Instructions in Textron SEL-57-08R2 and Textron SEL-57-09R1.

Operators that performed repairs using accepted maintenance practices other than the Textron service letters must apply for an AMOC.

Comment summary: One commenter requested clarification regarding what kinds of carry-thru spar repairs the FAA would approve through the AMOC process. The commenter stated that paragraph (o) of the proposed AD did not identify what kind of repairs might be acceptable and that the proposed AD left the decision for acceptable AMOCs to Textron, even though the FAA says Textron's corrective action identified in Textron SEL-57-09R1 is not adequate. The commenter explained that the lack of definition in paragraph (o) of the proposed AD regarding acceptable repairs makes it difficult for owners to estimate the condition of their carry-thru spars.

FAA response: The FAA disagrees that paragraph (n) of this AD (paragraph (o) in the proposed AD), requires clarification. The FAA has defined an acceptable repair based on available data. If the FAA knew of additional standard repairs, then those repairs would have been reviewed and, if found acceptable, included in this AD.

This AD specifies the same material removal limits as those identified in Textron SEL-57-09R1. It is possible that spars with damage that cannot be removed within the limits identified in Table 1 of Textron SEL-57-09R1 could still be found acceptable based on further evaluation. A repair on a carry-thru spar for which the material removed exceeds that identified in Table 1 of Textron SEL-57-09 would require an AMOC. Generally, the FAA, not Textron, must approve AMOCs; however, in this AD the FAA has delegated to Textron's Organization Designation Authorization the authority to evaluate carry-thru spars with material removal beyond that identified in Textron SEL-57-09R1 to salvage as many spars as possible. Textron might choose not to evaluate modified airplanes, as detailed in Textron SEL-57-09R1 and Textron SEL-57-08R2. Additionally, there is no requirement for an operator to have its spar evaluated by Textron. The owner or operator may develop its own AMOC request to present to the FAA for evaluation of any repair for which there is substantiating data.

The FAA would not limit AMOC options by defining those that are acceptable, as it is unrealistic for the FAA to preemptively identify and evaluate any potential AMOC option that may or may not be applicable to an airplane.

The FAA has not changed this AD in regard to this issue.

Comment summary: Cardinal Flyers Online and four individual commenters requested that instead of the eddy current inspection a visual inspection be allowed with the airplane on jacks. The commenters explained that putting the wings on jacks would place the lower spar cap in tension, allowing cracking to be seen more readily during the visual inspection. One commenter proposed using a dye penetrant inspection in addition to supporting the wings with jacks.

FAA response: The FAA acknowledges that other inspection methods could be used for the carry-thru spar inspection; however, the FAA does not have data to support including these alternative inspection methods in this AD. An owner, operator, or any interested party may develop inspection procedures and submit an AMOC request to the FAA along with substantiating data showing that the proposed AMOC addresses the unsafe condition with an acceptable level of safety.

The FAA has not changed this AD in regard to this issue.

Comment summary: Three commenters requested that the proposed AD allow for alternative corrosion protection options in addition to those specified in the proposed AD. Two of those commenters stated that the corrosion coatings specified in the proposed AD need to be expanded to include other products typically used in aviation and not just those identified by Textron. One commenter stated that a carry-thru spar that has been fully anodized and inspected should be equivalent to or better than a carry-thru spar with coating applied.

FAA response: The FAA agrees that alternative coating options could be acceptable. Using the procedures in paragraph (n) of this AD an owner, operator, or any interested party is welcome to identify an alternative coating and submit an AMOC request to the FAA along with substantiating data showing that the proposed AMOC addresses the unsafe condition with an acceptable level of safety.

Comment summary: Eight commenters requested the FAA increase the cost per hour estimates for the labor rate because $85 per work-hour is too low, does not reflect the true rate of labor, and is not attainable. One commenter requested that the FAA publish the method used to derive the hourly rate charged by maintenance shops.

FAA response: The FAA partially agrees with the commenters' requests. The FAA Office of Aviation Policy and Plans provides the labor rate of $85 per work-hour to use when estimating the labor costs of complying with the AD requirements. The FAA does agree to alter the estimated cost of the eddy current inspection from $85 per work-hour to a flat rate of $600 for one work-hour of contracted service to more accurately reflect the cost of eddy current inspection. The FAA revised the estimated costs and on-conditions costs tables in this AD to account for the $600 per work-hour contracted service associated with the eddy current inspection.

Comment summary: Aviation Plus LLC and several individual commenters requested that the FAA increase the estimated number of work-hours for doing the carry-thru spar inspections because the estimated work-hours specified in the NPRM are too low and do not include on-condition costs for removing the oxygen systems and air conditioning systems for access to the inspection area. Two commenters stated that the costs to remove the airplane interior for access to do the inspections are not accurate. One commenter wanted to know the source of the estimated work-hours.

Eleven commenters requested that the proposed estimated cost for the eddy current inspection be increased and noted that the cost should include travel time to the grounded airplane or the cost to bring the eddy current inspector to the airplane.

One of these commenters stated that a flat rate is usually charged for an eddy current inspection, and four of these commenters stated that the cost range is usually between $400 and $1,000. The commenters provided various reasons for their requests.

FAA response: The FAA agrees that some of the estimated costs in this AD should be revised.

