### 6023 Federal Register / Vol. 77, No. 25 / Tuesday, February 7, 2012 / Proposed Rules

relevant work, educational, or other experience. Section 213.3102(u)(5) addresses temporary employment options, mainly when a determination of job readiness cannot be made based on an individual’s prior work, educational, or other experience. We propose to modify this section to clarify the appropriate uses of the temporary employment option (i.e. to determine job readiness, or when the duties to be performed are truly of a short-term nature).

Regulatory Flexibility Act

I certify that this regulation will not have a significant economic impact on
a substantial number of small entities because it affects only certain potential applicants and Federal employees.

Executive Order 12866, Regulatory

Review

This rule has been reviewed by the Office of Management and Budget in
accordance with Executive Order 12866.

List of Subjects in 5 CFR Part 213

Government employees, Excepted
Schedules.

U.S. Office of Personnel Management. John Berry,

Director.

Accordingly, OPM is proposing to
revise 5 CFR 213.3102 as follows:

**PART 213—EXCEPTED SERVICE**

1. The authority citation for part 213
is revised to read as follows:

Authority: 5 U.S.C. 3161, 3301 and 3302; E.O. 10577, 3 CFR 1954–1958 Comp., p. 218;
Sec. 213.101 also issued under 5 U.S.C. 2103.
Sec. 213.3102 also issued under 5 U.S.C. 3301, 3302, 3307, 8337(h), and 8456; E.O. 13318, 3 CFR 1982 Comp., p. 185; 38 U.S.C.

4301 et seq.; Pub. L. 105–339, 112 Stat 3182– 83; E.O. 13162; E.O. 12125, 3 CFR 1979 Comp., p. 16879; and E.O. 13124, 3 CFR 1999 Comp., p. 31103; and Presidential Memorandum—Improving the Federal Recruitment and Hiring Process (May 11, 2010).

2. In § 213.3102 revise paragraph (u)
to read as follows:

**§ 213.3102 Entire executive civil service.**

* * * * *

(u) Appointment of persons with intellectual disabilities, severe physical disabilities, or psychiatric disabilities— (1) Purpose. An agency may appoint, on a permanent, time-limited, or temporary basis, a person with an intellectual disability, a severe physical disability, or a psychiatric disability according to the provisions described below.

(2) Definition. ‘‘Intellectual disabilities’’ means only those disabilities that would have been encompassed by the term ‘‘mental retardation’’ in previous iterations of this regulation and the associated Executive Order, Executive Order 12125, dated March 15, 1979.

(3) Proof of disability. (i) An agency must require proof of an applicant’s intellectual disability, severe physical disability, or psychiatric disability prior to making an appointment under this

section.

(ii) An agency may accept, as proof of disability, appropriate documentation (e.g., records, statements, or other appropriate information) issued from a licensed medical professional ( e.g., a physician or other medical professional duly certified by a State, the District of Columbia, or a U.S. territory, to practice medicine); a licensed vocational rehabilitation specialist (State or private); or any Federal agency, State agency, or an agency of the District of Columbia or a U.S. territory that issues or provides disability benefits.

(4) Permanent or time-limited employment options. An agency may make permanent or time-limited appointments under this subsection where an applicant supplies proof of disability as described in paragraph (3) above and the agency determines that the individual is likely to succeed in the performance of the duties of the position for which he or she is applying. In determining whether the individual is likely to succeed in performing the duties of his position, the agency may rely upon the applicant’s employment, educational, or other relevant experience, including but not limited to service under another type of appointment in the competitive or excepted services.

(5) Temporary employment options. An agency may make a temporary appointment when:

(i) It is necessary to observe the applicant on the job to determine whether the applicant is able or ready to perform the duties of the position. When an agency uses this option to determine an individual’s job readiness, the hiring agency may convert the individual to a permanent appointment in the excepted service whenever the agency determines the individual is able to perform the duties of the position; or

(ii) The work is of a temporary nature. (6) Noncompetitive conversion to the competitive service. (i) An agency may noncompetitively convert to the competitive service an employee who has completed 2 years of satisfactory service under this authority in accordance with the provisions of Executive Order 12125 as amended by Executive Order 13124 and § 315.709 of this chapter, except as provided in (u)(6)(ii).

(ii) Time spent on a temporary appointment specified in paragraph (u)(5)(ii) of this section does not count towards the 2-year requirement.

* * * * *

[FR Doc. 2012–2660 Filed 2–6–12; 8:45 am]

**BILLING CODE 6325–39–P**

**DEPARTMENT OF TRANSPORTATION**

**Federal Aviation Administration**

**14 CFR Part 39**

**[Docket No. FAA–2012–0038; Directorate Identifier 2011–NM–209–AD]** 

**RIN 2120–AA64**

**Airworthiness Directives; Airbus Airplanes** 

**AGENCY :**  Federal Aviation Administration (FAA), DOT.

**ACTION :**  Notice of proposed rulemaking (NPRM).

**SUMMARY :**  We propose to adopt a new airworthiness directive (AD) for all
Airbus Model A300 B4–600 series airplanes and Model A310–203, –204, –221, and –222 airplanes. This proposed AD was prompted by a report of a capacitive density condensator (cadensicon) coil overheating during testing. This proposed AD would require an inspection to determine if a certain fuel quantity indication computer (FQIC) is installed, replacement of identified FQICs, and modification of the associated wiring. We are proposing this AD to detect and correct potential overheating of the cadensicon coil, which could create an ignition source inside a fuel tank, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.

