[Federal Register Volume 84, Number 164 (Friday, August 23, 2019)]
[Proposed Rules]
[Pages 44263-44266]
[FR Doc No: 2019-18226]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 100

[Docket Number USCG-2019-0634]
RIN 1625-AA08

Special Local Regulation; North Atlantic Ocean, Ocean City, MD

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish special local
regulations for certain waters of the North Atlantic Ocean. This action
is necessary to provide for the safety of life on these navigable
waters located at Ocean City, MD, during a high-speed power boat racing
event on September 29, 2019. This proposed rulemaking would prohibit
persons and vessels from being in the regulated area unless authorized
by the Captain of the Port Maryland-National Capital Region or Coast
Guard Patrol Commander. We invite your comments on this proposed
rulemaking.

DATES: Comments and related material must be received by the Coast
Guard on or before September 9, 2019.

ADDRESSES: You may submit comments identified by docket number USCG-
2019-0634 using the Federal eRulemaking Portal at https://www.regulations.gov. See the ``Public Participation and Request for
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Mr. Ron Houck, U.S. Coast Guard Sector Maryland-National
Capital Region; telephone<PHONE_NUMBER>, email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
PATCOM Coast Guard Patrol Commander
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    OPA Racing LLC of Brick Township, NJ, notified the Coast Guard
through submission of a marine event application that this year's Ocean
City Grand Prix would be held on a different date this year from the
date published in the Code of Federal Regulations (CFR) at Table to 33
CFR 100.501 at (b.)19. The estimated date for this annual event listed
in the regulation is either the first or second Saturday or Sunday of
May, or the second or third Saturday and Sunday of September. This
year, the Ocean City Grand Prix is being held on September 29, 2019, or
the fourth Sunday of September. The high-speed power boat racing
consists of approximately 35 participating offshore race boats of
various classes, 21 to 50 feet in length, operating along a designated,
marked racetrack-type course located in the North Atlantic Ocean, at
Ocean City, MD. Hazards from the power boat racing event include
participants operating near a designated navigation channel, as well as
injury to persons and damage to property that involve vessel mishaps
during high-speed power boat races conducted on navigable waters
located near the shoreline. The Captain of the Port (COTP) Maryland-
National Capital Region has determined that potential hazards
associated with the power boat races would be a safety concern for
anyone intending to participate in this event or for vessels that
operate within specified waters of the North Atlantic Ocean at Ocean
City, MD.
    The purpose of this rulemaking is to protect event participants,
spectators and transiting vessels on certain waters of the North
Atlantic Ocean at Ocean City, MD before, during, and after the
scheduled event. The Coast Guard proposes this rulemaking under
authority in 46 U.S.C. 70041, which authorizes the Coast Guard to
establish and define special local regulations.

III. Discussion of Proposed Rule

    The COTP Maryland-National Capital Region proposes to establish
special local regulations from 8:30 a.m. through 5:30 p.m. on September
29, 2019. There is no alternate date planned for this event. The
regulated area would cover all navigable waters of the North Atlantic
Ocean, within an area bounded by the following coordinates: commencing
at a point near the shoreline at latitude 38[deg]21'42'' N, longitude
075[deg]04'11'' W, thence east to latitude 38[deg]21'33'' N, longitude
075[deg]03'10'' W, thence southwest to latitude 38[deg]19'25'' N,
longitude 075[deg]04'02'' W, thence west to the shoreline at latitude
38[deg]19'35'' N, longitude 075[deg]05'02'' W, at Ocean City, MD. The
regulated area is approximately 4,500 yards in length and 1,600 yards
in width.
    This proposed rule provides additional information about areas