Textron provided the original estimated work-hours for preparing, inspecting, and reassembling an airplane. The FAA observed inspections completed by maintenance facilities and verified the personnel were able to complete the work within the estimates provided by Textron Aviation. The FAA acknowledges there is variability in the time necessary to complete the work, depending on a number of factors including airplane configuration and condition and the experience and capabilities of the individual(s) performing the work. The cost estimates provided in the NPRM did not include travel time to the grounded airplane or the cost to bring the eddy current inspector to the airplane.

The FAA partially agrees with the commenters' requests and has increased the estimated work-hours from 12 hours to 20 hours for removing and reinstalling the interior, removing the foam as applicable, and preparing the spar for visual and eddy current inspections. Additionally, in the Estimated costs table in this final rule the FAA has separated the eddy current inspection of the cap kick area into a separate line item with an estimate of $600 for contracted service work-hours and in the On-condition costs table included a line item for the on-condition eddy current inspection required due to corrosion or damage with an estimate of $600 for contracted service work-hours. Furthermore, the FAA added an additional line item that includes 5 work-hours for airplanes equipped with oxygen bottles and an additional line item that includes 3 work-hours for airplanes equipped with air conditioning.

Comment summary: Four commenters discussed the availability and cost of replacement carry-thru spars. The commenters wanted to know how the FAA determined the estimate of $30,000 for a replacement carry-thru spar. Another commenter stated that replacement carry-thru spars are not available from the manufacturer and the cost estimate for a replacement spar is low. The FAA infers that these commenters are requesting that the cost estimate for a replacement carry-thru spar be increased.

FAA's response: Textron provided the $30,000 cost estimate for a replacement carry-thru spar and has informed the FAA of its intention to start producing replacement carry-thru spars for Model 177-series airplanes. Textron is currently producing replacement carry-thru spars for Model 210-series airplanes, with a current cost of $21,367 for part number (P/N) 1210721-1 and $19,999 for P/N 2110020-1. The FAA revised the cost for a replacement carry-thru spar for Model 210-series airplanes to reflect these actual part costs.

Comment summary: One commenter requested that Textron share the costs of the inspections. The commenter explained that the corrosion issue exists because of Textron's carry-thru spar design, which permits leaking and condensation, and because Textron did not apply anti-corrosion coatings during manufacture.

FAA response: The FAA has no authority to enforce business contracts (actual or implied) between parties. The primary concern the FAA has when issuing an AD is addressing unsafe conditions on various aircraft flying in the United States. The FAA provides estimated costs information for complying with the requirements of an AD but does not control warranty coverage and cannot mandate that a manufacturer cover all associated costs.

The FAA has not changed the AD in regard to this issue.

Comment summary: Ten individual commenters requested that the proposed AD not require the removal of previously applied primer and CIC. The commenters stated that removing the previously applied primer and CIC could damage the carry-thru spar and would result in duplication of effort, increase in cost, and lack of credit granted for previous actions.

FAA response: The FAA agrees with the commenters' requests and this AD does not require removing properly applied primer and CIC that is in good condition. Paragraph (l) of this AD provides credit for previous actions, including the application of primer and CIC.

The FAA has not changed this AD in regard to this issue.

Comment summary: One commenter asked how much force is needed to break a carry-thru spar that does not pass an eddy current inspection.

FAA response: The FAA has no way of knowing precisely how much force would be required to break a carry-thru spar for which an eddy current inspection identified a response as detailed in Textron Aviation Mandatory Service Letters SEL-57-08R2 or SEL-57-09R1. The residual strength capability of the carry-thru spar is dependent on the type and amount of damage located on the part, as well as the specific geometry of the part.

The FAA has not changed this AD in regard to this issue.

Comment summary: Two commenters requested that the FAA only require carry-thru spar replacement if absolutely necessary. The commenters explained that replacing a carry-thru spar could introduce additional safety issues because this action requires disassembling and reassembling major components, including the airframe, partial fuel and electrical systems, control systems, and structural repairs. One of the commenters mentioned that replacement carry-thru spars are difficult to find.

FAA response: The FAA acknowledges that replacing a carry-thru spar is a significant and costly effort and could be difficult to find. The FAA encourages owners, operators, and any interested party to pursue repair options prior to replacing an affected carry-thru spar and has provided a means to apply for an AMOC using the procedures provided in paragraph (n) of this AD. The FAA has not changed this AD in regard to this issue.

Comment summary: Two individual commenters requested that the proposed AD specify the minimum acceptable part thickness after a carry-thru spar is reworked instead of setting a limit on the maximum amount of material that can be removed during rework. One commenter stated that the carry-thru spars were not manufactured with tight tolerances and could be thicker than the specification, allowing for more material to be removed. The other commenter stated that measuring the amount of material removed could be difficult if blending was done over a large area and suggested using data previously released by Textron that specified thickness limits for various stations along the spar.

FAA response: The FAA agrees that for Model 210- and 177-series airplanes, the forged 2014-T6 aluminum carry-thru spars have a wide range of manufacturing tolerances, both above and below the dimensions identified in the design data. The FAA also agrees that additional material, beyond that identified in Table 1 of Textron SEL-57-08R2 and Textron SEL-57-09R1, may be removed on some spars. However, the amount of additional material that can be removed varies from one spar to another and must be evaluated on an individual basis.

The FAA determined that applying the thickness limits identified in data previously released by Textron for various stations along the spar must be evaluated on an individual airplane basis, as that information was not originally developed to address the unsafe condition identified in this AD. The FAA encourages an owner, operator, or interested party with a corroded or damaged carry-thru spar that exceed the limits identified in Table 1 of Textron SEL-57-08R2 and Textron SEL-57-09R1 to apply for an AMOC using the procedures in paragraph (n) of this AD. The AMOC request must include substantiating data showing that the proposed AMOC addresses the unsafe condition with an acceptable level of safety.

The FAA agrees that measuring the amount of material removed may be challenging and Textron provided suggestions for measuring the amount of material removed in step 6.B.(8) of the Accomplishment Instructions in Textron SEL-57-08R2 and Textron SEL-57-09R1. Additional guidance may be obtained by contacting Textron as detailed in paragraph (n)(3) of this AD.

The FAA has not changed this AD in regard to this issue.

Comment summary: One commenter suggested that the FAA find a solution to address the unsafe condition identified in the NPRM that promotes reliability centered maintenance (RCM). The commenter explained that RCM is a concept of maintenance planning to ensure that systems continue to do what their users require in their present operating context. Successful implementation of RCM will lead to increase in cost effectiveness, reliability, machine uptime, and a greater understanding of the level of risk that the organization is managing. The commenter stated that blanket ADs cost the general aviation community millions of dollars but do not increase safety, instead they increase risk by requiring unnecessary and invasive maintenance.

FAA response: The FAA lacks sufficient substantiating data to allow RCM for this AD. An owner, operator, or interested party can request to use RCM by applying for an AMOC using the procedures in paragraph (n) of this AD. The AMOC request must include substantiating data showing that the proposed AMOC addresses the unsafe condition with an acceptable level of safety.

The FAA has not changed this AD in regard to this issue.

Comment summary: One commenter stated that the tubing corrosion issue only applies to a few airplanes rather than the entire fleet. The commenter did not request a change to the NPRM.

FAA response: Corrosion associated with tubing usually occurs in the web of the carry-thru spar, and this AD only requires inspecting the carry-thru spar lower cap. Although this AD does not specifically apply to corrosion associated with tubing, any corrosion found on the carry-thru spar lower cap, regardless of origin, is required to be addressed.

The FAA has not changed this AD in regard to this issue.

The FAA did not carry over paragraph (l)(4) from the Credit for Previous Actions paragraph in the proposed AD into this AD. The FAA did not take away credit but removed a restriction. In the proposed AD, paragraph (l)(4) specified that, to receive credit, the protective coating and CIC had to have been applied to the airplane within 24 months after the date of completing the visual and eddy current inspection or within 12 months after the effective date of the AD, whichever occurs first. By the effective date of this final rule many airplanes will have completed the visual and eddy current inspections longer than 24 months ago. The airplanes in the applicability of this AD are not as likely to develop corrosion as the Model 210G through Model 210M airplanes that were included in the applicability of AD 2020-03-16 (the immediately adopted rule discussed previously), so the FAA determined that the requirement of corrosion application within 24 months after the visual and eddy current inspections was not necessary. The FAA did not want to penalize operators who had already completed the eddy current inspection by requiring they do the inspection again because they were outside of the 24-month limit. However, the requirement in paragraph (i) of this AD that CIC must be applied within 12 months after the effective date of this AD is unchanged.

Paragraph (h) of the proposed AD did not have explicit compliance times for completing the eddy current inspections, relying on paragraph (g) for the applicable compliance times for the eddy current inspections. For clarity, paragraph (h) now points to paragraph (g) for compliance times.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for the changes discussed previously, omitting the Paperwork Reduction Act Burden Statement, paragraph (n) in the proposed AD, and reidentifying the subsequent paragraphs, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed the following service documents:

• Textron Aviation Mandatory Single Engine Service Letter, SEL-57-08, Revision 2, dated August 3, 2020 (Textron SEL-57-08R2); and

• Textron Aviation Mandatory Single Engine Service Letter, SEL-57-09, Revision 1, dated August 3, 2020 (Textron SEL-57-09R1).

For the applicable airplanes specified, these service letters contain instructions for visually inspecting the carry-thru spar for corrosion, damage, and cracking and for completing an eddy current inspection. This service information also specifies applying protective coating and CIC.

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

The FAA reviewed the following service letters related to this AD which, for the applicable airplanes specified, contain instructions for visually inspecting the carry-thru spar for corrosion and doing an eddy current inspection of the carry-thru spar regardless of whether corrosion was found and removed. This service information also contains instructions for applying CIC, but does not specify applying protective coating.

• Textron Aviation Mandatory Single Engine Service Letter, SEL-57-06, dated June 24, 2019 (Textron SEL-57-06);

• Textron Aviation Mandatory Single Engine Service Letter, SEL-57-06, Revision 1, dated November 19, 2019;

• Textron Aviation Mandatory Single Engine Service Letter, SEL-57-07, dated June 24, 2019 (Textron SEL-57-07); and

• Textron Aviation Mandatory Single Engine Service Letter, SEL-57-07, Revision 1, dated November 19, 2019.

The FAA also reviewed the service letters listed below related to this AD, which, for the applicable airplanes specified, contain the same instructions and repair criteria as Textron SEL-57-08R2 and Textron SEL-57-09R1.

• Textron Aviation Mandatory Single Engine Service Letter, SEL-57-08, dated November 1, 2019;

• Textron Aviation Mandatory Single Engine Service Letter, SEL-57-08, Revision 1, dated November 19, 2019; and

• Textron Aviation Mandatory Single Engine Service Letter, SEL-57-09, dated November 19, 2019.