within the regulated area and their definitions. These areas include
``Race Area,'' ``Buffer Zone'', and ``Spectator Area.''
    The proposed duration special local regulations and size of the
regulated area are intended to ensure the safety of life on these
navigable waters before, during, and after the high-speed power boat
racing event, scheduled from 9 a.m. to 5 p.m. on September 29, 2019.
The COTP and the Coast Guard Patrol Commander (PATCOM) would have
authority to forbid and control the movement of all vessels and
persons, including event participants, in the regulated area. When
hailed or signaled by an official patrol, a vessel or person in the
regulated area would be required to immediately comply with the
directions given by the COTP or PATCOM. If a person or vessel fails to
follow such directions, the Coast Guard may expel them from the area,
issue them a citation for failure to comply, or both.
    Except for Ocean City Grand Prix participants and vessels already
at berth, a vessel or person would be required to get permission from
the COTP or PATCOM before entering the regulated area. Vessel operators
can request permission to enter and transit through the regulated area
by contacting the PATCOM on VHF-FM channel 16. Vessel traffic would be
able to safely transit the regulated area once the PATCOM deems it safe
to do so. A person or vessel not registered with the event sponsor as a
participant or assigned as official patrols would be considered a
spectator. Official Patrols are any vessel assigned or approved by the
Commander, Coast Guard Sector Maryland-National Capital Region with a
commissioned, warrant, or petty officer on board and displaying a Coast
Guard ensign.
    If permission is granted by the COTP or PATCOM, a person or vessel
would be allowed to enter the regulated area or pass directly through
the regulated area as instructed. Vessels would be required to operate
at a safe speed that minimizes wake while within the regulated area.
Official patrol vessels will direct spectator vessels while within the
regulated area. Only participant vessels and official patrol vessels
would be allowed to enter the race area.
    The regulatory text we are proposing appears at the end of this
document.

IV. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes
and Executive orders related to rulemaking. Below we summarize our
analyses based on a number of these statutes and Executive orders and
we discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13771 directs agencies to control
regulatory costs through a budgeting process. This NPRM has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, the NPRM has not been reviewed by the Office of
Management and Budget (OMB), and pursuant to OMB guidance it is exempt
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the size, duration
and location of the regulated area. Vessel traffic would be able to
safely transit around this regulated area, which would impact a small
designated area of the North Atlantic Ocean for 9 hours. The Coast
Guard would issue a Broadcast Notice to Mariners via VHF-FM marine
channel 16 about the status of the regulated area. Moreover, the rule
would allow vessels to seek permission to enter the regulated area, and
vessel traffic would be able to safely transit the regulated area once
the PATCOM deems it safe to do so.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this
proposed rule would not have a significant economic impact on a
substantial number of small entities.
    While some owners or operators of vessels intending to transit the
safety zone may be small entities, for the reasons stated in section
(IV. A) above, this proposed rule would not have a significant economic
impact on any vessel owner or operator.
    If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it qualifies and how and to what
degree this rule would economically affect it.
    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this proposed rule. If the rule would affect
your small business, organization, or governmental jurisdiction and you
have questions concerning its provisions or options for compliance,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section. The Coast Guard will not retaliate against small entities that
question or complain about this proposed rule or any policy or action
of the Coast Guard.

C. Collection of Information

    This proposed rule would not call for a new collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132
(Federalism), if it has 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. We have analyzed this proposed rule under that Order and
have determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
    Also, this proposed rule does not have tribal implications under
Executive Order 13175 (Consultation and Coordination with Indian Tribal
Governments) because it would not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes. If
you believe this proposed rule has implications for federalism or
Indian tribes, please contact the person listed in the FOR FURTHER
INFORMATION CONTACT section.

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this

proposed rule would not result in such an expenditure, we do discuss
the effects of this rule elsewhere in this preamble.

F. Environment

    We have analyzed this proposed rule under Department of Homeland
Security Directive 023-01 and Environmental Planning COMDTINST 5090.1
(series), which guide the Coast Guard in complying with the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made
a preliminary determination that this action is one of a category of
actions that do not individually or cumulatively have a significant
effect on the human environment. This proposed rule involves
implementation of regulations within 33 CFR part 100 applicable to
organized marine events on the navigable waters of the United States
that could negatively impact the safety of waterway users and shore
side activities in the event area lasting for nine hours. Normally such
actions are categorically excluded from further review under paragraph
L[61] in Table 3-1 of U.S. Coast Guard Environmental Planning
Implementing Procedures 5090.1. A preliminary Record of Environmental
Consideration supporting this determination is available in the docket
where indicated under ADDRESSES. We seek any comments or information
that may lead to the discovery of a significant environmental impact
from this proposed rule.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places, or vessels.

V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking,
and will consider all comments and material received during the comment
period. Your comment can help shape the outcome of this rulemaking. If
you submit a comment, please include the docket number for this
rulemaking, indicate the specific section of this document to which
each comment applies, and provide a reason for each suggestion or
recommendation.
    We encourage you to submit comments through the Federal eRulemaking
Portal at https://www.regulations.gov. If your material cannot be
submitted using https://www.regulations.gov, contact the person in the
FOR FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
    We accept anonymous comments. All comments received will be posted
without change to https://www.regulations.gov and will include any
personal information you have provided. For more about privacy and the
docket, visit https://www.regulations.gov/privacyNotice.
    Documents mentioned in this NPRM as being available in the docket,
and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's
instructions. Additionally, if you go to the online docket and sign up
for email alerts, you will be notified when comments are posted or a
final rule is published.

List of Subjects in 33 CFR Part 100

    Marine safety, Navigation (water), Reporting and recordkeeping
requirements, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes
to amend 33 CFR part 100 as follows:

PART 100--SAFETY OF LIFE ON NAVIGABLE WATERS

0
1. The authority citation for part 100 continues to read as follows:

    Authority:  46 U.S.C. 70041; 33 CFR 1.05-1.

0
2. Add Sec.  100.501T05-0634 to read as follows:

Sec.  100.501T05-0634  Special Local Regulation; North Atlantic Ocean,
Ocean City, MD.

    (a) Locations. All coordinates reference Datum NAD 1983.
    (1) Regulated area. All navigable waters of the North Atlantic
Ocean, within an area bounded by the following coordinates: Commencing
at a point near the shoreline at position latitude 38[deg]21'42'' N,
longitude 075[deg]04'11'' W; thence east to latitude 38[deg]21'33'' N,
longitude 075[deg]03'10'' W; thence southwest to latitude
38[deg]19'25'' N, longitude 075[deg]04'02'' W; thence west to the
shoreline at latitude 38[deg]19'35'' N, longitude 075[deg]05'02'' W, at
Ocean City, MD. The race area, buffer area, and spectator area are
within the regulated area.
    (2) Race area. The race area is a polygon in shape measuring
approximately 3,500 yards in length by 350 yards in width. The area is
bounded by a line commencing at position latitude 38[deg]19'46.85'' N,
longitude 075[deg]04'43.28'' W, thence east to latitude
38[deg]19'44.23'' N, longitude 075[deg]04'29.89'' W, thence north and
parallel to Ocean City, MD shoreline to latitude 38[deg]21'23.24'' N,
longitude 075[deg]03'48.87'' W, thence west to latitude
38[deg]21'25.12'' N, longitude 075[deg]04'02.45'' W; thence south to
the point of origin.
    (3) Buffer zone. The buffer zone is a polygon in shape measuring
approximately 500 yards in all directions surrounding the entire race
area described in paragraph (a) of this section. The area is bounded by
a line commencing at a point near the shoreline at position latitude
38[deg]21'42'' N, longitude 075[deg]04'11'' W; thence east to latitude
38[deg]21'35'' N, longitude 075[deg]03'24'' W; thence southwest to
latitude 38[deg]19'28'' N, longitude 075[deg]04'17'' W; thence west to
the shoreline at latitude 38[deg]19'35'' N, longitude 075[deg]05'02''
W, at Ocean City, MD.
    (4) Spectator area. The designated spectator area is a polygon in
shape measuring approximately 3,500 yards in length by 350 yards in
width. The area is bounded by a line commencing at position latitude
38[deg]19'40'' N, longitude 075[deg]04'12'' W, thence east to latitude
38[deg]19'37'' N, longitude 075[deg]03'59'' W, thence northeast to
latitude 38[deg]21'17'' N, longitude 075[deg]03'17'' W, thence west to
latitude 38[deg]21'20'' N, longitude 075[deg]03'31'' W, thence
southwest to point of origin.
    (b) Definitions. As used in this section:
    Buffer zone is a neutral area that surrounds the perimeter of the
Race Area within the regulated area described by this section. The
purpose of a buffer zone is to minimize potential collision conflicts
with marine event participants or race boats and spectator vessels or
nearby transiting vessels. This area provides separation between a Race
Area and a specified Spectator Area or other vessels that are operating
in the vicinity of the regulated area established by the special local
regulations.
    Captain of the Port (COTP) Maryland-National Capital Region means
the Commander, U.S. Coast Guard Sector Maryland-National Capital Region
or any Coast Guard commissioned, warrant or petty officer who has been
authorized by the COTP to act on his behalf.
    Coast Guard Patrol Commander (PATCOM) means a commissioned,
warrant, or petty officer of the U.S. Coast Guard who has been
designated by the Commander, Coast Guard Sector Maryland-National
Capital Region.
    Official patrol means any vessel assigned or approved by Commander,
Coast Guard Sector Maryland-National Capital Region with a
commissioned,