• Although Textron SEL-57-08R2 also applies to Models 210G, T210G, 210H, T210H, 210J, T210J, 210K, T210K, 210L, T210L, 210M, and T210M airplanes, this AD does not. The FAA issued AD 2020-03-16 to address the immediate safety of flight for those airplanes.

• Textron SEL-57-08R2 and Textron SEL-57-09R1 specify inspecting all interior surfaces of the carry-thru spar; additionally, Textron SEL-57-09R1 specifies inspecting the lower surface of the outboard spar to wing attach lugs. This AD only requires inspecting the carry-thru spar lower cap, including the lower surface, edge, and upper surface of the lower cap. While the web, upper cap, and lugs of the carry-thru spar may be susceptible to corrosion, evidence does not support including inspection of these areas as part of this AD. The FAA will continue to monitor reports of corrosion on all areas of the carry-thru spar for potential future action.

• Textron SEL-57-08R2 and Textron SEL-57-09R1 do not specify an eddy current inspection on the carry-thru spar unless the amount of material removed in the blended area exceeds 0.010-inch deep but is within limits. This AD requires an eddy current inspection of all locations on the carry-thru spar lower cap where corrosion was removed. The fatigue crack on the Model T210M airplane that suffered the fatal in-flight break-up initiated from a corrosion pit approximately 0.011-inch deep in the lower cap kick area. The visual and less restrictive eddy current inspection requirements specified in Textron SEL-57-08R2 and Textron SEL-57-09R1 could miss similar fatigue cracking on airplanes currently operating in the field.

• Textron SEL-57-08R2 and Textron SEL-57-09R1 only specify an eddy current inspection of the lower cap kick of the carry-thru spar if corrosion is identified on the carry-thru spar cap. This AD requires a one-time eddy current inspection of the lower cap kick area of all affected airplanes, regardless of the results of the visual inspection. The fatigue crack on the Model T210M airplane that suffered the fatal in-flight break-up initiated in the lower cap kick area. Cracking and corrosion damage may be difficult to identify through visual inspection alone. The FAA will use the results of the one-time eddy current inspection of the lower cap kick area, in part, to determine the necessity of future rulemaking action.

• Textron SEL-57-08R2 and Textron SEL-57-09R1 specify contacting Textron for evaluation and disposition of certain damage. Instead, this AD requires removing the carry-thru spar from service or repairing it (if possible) in accordance with the AMOC procedures identified in paragraph (n) of this AD. Operators should work with Textron to develop a repair in support of an AMOC request.

• Textron SEL-57-08 R2 and Textron SEL-57-09R1 provide instruction allowing airplanes that have complied with Textron SEL-57-06 or Textron SEL-57-07 to complete the application of the protective coating and CIC within 200 flight hours or at the next annual inspection, whichever occurs first. This AD permits applying protective coating and CIC within 12 months after the effective date of this AD.

The FAA considers this AD to be an interim action. This AD requires one-time visual and eddy current inspections of the carry-thru spar lower cap for corrosion, cracking, and damage, corrective action if necessary, applying a protective coating and CIC, and reporting the inspection results to the FAA. The FAA will analyze the inspection results received to determine further rulemaking action.

The FAA estimates that this AD affects 3,421 airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary repairs or replacements that would be required based on the results of the proposed inspection. The agency has no way of determining the number of aircraft that might need these actions:

The amount of work-hours necessary to complete the eddy current inspection and corrosion removal will depend on the extent of the corrosion on the carry-thru spar. The FAA has no way of estimating the work-hours that may be required for those procedures. The FAA's cost estimate assumes a minimum of one hour contracted service for the eddy current inspection and two hours for the corrosion removal. If the operator needs an AMOC for repair, the FAA has no way of estimating the extent of damage or follow-on eddy current inspection that may be required. The FAA has no way of estimating the potential cost of those actions.

Replacement carry-thru spars are not currently available from Textron for Model 177-series airplanes. Textron no longer produces the current carry-thru spar design and is developing a new design. The FAA does not have data to determine the availability of replacement carry-thru spars from other sources.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to take approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2007-10-04, Amendment 39-15045 (72 FR 25960, May 8, 2007) (AD 2007-10-04). AD 2007-10-04 applied to all McDonnell Douglas Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), and MD-88 airplanes. The NPRM published in the Federal Register on September 15, 2022 (87 FR 56593). The NPRM was prompted by the determination that certain compliance times and repetitive intervals must be reduced for the high frequency eddy current (HFEC) surface and open hole inspections of the rear spar upper caps. The FAA received a report from Boeing of a crack found along fasteners in the upper rear spar that was longer than two inches during an inspection of the horizontal rear spar upper cap on a Model DC-9-82 (MD-82) airplane with 69,799 flight hours and 38,520 flight cycles. The crack was discovered prior to the compliance time intervals for the repetitive inspections required by AD 2007-10-04; it was determined that certain compliance times do not provide at least two opportunities to reliably detect dual origin cracks before they reach critical length.

In addition, since the FAA issued AD 2007-10-04, the legal name of the manufacturer has been changed from McDonnell Douglas Corporation to The Boeing Company on the most recent type certificate data sheet for the affected airplane models.