warrant, or petty officer on board and displaying a Coast Guard ensign.
    Participant means a person or vessel registered with the event
sponsor as participating in the Ocean City Grand Prix or otherwise
designated by the event sponsor as having a function tied to the event.
    Race area is an area described by a line bound by coordinates
provided in latitude and longitude that outlines the boundary of a race
area within the regulated area defined by this section.
    Spectator means a person or vessel not registered with the event
sponsor as participants or assigned as official patrols.
    (c) Special local regulations. (1) The COTP Maryland-National
Capital Region or PATCOM may forbid and control the movement of all
vessels and persons, including event participants, in the regulated
area. When hailed or signaled by an official patrol, a vessel or person
in the regulated area shall immediately comply with the directions
given by the patrol. Failure to do so may result in the Coast Guard
expelling the person or vessel from the area, issuing a citation for
failure to comply, or both. The COTP Maryland-National Capital Region
or PATCOM may terminate the event, or a participant's operations at any
time the COTP Maryland-National Capital Region or PATCOM believes it
necessary to do so for the protection of life or property.
    (2) Except for participants and vessels already at berth, a person
or vessel within the regulated area at the start of enforcement of this
section must immediately depart the regulated area.
    (3) A spectator must contact the PATCOM to request permission to
either enter or pass through the regulated area. The PATCOM, and
official patrol vessels enforcing this regulated area, can be contacted
on marine band radio VHF-FM channel 16 (156.8 MHz) and channel 22A
(157.1 MHz). If permission is granted, the spectator must pass directly
through the regulated area as instructed by PATCOM. A vessel within the
regulated area must operate at safe speed that minimizes wake.
    (4) Only participant vessels and official patrol vessels are
allowed to enter the race area.
    (5) A person or vessel that desires to transit, moor, or anchor
within the regulated area must obtain authorization from the COTP
Maryland-National Capital Region or PATCOM. A person or vessel seeking
such permission can contact the COTP Maryland-National Capital Region
at telephone number<PHONE_NUMBER> or on Marine Band Radio, VHF-FM
channel 16 (156.8 MHz) or the PATCOM on Marine Band Radio, VHF-FM
channel 16 (156.8 MHz).
    (6) The Coast Guard will publish a notice in the Fifth Coast Guard
District Local Notice to Mariners and issue a marine information
broadcast on VHF-FM marine band radio announcing specific event date
and times.
    (d) Enforcement officials. The Coast Guard may be assisted with
marine event patrol and enforcement of the regulated area by other
Federal, State, and local agencies.
    (e) Enforcement period. This section will be enforced from 8:30
a.m. to 5:30 p.m. on September 29, 2019.

    Dated: August 20, 2019.
Joseph B. Loring,
Captain, U.S. Coast Guard, Captain of the Port Maryland-National
Capital Region.
[FR Doc. 2019-18226 Filed 8-22-19; 8:45 am]
 BILLING CODE 9110-04-P


Comment Info: =================

General Comment:A 75 day period time to review the proposed regulations is insufficient. The time spent putting them together was 3 years I believe.  I am requesting and feel the review period should be extended to 180 days at the very least.


[Federal Register Volume 81, Number 81 (Wednesday, April 27, 2016)]
[Rules and Regulations]
[Pages 24693-24696]
[FR Doc No: 2016-09667]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2010-1167]

Airworthiness Directives Legal Interpretation

AGENCY: Federal Aviation Administration, DOT.

ACTION: Airworthiness directives legal interpretation.

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SUMMARY: The Federal Aviation Administration is issuing a legal
interpretation on regulations applicable to airworthiness directives.
This legal interpretation responds to questions asked by an Aviation
Rulemaking Committee and is intended to resolve certain issues for the
public.

DATES: April 27, 2016.