In the NPRM, the FAA proposed to continue to require the actions specified in AD 2007-10-04, with revised compliance times for certain actions. The FAA is issuing this AD to detect and correct cracks in the upper and lower aft skin panels and rear spar upper caps, which, if not corrected, could lead to the loss of overall structural integrity of the horizontal stabilizer.

The FAA received comments from one commenter, Boeing. The following presents the comments received on the NPRM and the FAA's response to each comment.

Boeing requested that the FAA revise the description of the service information in the “Related Service Information under 1 CFR part 51” paragraph in the NPRM. The paragraph in the NPRM reads as follows: “Corrective actions include stop drilling the end of the crack, trimming out the crack and installing filler, installing a horizontal stabilizer upper and lower aft skin panel splice, replacing the horizontal stabilizer upper and lower aft skin panel, installing bushings and cold working holes, removing the crack and performing a repair, replacing the horizontal stabilizer rear spar upper cap splice, and replacing the splice repair with a new horizontal stabilizer rear spar upper cap.” Boeing suggested the FAA revise the text to read: “Corrective actions to the horizontal stabilizer skin panel upper and lower aft skin panel include options for (1) stop drilling the end of the crack or trimming out the crack, and then doing a skin splice repair or replacing the skin at the given compliance time, (2) installing a skin panel splice, or (3) replacing the skin panel. Corrective actions to the horizontal stabilizer rear spar upper cap include options for (1) enlarging the hole to remove the crack, (2) performing a cap splice repair, (3) performing a cap splice repair and cold-working certain holes, (4) performing a cap replacement, or (5) performing a cap replacement and cold-working certain holes.” Boeing reasoned that the revised text would distinguish between corrective actions specifically for skins and those for spar cap, per the Boeing Service Bulletin, and would also clarify that replacing a temporarily repaired structure is applicable only to the skin panel and not the spar cap; a repaired spar cap is inspected repetitively.

The FAA agrees and revised the “Related Service Information under 1 CFR part 51” paragraph in the final rule as requested.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Boeing Alert Service Bulletin MD80-55A065, Revision 2, dated October 11, 2021. This service information specifies procedures for repetitive eddy current inspections (HFEC or low frequency eddy current inspections, as applicable) of the horizontal stabilizer; and applicable corrective actions. Corrective actions to the horizontal stabilizer skin panel upper and lower aft skin panel include options for (1) stop drilling the end of the crack or trimming out the crack, and then doing a skin splice repair or replacing the skin at the given compliance time, (2) installing a skin panel splice, or (3) replacing the skin panel. Corrective actions to the horizontal stabilizer rear spar upper cap include options for (1) enlarging the hole to remove the crack, (2) performing a cap splice repair, (3) performing a cap splice repair and cold-working certain holes, (4) performing a cap replacement, or (5) performing a cap replacement and cold-working certain holes.

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

The FAA estimates that this AD affects 22 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary corrective actions ( e.g., repairs, replacements, installation) that would be required based on the results of the inspection. The FAA has no way of determining the number of aircraft that might need these corrective actions:

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

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

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

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

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

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

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

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

In 1936, Congress enacted an amendment to the Indian Reorganization Act (25 U.S.C. 5108), (Alaska IRA) to allow groups of Indians in Alaska, not previously recognized as bands or tribes by the United States, to organize under the IRA, provided they could demonstrate “a common bond of occupation, or association, or residence within a well-defined neighborhood, community or rural district.” See 25 U.S.C. 473a. In 1937, the Department of the Interior Secretary Harold Ickes approved “Instructions” describing the general characteristics of entities that may organize under the Alaska IRA and the procedural requirements for organizing such entities, but do not address the question of eligibility or the factors that should be considered in determining an entity's eligibility to organize under the Alaska IRA.

This policy guidance clarifies the criteria and procedures for evaluating petitions for organization under the Alaska IRA and supersedes all prior guidance issued on the same subject. In particular, this guidance supersedes the “Instructions” approved by Department of the Interior Secretary Harold Ickes in 1937.

The criteria and procedures outlined in this policy guidance are intended to guide the Department in making consistent, substantive determinations as to whether an entity is eligible to organize under the Alaska IRA. The Alaska IRA establishes a “common bond” basis of organization for certain entities in Alaska, but is otherwise silent on the question of eligibility and gives no clear direction as to the Department's statutory responsibilities under the provision. This guidance proposes establishing a process for determining eligibility in a manner consistent with Federal Indian law and policy.

This process begins with the submission of an Alaska IRA petition to the Office of the Assistant Secretary—Indian Affairs (Office of the AS-IA). The Office of the AS-IA then reviews the petition. If Assistant Secretary—Indian Affairs (AS-IA) determines that a petitioning group satisfies the criteria established below and is eligible to organize under the Alaska IRA, the group will be included on the next list of federally recognized Indian tribes and can proceed with conducting a Secretarial election under 25 CFR part 81. A favorable determination of eligibility thus results in Federal recognition as an Indian tribe and entitles the group to interact with the United States on a government-to-government basis.

By recognizing that organization is a step that necessarily follows, rather than precedes, Federal recognition, this policy guidance brings the Alaska IRA in line with the Department's current practices and the modern notion of Tribal “organization” under the IRA. See 25 CFR part 81 (establishing the Department's procedures for conducting Secretarial elections under the IRA and other laws, which apply exclusively to federally recognized Indian tribes). The criteria in this policy guidance is accordingly designed to ensure that a group seeking to organize under the Alaska IRA is a socio-political entity capable of maintaining a government-to-government relationship with the United States, and that only those entities entitled to Federal recognition are being organized under the Alaska IRA. See H. Rep. No. 103-781 (1994) (explaining that Federal recognition is “[a] formal political act” that “permanently establishes a government-to-government relationship between the United States and the recognized tribe as a ‘domestic dependent nation,’ ” and “institutionalizes the tribe's quasi-sovereign status”).

The Department is issuing these criteria and procedures under 25 CFR part 81 and its authority over the management of all Indian Affairs under 25 U.S.C. 2.

The Department will apply the following criteria in evaluating requests for organization under the Alaska IRA, taking into account historical situations and time periods for which evidence is demonstrably limited or not available. Given the unique conditions in Alaska, the Department will evaluate each criteria in the context of the group's history, geographical location, culture, and social organization.

The petitioning group has maintained a common bond of occupation, or association, or residence within a well-defined neighborhood, community, or rural district on a substantially continuous basis from May 1, 1936, until the present. For purposes of this criteria, having a common bond means that the petitioner is bound together by their common interest and actions taken in common, and is distinguishable from other groups or associations. The claimed common bond must be clear and capable of statement and definition:

a. For petitioners seeking to organize on the basis of residence, there is no requirement that members of the group all live in one community or village.

b. For petitioners seeking to organize on the basis of occupation or association, a substantial share of the persons within the petitioning group must demonstrate participation in the activities constituting the common bond.

The petitioner has maintained political influence or authority over its members as an autonomous entity. Political influence or authority means the entity uses a council, leadership, internal process, or other mechanism as a means of influencing or controlling the behavior of its members in significant respects, making decisions for the entity which substantially affect its members, and/or representing the entity in dealing with outsiders in matters of consequence. This criteria is to be understood flexibly, taking into account the limitations inherent in demonstrating historical existence of political influence or authority.

The petitioner has provided a copy of the entity's present governing document, including its membership criteria. In the absence of a governing document, the petitioner can provide a written statement describing in full its membership criteria and current governing procedures.

A significant and meaningful portion of the petitioner's membership is comprised of individuals who descend from the Alaska IRA-eligible entity that existed on May 1, 1936. Any members who do not descend genealogically from members of the Alaska IRA-eligible entity that existed on May 1, 1936, must be able to document their integration into the petitioning group.

The petitioner's membership is composed principally of persons who are not members of any federally recognized Indian tribe. However, a petitioner is still eligible to organize under the Alaska IRA even if its membership is composed principally of persons whose names have appeared on the membership list of, or who have been otherwise associated with, a federally recognized Indian Tribe, if the petitioner demonstrates that:

a. It has functioned as a separate politically autonomous community by satisfying criteria (1) and (2) of this section; and

b. Its members have provided written confirmation of their membership in the petitioner.

Neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the Federal relationship.

A petition to organize under the Alaska IRA should be submitted to the Office of the AS-IA. The Office of the AS-IA will accept the petition in any readable form. The petition should include the following:

a. A concise written narrative, with citations to supporting documentation, thoroughly explaining how the petitioner meets each of the criteria listed above;

b. Supporting documentation cited in the written narrative and containing specific, detailed evidence that the petitioner meets each of the criteria listed above; and

c. An official current membership list of all known current members of the petitioner, including each member's full name (including maiden name, if any), date of birth, and current residential address.

If the petition contains any information that is protectable under Federal law such as the Privacy Act and Freedom of Information Act, the petitioner should be required to provide a redacted version, an unredacted version of the relevant pages, and an explanation of the legal basis for withholding such information from public release.

Upon receipt of a petition, the Office of the AS-IA will review the petition and supporting documentation to determine whether the petitioner has provided sufficient evidence to meet each of the criteria listed above. Prior to completing its review, the Office of the AS-IA will advise the petitioner of any evidentiary gaps for the criteria and provide the petitioner with an opportunity to supplement or revise the petition. As part of its review of the petition, the Office of the AS-IA may also:

a. Initiate and consider other research for any purpose relative to analyzing the petition and obtaining additional information about the petitioner's status;

b. Request and consider timely submitted additional explanations and information from the petitioner; and

c. Consider any comments and evidence received from other parties to the extent they are relevant to the above criteria. The Office of Federal Acknowledgment (OFA), within the Office of the AS-IA, will provide the petitioner with any material received from other parties and provide the petitioner with the opportunity to respond to the material.

After the review of the petition, AS-IA will issue a decision determining whether the petitioner meets the above criteria and is eligible for organization under the Alaska IRA. The decision will summarize the evidence, reasoning, and analyses that are the basis for AS-IA's determination.

If AS-IA determines the petitioner is eligible for organization under the Alaska IRA, the petitioner can proceed with requesting a Secretarial election pursuant to 25 CFR part 81 and will be included on the next list of federally recognized Indian tribes published in the Federal Register .

The list of excepted foreign states and additional information with respect to the Committee on Foreign Investment in the United States (CFIUS or the Committee) are available on the Committee's section of the Department of the Treasury website.