FOR FURTHER INFORMATION CONTACT: Douglas Anderson, Manager of Aircraft
Certification and Space Law Branch, Office of the Chief Counsel,
Federal Aviation Administration, 800 Independence Avenue SW.,
Washington, DC 20591; telephone:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

The Request

    This legal interpretation addresses several regulations in Title 14
of the Code of Federal Regulation (14 CFR) part 39 applicable to
airworthiness directives. It responds to questions asked by the Federal
Aviation Administration's (FAA) Organization/Procedures Working Group
of the Airworthiness Directive Implementation Aviation Rulemaking
Committee (AD ARC). The Working Group (WG) requested the agency to
interpret several provisions in part 39 to resolve issues that have
been debated within the WG. These issues partly result from amendments
made to part 39 in 2002. See Airworthiness Directives, 67 FR 47998
(Jul. 22, 2002). The WG asked four questions:
    1. What is the extent of an aircraft operator's continuing
obligation following the issuance of an airworthiness directive (AD)?
    2. What is the extent of an aircraft operator's obligation to
accomplish actions referenced in an AD beyond those actions necessary
to resolve the unsafe condition specifically identified in an AD?
    3. What is the meaning of the term ``applicable'' in AD 2007-07-02?
    4. What is the extent of an aircraft operator's responsibilities
when an AD requires an action that cannot be accomplished on a
particular aircraft?

The FAA published for public comment a proposed legal interpretation
answering these questions. Proposed Airworthiness Directive Legal
Interpretation, 76 FR 20898 (Apr. 14, 2011) (Proposed Legal
Interpretation).\1\ The FAA received numerous comments expressing
concern with the FAA's proposed interpretation. Most comments focus on
the FAA's responses to questions 1 and 4.
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    \1\ In response to several requests, the FAA extended the
comment period until June 30, 2011. 76 FR 30040 (May 24, 2011).

    As an initial matter, it is important to emphasize that each AD is
unique, and its terms control. Thus, this legal interpretation only
addresses the matters raised by the AD ARC and is limited to an
interpretation of part 39 and general agency policy governing ADs.

Legal Interpretation, Summary of Comments and the FAA's Responses

    Some of the commenters suggested that this interpretation should
change the existing part 39 regulations or FAA internal procedures with
respect to how ADs are prepared and issued. The FAA rejects those
suggestions because a regulation cannot be changed by a legal
interpretation; rulemaking is the proper method for amending a
regulation.
    Some of the comments raised policy considerations, which provide
valuable information to the FAA, but those policy considerations cannot
change the present wording of the regulations, and are best taken into
account during rulemaking. A legal interpretation only may explain the
meaning of the words that are in the existing regulation; it may not
create new policy. Set forth below is a summary and response to
comments as to the proper interpretation of existing provisions of part
39.

Question 1: What is the extent of an aircraft operator's continuing
obligation following the issuance of an airworthiness directive (AD)?

    Answer: The FAA interprets Sec. Sec.  39.7 and 39.9 to mean that
operators have an ongoing obligation to ensure that the modification
mandated by an AD is maintained.
    For changes to AD-mandated modifications and for deviations from
ADs that do not have a terminating action, the operator must obtain
approval for an alternative means of compliance (AMOC) with the AD. The
FAA recognizes that in some cases this may impose a burden on operators
to obtain AMOC approvals for activities that would otherwise be
considered normal maintenance. The FAA may allow, on an AD-by-AD basis,
reversion to part 43 maintenance, with airworthiness limitations if
appropriate to prevent operators from reintroducing unsafe conditions.

Summary of Comments Received

    Some commenters contended that the words of the regulation must be
given their plain meaning and that the proposed interpretation is not
consistent with the regulatory text. Section 39.9 provides, ``If the
requirements of an airworthiness directive have not been met, you
violate Sec.  39.7 each time you operate the aircraft or use the
product.'' Some commenters suggested that this means that once the
requirements of the AD are met, the action has been taken to resolve
the unsafe condition and the AD is, therefore, no longer applicable.
Indeed, some commenters further contended that after the AD's
requirements have been met, it is likely that the product will be in a
new type design that is different from the type design covered under
the AD, and therefore, the product now falls out of the AD's
applicability. While some commenters contended that Sec.  39.9 contains
no continuing obligation to maintain an AD-mandated condition, other
commenters suggested that the standard maintenance practices under
other parts should then control. A significant number of the comments
objected to maintaining an AD-mandated configuration in perpetuity
without any allowance for or consideration of normal maintenance,
alterations, and design changes properly performed and approved in
accordance with parts 21 and 43.