The Committee, taking into consideration the factors identified on the Committee's section of the Department of the Treasury website, has determined, under the authority of section 721 of the Defense Production Act of 1950, as amended, and 31 CFR 800.1001(a), that: (1) the United Kingdom of Great Britain and Northern Ireland has established and is effectively utilizing a robust process to analyze foreign investments for national security risks and to facilitate coordination with the United States on matters relating to investment security; and (2) New Zealand has established and is effectively utilizing a robust process to analyze foreign investments for national security risks and to facilitate coordination with the United States on matters relating to investment security.

This determination satisfies the second criterion in the definition of excepted foreign state under 31 CFR 800.218 with respect to New Zealand and the United Kingdom of Great Britain and Northern Ireland. Therefore, New Zealand and the United Kingdom of Great Britain and Northern Ireland are and will remain excepted foreign states absent further Committee action and notice in the Federal Register .

The list of excepted real estate foreign states and additional information with respect to the Committee on Foreign Investment in the United States (CFIUS or the Committee) are available on the Committee's section of the Department of the Treasury website.

The Committee, taking into consideration the factors identified on the Committee's section of the Department of the Treasury website, has determined, under the authority of section 721 of the Defense Production Act of 1950, as amended, and 31 CFR 802.1001(a), that: (1) New Zealand has made significant progress toward establishing and effectively utilizing a robust process to analyze foreign investments for national security risks and to facilitate coordination with the United States on matters relating to investment security; and (2) the United Kingdom of Great Britain and Northern Ireland has made significant progress toward establishing and effectively utilizing a robust process to analyze foreign investments for national security risks and to facilitate coordination with the United States on matters relating to investment security.

This determination satisfies the second criterion in the definition of excepted real estate foreign state under 31 CFR 802.214 with respect to New Zealand and the United Kingdom of Great Britain and Northern Ireland. Therefore, New Zealand and the United Kingdom of Great Britain and Northern Ireland are and will remain excepted real estate foreign states absent further Committee action and notice in the Federal Register .

The Coast Guard will enforce the special local regulations in 33 CFR 100.1102 for the Mark Hahn Memorial 300 Mile PWC Endurance Race on Lake Havasu, AZ for the location described in table 1 to § 100.1102, item no. 14 of that section, from 7 a.m. to 6 p.m. on February 25, 2023 through February 26, 2023. This action is being taken to provide for the safety of life on the navigable waterway during the race. Our regulation for recurring marine events on the Colorado River, between Davis Dam (Bullhead City, Arizona) and Headgate Dam (Parker, Arizona), § 100.1102, table 1 to § 100.1102, item no. 14, specifies the location of the regulated area for the Mark Hahn Memorial 300 PWC Endurance Race, which encompasses portions of Lake Havasu. Under the provisions of § 100.1102, persons and vessels are prohibited from entering, transiting through, or anchoring within this regulated area unless authorized by the Captain of the Port, or his designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

In addition to this document in the Federal Register , the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners and local advertising by the event sponsor.

If the Captain of the Port Sector San Diego or his designated representative determines that the regulated area need not be enforced for the full duration stated on this document, he or she may use a Broadcast Notice to Mariners or other communications coordinated with the event sponsor to grant general permission to enter the regulated area.

CAA section 110(a) imposes an obligation upon states to submit SIP revisions that provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of that NAAQS. CAA section 110(a)(2) lists specific requirements that states must meet in these SIP submissions, as applicable. EPA refers to this type of SIP as an “infrastructure” SIP because it ensures that states can implement, maintain, and enforce the new or revised air standards. Within these requirements, CAA section 110(a)(2)(D)(i) contains requirements to address interstate transport of NAAQS pollutants. A SIP for this sub-section is referred to as an “interstate transport SIP.” CAA section 110(a)(2)(D)(i)(I) requires that such a plan contain adequate provisions prohibiting any source or other type of emissions activity within the state from emitting air pollutants in amounts that will significantly contribute to nonattainment of the NAAQS in any other state or interfere with maintenance of the NAAQS in any other state. This action concerns SIP submissions from the State of Alabama regarding these requirements, also called collectively the “good neighbor” provision.

Pursuant to CAA section 110(k)(1)(B), EPA must determine within 60 days of receiving a SIP revision, but no later than six months after the date by which a state is required to submit a SIP revision, whether a state has made a submission that meets the minimum completeness criteria established pursuant to CAA section 110(k)(1)(A). These criteria are set forth at 40 CFR part 51, appendix V. EPA refers to the determination that a state has not submitted a SIP submission that meets the minimum completeness criteria as a “finding of failure to submit.” If EPA finds a state has failed to submit a SIP revision to meet its statutory obligation to address CAA section 110(a)(2)(D)(i)(I), then pursuant to CAA section 110(c)(1), EPA has not only the authority, but the obligation, to promulgate a Federal implementation plan (FIP) within two years to address the CAA requirement.

On October 1, 2015, EPA promulgated a revision to the 8-hour primary and secondary ozone NAAQS of 70 parts per billion (ppb), which is met when the 3-year average of the annual fourth highest daily maximum 8-hour concentration does not exceed 70 ppb. 1 Pursuant to the 3-year period provided in CAA section 110(a)(1), states' infrastructure SIP revisions addressing the revised standard were due on October 1, 2018. 2

On August 20, 2018, Alabama submitted a SIP revision to address the interstate transport requirements for the 2015 8-hour ozone NAAQS. On February 22, 2022, EPA proposed to disapprove Alabama's August 20, 2018, SIP revision because the Agency preliminarily determined, based on updated EPA modeling, that Alabama's SIP revision did not meet CAA requirements to contain the necessary provisions to eliminate emissions that will contribute significantly to nonattainment or interfere with maintenance of the 2015 8-hour ozone NAAQS in any other state. See 87 FR 9545. On April 21, 2022, Alabama withdrew its August 20, 2018, SIP revision. 3 Additionally, on that same day, Alabama provided EPA a new SIP revision to address the CAA good neighbor interstate transport requirements for the 2015 8-hour ozone NAAQS.