FAA's Response to Comments

    Under Sec. Sec.  39.7 and 39.9, operators must comply with the
requirements of applicable ADs and must operate aircraft in accordance
with all applicable ADs. Section 39.7 prohibits the operation of a
product that fails to meet AD requirements. Section 39.9 imposes a
continuing obligation to maintain compliance with an AD by establishing
a separate violation for each time an aircraft is operated or a product
is used that fails to meet AD requirements. When these sections are
read together in the context of part 39, an AD requires that products
be operated free of any identified unsafe condition. The FAA issues ADs
not only to require operators to accomplish particular actions listed
in the AD, but also to ensure that, when products are operated, they
are free of identified unsafe conditions. It is important that once the
unsafe condition is corrected as required by an AD, the unsafe
condition not be reintroduced. Even if the configuration of the
airplane has changed to comply with the AD, it does not mean that the
AD no longer applies.
    There are two main categories of ADs issued by the FAA: (1) Ongoing
inspection and/or maintenance requirements that address a known unsafe
condition or an unsafe condition likely to exist; and (2) ADs that
require modifications, which may be ``terminating actions'' for ongoing
requirements, and which remove the unsafe condition. Sections 39.7 and
39.9 impose a continuing obligation to comply with both types of AD
requirements.
    The comments appear to manifest confusion regarding the second type
of AD and specifically the use of the term ``terminating action'' in an
AD. While

how that term is used in an individual AD controls, general guidance of
the FAA's general use of such term follows. Terminating action ADs
allow or direct operators to perform a maintenance action that removes
the unsafe condition from the affected aircraft and eliminates the need
for the AD's inspection requirements. One example of a terminating
action is the removal and replacement of a defective part that had been
subject to AD-mandated repetitive inspections. After a ``terminating
action,'' the resulting configuration constitutes an FAA-approved type
design which must be maintained as required by Sec. Sec.  39.7 and
39.9. This configuration must also be maintained in order for the
aircraft to be airworthy.\2\
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    \2\ Any operation of an unairworthy aircraft is subject to
enforcement action under Part 91.
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    Terminating actions fall into two broad categories--those that
either (1) correct whatever defect kept the product from conforming to
an approved type design; or (2) accomplish a required change in type
design where the FAA has determined that the original type design does
not comply with the applicable airworthiness standards. In both cases,
the post-AD configuration meets type certification requirements and
renders the aircraft in a condition for safe operation. An aircraft
operator must maintain that resulting configuration, and may not change
it to any other configuration that does not comply either with the AD
or with an approved AMOC to the AD.
    For ADs mandating modifications where the AD requires no further
action after modification, the operator may perform standard
maintenance practices on that new configuration, associated with
maintaining the fleet, which would not change the required
modification, and may do so without AMOC approval. Any change from the
mandated modification, however, requires FAA approval of an AMOC.\3\
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    \3\ Parts 21 and 43 also prohibit the reintroduction of an
unsafe condition.
---------------------------------------------------------------------------

    When an unsafe condition is eliminated in production before the FAA
issues the AD, the FAA limits the applicability of the AD requirements
to exclude those newly produced aircraft. Those new aircraft resolve
the unsafe condition by having appropriate modifications incorporated
into their type design during production and initial airworthiness
certification. Continued compliance with the type design, inspection,
and maintenance requirements under parts 21 and 43 for that product
should ensure that operators maintain the product's condition for safe
operation. In contrast, when the FAA issues an AD, it is because the
agency determined that regulatory requirements have not effectively
prevented an unsafe condition of the affected products. Therefore,
Sec.  39.7 requires that, when a product is operated, it must meet the
requirements of all applicable ADs including any ongoing mandated
inspection and maintenance requirements that may override general part
43 maintenance practices.

Question 2: What is the extent of an aircraft operator's obligation to
accomplish actions referenced in an AD beyond those actions necessary
to resolve the unsafe condition specifically identified in an AD?

    Answer: An AD may require more actions than correcting the specific
unsafe condition. These may include actions reasonably related to
resolving or preventing the unsafe condition. Thus, an aircraft
operator has an obligation to accomplish all actions required by an AD
including those beyond the actions necessary to resolve the unsafe
condition specifically identified in an AD.

Summary of Comments Received

    Some commenters argued that the FAA's interpretation is not
consistent with the regulatory text because by its terms Sec.  39.11 is
limited to actions to resolve only the ``unsafe condition.'' According
to such commenters, if an action required by the AD does not directly
affect the unsafe condition, those actions are over-prescriptive and
outside the scope of the FAA's authority.
    Other commenters take the opposite view. As Airbus, a design
approval holder (DAH) noted, operators often request complete sets of
instructions for preparation, procedures, test, and closing up.
Additionally, DAH-determined tools, methods, proceedings, materials,
and instructions to be used for accomplishing a service instruction for
continued airworthiness are part of the type design under Sec.  21.31.

FAA's Response to Comments

    The FAA's interpretation is consistent with Title 49 of United
States Code, Section 44701, which establishes the FAA's broad authority
to issue regulations in the interest of aviation safety and the FAA
issues ADs under such authority. In addition, Sec.  39.11 of the
regulations provides:

    Sec.  39.11 What actions do airworthiness directives require?
Airworthiness directives specify inspections you must carry out,
conditions and limitations you must comply with, and any actions you
must take to resolve an unsafe condition (emphasis added).

    When describing the types of actions required by an AD, which is a
final rule, Sec.  39.11 does not limit the agency's broad statutory
authority. AD requirements are imposed by the language of the AD itself
and not by Sec.  39.11. Thus, an AD may require more actions than
simply correcting the specific unsafe condition by, for example,
requiring certain continuing maintenance actions to prevent or detect
the unsafe condition in the future.
    In developing an AD, the FAA determines the range of actions that
are reasonably related to and further the interest of aviation
safety.\4\ For example, service information frequently includes
instructions for accessing the area to be worked on to address the
unsafe condition. Because these access instructions are reasonably
related to addressing the unsafe condition, the FAA has the authority
to mandate such instructions by AD.
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    \4\ The FAA has ``broad authority to require whatever types of
corrective actions we determine to be most effective in addressing
identified unsafe conditions. This includes inspections, repairs,
modifications, operating limitations, airworthiness limitations, and
maintenance program requirements.'' Airworthiness Directives, 67 FR
47998-01 (Jul. 22, 2002). The FAA issues ADs under the
Administrative Procedure Act (APA); therefore, if the actions
required by an AD are reasonably related to resolution of the unsafe
condition, the FAA may mandate them. 5 U.S.C.A. Sec.  551 et seq.
---------------------------------------------------------------------------

    The rulemaking process by which individual ADs are adopted provides
the public with an opportunity to identify and express concern with
potentially overly prescriptive requirements. In addition, each AD
contains a provision allowing for approval of an AMOC, which allows an
operator to address an unsafe condition in a manner approved by the
FAA.

Question 3: What is the meaning of the term ``applicable'' in AD 2007-
07-02? \5\
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    \5\ AD 2007-07-02 paragraph (f) states in pertinent part that
operators must ``do[] all the applicable actions specified in the
Accomplishment Instructions of the applicable service bulletin
specified in Table 1 of this AD.''.
---------------------------------------------------------------------------

    Answer: The FAA interprets ``applicable'' to limit the required
actions to those that apply to a particular aircraft under the specific
conditions found. The use of ``applicable'' does not permit an operator
to decide which actions are necessary to correct the unsafe condition.

Summary of Comments Received

    One commenter contended there was no ambiguity in the subject AD
because

the SB specifically list the fleets affected, and which steps are
applicable based on several different configurations of various
aircraft. Therefore, the commenter concluded there is no need to
include the word ``applicable'' to exclude those products for which the
requirements clearly do not apply.
    ARSA commented that under part 39 the FAA cannot make anything
``applicable'' that is not directly related to the unsafe condition and
specified actions must be limited to those that directly address the
unsafe condition. In its view, the FAA's interpretation mandates
accomplishing all actions, whether or not necessary to correcting the
unsafe condition, which is contrary to part 39.