EPA evaluated the SIP revision that Alabama sent on April 21, 2022, for completeness pursuant to the criteria in 40 CFR part 51, appendix V, and found it to be an incomplete SIP submission. 4 On June 14, 2022, EPA sent a letter to Alabama explaining the Agency's incompleteness determination. This letter is included in the docket for this action. 5

On June 15, 2022, EPA signed a finding of failure to submit for the State of Alabama with respect to the April 21, 2022, SIP submission addressing interstate transport obligations for the 2015 ozone NAAQS. On the same day, EPA notified the State of this finding and posted a prepublication version of the finding of failure to submit to its website.

On June 21, 2022, Alabama resubmitted a SIP submission to address the CAA good neighbor interstate transport requirements for the 2015 8-hour ozone NAAQS, which included the April submission, along with additional information regarding completeness. On June 22, 2022, the Office of the Federal Register published the finding of failure to submit. See 87 FR 37235.

EPA reviewed Alabama's June 21, 2022, SIP submission on the merits and, on October 25, 2022, proposed to disapprove the submittal for failing to adequately address good neighbor requirements under CAA section 110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS. See 87 FR 64412. EPA is finalizing disapproval of the June 21 submission in a concurrent action.

The June 21, 2022, submission has been deemed complete by operation of law and contains within it the April 21, 2022, version that was found incomplete. See CAA section 110(k)(1)(B). EPA acknowledges that the bases for incompleteness of the April 21, 2022, submission were relatively narrow. Alabama supplied additional information to EPA regarding completeness after receipt of the incompleteness letter from EPA. In light of this unique posture and the present circumstances surrounding the finding of failure to submit and subsequent developments, including EPA's decision to take substantive action on the June 21, 2022, version of the SIP submission, the Agency is rescinding the June 22, 2022, finding of failure to submit contemporaneous with its separate final action disapproving Alabama's June 21, 2022, version of the SIP submission. 6

The Agency makes no determination here that the finding of failure to submit was issued in error. EPA also notes that, with respect to the CAA obligations at issue here, it remains the Agency's expressed intention to finalize FIPs as needed for upwind states  7 —including, potentially, Alabama—within the two-year statutory timeframe for EPA to promulgate a FIP following either a disapproval of or a finding of failure to submit a required SIP.

This remains true for Alabama whether the two-year FIP deadline would have run from the date of the finding of failure to submit or is dated from the date of the disapproval action.

EPA's obligation to promulgate a FIP addressing Alabama's good neighbor obligations for the 2015 ozone NAAQS runs from the date of the action disapproving the June 21, 2022, version of the submission.

This action rescinds the procedural finding that Alabama failed to submit a SIP revision to address CAA section 110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS. EPA did not conduct an environmental justice analysis for this action because it will not directly affect the air emissions of particular sources. Because this action will not directly affect the air emissions of particular sources, it does not affect the level of protection provided to human health or the environment. Therefore, this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations.

Section 553 of the APA, 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. As discussed above, EPA is concurrently finalizing action on Alabama's June 21, 2022, SIP submittal and will be subject to the same obligations as it would be under a finding of failure to submit (specifically, to promulgate a FIP or approve a SIP). Thus, notice and comment are impracticable and unnecessary with respect to issuance of this final action, as they were with the original finding of failure to submit (FFS). EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).

This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act. This final action does not establish any new information collection requirement apart from what is already required by law. This action rescinds the procedural finding that Alabama failed to submit a complete SIP revision under section 110(a)(2)(D)(i)(I) of the CAA for the 2015 ozone NAAQS.

This action is not subject to notice and comment requirements because the Agency has invoked the Administrative Procedure Act (APA) “good cause” exemption under 5 U.S.C. 553(b).

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments, or the private sector.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175. This action rescinds the procedural finding that Alabama failed to submit a complete SIP revision under section 110(a)(2)(D)(i)(I) of the CAA for the 2015 ozone NAAQS. No tribe is subject to the requirement to submit a transport SIP under section 110(a)(2)(D)(i)(I) of the CAA for the 2015 ozone NAAQS. Thus, Executive Order 13175 does not apply to this action.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive order. This action is not subject to Executive Order 13045 because it rescinds the procedural finding that Alabama failed to submit a complete SIP revision under section 110(a)(2)(D)(i)(I) of the CAA for the 2015 ozone NAAQS and does not directly or disproportionately affect children.

This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

Executive Order 12898 (59 FR 7629, February 16, 1994) directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations (people of color) and low-income populations.

EPA believes that this type of action does not concern human health or environmental conditions and therefore cannot be evaluated with respect to potentially disproportionate and adverse effects on people of color, low-income populations and/or Indigenous peoples. This action rescinds the procedural finding that Alabama failed to submit a SIP revision to address CAA section 110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS and does not have a direct connection to levels of air pollutants or controls to address air emissions.

This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 14, 2023. Filing a petition for reconsideration by the Administrator of this final action 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.