FAA's Response to Comments

    The FAA intends ``applicable'' to have the same meaning in both
places in paragraph (f) of AD 2007-07-02. The first usage limits the
required actions to those that apply to a particular aircraft under the
specific conditions found; it does not permit an operator to decide
which actions are necessary and which are unnecessary to correct the
unsafe condition.
    The second usage references Table 1 in the AD that identifies the
model of aircraft to which each service bulletin applies. The
``applicable service bulletin'' means the service bulletin that applies
to each corresponding aircraft model, as indicated in Table 1 of the
AD. Similarly, ``all the applicable actions'' specified in each
applicable service bulletin are those actions that are identified as
applying to a particular aircraft. ``Applicable'' is a necessary
qualifier in this context for two reasons: (1) In many ADs, the
referenced service bulletins specify different actions for different
aircraft configurations, typically identified as ``Group 1,'' ``Group
2,'' etc.; (2) in many ADs, the referenced service bulletins specify
different actions depending on conditions found during performance of
previous steps in the instructions (e.g., if a crack is smaller than a
specified size, repair in accordance with the Structural Repair Manual;
if larger, repair in accordance with a method approved by the Aircraft
Certification Office). The term ``applicable'' limits the AD's
requirements to only those that are specified in the service bulletin
for the configuration and conditions of a particular aircraft. In this
case, the word ``all'' means that every applicable action must be
accomplished.
    Although this response applies specifically to AD 2007-07-02, this
general principle also applies to uses of the term ``applicable'' in
other ADs. The FAA promulgates ADs with specific standards to directly
address the identified unsafe condition. As exemplified by AD 2007-07-
02, ADs often require many different actions for various models and
aircraft configurations. Because of those complexities, mandating AD
actions without incorporating by reference the manufacturer's service
bulletin that may contain ``normal'' part 43 maintenance actions
becomes impracticable or may interject unnecessary complexities or
inconsistencies that adversely affect performance of the necessary
corrective actions.

Question 4: What is the extent of an aircraft operator's
responsibilities when an AD requires an action that cannot be
accomplished on a particular aircraft?

    Answer: Sections 39.15 and 39.17 require ADs to apply to a specific
product, even if the product has been changed through component removal
or replacement or other modification. An operator who cannot comply
with the specific requirements of an AD must request approval of an
AMOC from the FAA. The operator must obtain an AMOC approval even if
the affected component has been removed from the aircraft, rendering
compliance with the specific requirements of the AD impossible. The
AMOC process allows the FAA to determine whether the unsafe condition
has been eliminated when an operator removes a component addressed in
an AD and replaces it with a different component.

Summary of Comments

    Some commenters stated the FAA's interpretation is either wrong
because when the AD pertains to a specific part or component that has
since been legally removed or pertains to a part or such that is not
installed on the aircraft, the AD no longer applies, or represents a
change from past practice or guidance.

FAA Response to Comments

    If a change to a product makes it impossible to comply with the
requirements of an AD, then the operator must request an AMOC approval
from the FAA. Sections 39.15 and 39.17 directly answer this issue.
Section 39.15 provides that an AD applies to each product identified in
the AD, even if an individual product has been changed by modifying,
altering, or repairing it in the area addressed by the AD. Section
39.17 requires that if a change in a product affects an operator's
ability to accomplish the actions required by the AD in any way, the
operator must request FAA approval of an AMOC. Together these sections
require an operator who cannot comply with the specific requirements of
an AD to request FAA approval of an AMOC. The operator must obtain an
AMOC approval even if the affected product has been removed from the
aircraft, rendering compliance with the specific requirements of the AD
impossible. The AMOC process allows the FAA to determine whether the
unsafe condition has been eliminated when an operator removes a
component to which an AD applies and replaces it with a different
component.
    This approach was clearly specified in the FAA's part 39 rulemaking
in 2002. See Airworthiness Directives, 67 FR 47998 (``Specifically, FAA
is adding to part 39 the language explaining that ADs apply even if
products have been modified, altered, or repaired in the area addressed
by the directive.''). The 2002 rulemaking did not introduce any new
regulatory requirements; rather, the FAA simply codified in part 39
provisions currently found in ADs. Id. at 47999. If a change in a
product affects one's ability to comply with the AD, the person
operating the aircraft or using the product must ask the FAA's
permission to use an AMOC, and the request must either show that the
change eliminated the unsafe condition or include the specific actions
proposed. Id. at 48000.
    This response was coordinated with the Aircraft Maintenance
Division of the Flight Standards Service and the Design, Manufacturing
and Airworthiness Division of the Aircraft Certification Service.

    Issued in Washington, DC, on April 19, 2016.
Lorelei Peter,
Assistant Chief Counsel for Regulations.
[FR Doc. 2016-09667 Filed 4-26-16; 8:45 am]
 BILLING CODE 4910-13-P