**DATES :**  We must receive comments on this proposed AD by March 23, 2012.

**ADDRESSES :**  You may send comments by any of the following methods:

• Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

• Fax: (202) 493–2251.

• Mail: U.S. Department of Transportation, Docket Operations, M– 30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590.

• Hand Delivery: U.S. Department of Transportation, Docket Operations, M– 30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE.,


### 6024 Federal Register / Vol. 77, No. 25 / Tuesday, February 7, 2012 / Proposed Rules

Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

For service information identified in this proposed AD, contact Airbus SAS— EAW (Airworthiness Office), 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email account.airworth-eas@airbus.com;

Internet http://www.airbus.com . You may review copies of the referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, Washington. For information on the availability of this material at the FAA, call (425) 227–

1221.
Examining the AD Docket

You may examine the AD docket on
the Internet at http:// www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647–5527) is in
the **ADDRESSES** section. Comments will be available in the AD docket shortly after receipt.

**FOR FURTHER INFORMATION CONTACT :**  Dan Rodina, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057–3356; telephone (425) 227–2125; fax (425) 227–1149.

**SUPPLEMENTARY INFORMATION :** 

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments
to an address listed under the

**ADDRESSES** section. Include ‘‘Docket No. FAA–2012–0038; Directorate Identifier 2011–NM–209–AD’’ at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http:// www.regulations.gov, including any personal information you provide. We will also post a report summarizing each
substantive verbal contact we receive about this proposed AD.

Discussion

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011–0186, dated September 23, 2011 (referred to after this as ‘‘the MCAI’’), to correct an unsafe condition for the specified products. The MCAI states:

In view to address the scope of Special Federal Aviation Regulation 88 (SFAR 88) (66 FR 23086, May 7, 2001) and the equivalent JAA Internal Policy INT/POL/25/ 12, a safety analysis of Fuel Quantity Indication Computers (FQIC) fitted to Wide Body aeroplanes has been performed.

Detailed analysis has shown that on early standard FQIC, Type 1, there is an insufficient gap on the printed circuit board between a 115V [volt] supply and a direct path to the Capacitive Density Condensator (Cadensicon).

During tests that were carried out applying 115V to the Cadensicon coil, measured temperature levels were in excess of the acceptable level of 200 ° C. This potential overheating of the Cadensicon coil could be a possible ignition point within the fuel tank.

This condition, if left uncorrected, could create an ignition source in the tank vapour space, possibly resulting in a wing fuel tank explosion and consequent loss of the aeroplane.

For the reasons explained above, this [EASA] AD requires the replacement of all Type 1 FQICs with Type 2 FQICs.

You may obtain further information by examining the MCAI in the AD
docket.

The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled ‘‘Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements’’ (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (‘‘SFAR 88,’’ Amendment 21–78, and subsequent Amendments 21–82 and 21–83).

Among other actions, SFAR 88 (66 FR 23086, May 7, 2001) requires certain type design (i.e., type certificate (TC) and supplemental type certificate (STC))
holders to substantiate that their fuel tank systems can prevent ignition
sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address
unsafe conditions identified as a result
of these reviews.

In evaluating these design reviews, we
have established four criteria intended
to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to
flammable conditions is one of these
criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further

action.

The Joint Aviation Authorities (JAA) has issued a regulation that is similar to SFAR 88 (66 FR 23086, May 7, 2001). (The JAA is an associated body of the European Civil Aviation Conference (ECAC) representing the civil aviation regulatory authorities of a number ofEuropean States who have agreed to cooperate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks.

We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

Relevant Service Information

Airbus has issued Mandatory Service Bulletins A300–28–6024, Revision 02, dated January 19, 2011; and A310–28– 2039, Revision 01, dated January 19,
2011. The actions described in this
service information are intended to
correct the unsafe condition identified
in the MCAI.

FAA’s Determination and Requirements of This Proposed AD

This product has been approved by the aviation authority of another country, and is approved for operation
in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified
of the unsafe condition described in the
MCAI and service information


### 6025 Federal Register / Vol. 77, No. 25 / Tuesday, February 7, 2012 / Proposed Rules

referenced above. We are proposing this AD because we evaluated all pertinent
information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

Costs of Compliance

Based on the service information, we estimate that this proposed AD would affect about 53 products of U.S. registry.
We also estimate that it would take about 6 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $200 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher
than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $37,630, or $710 per product.

Authority for This Rulemaking

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

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

action.

Regulatory Findings

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

For the reasons discussed above, I certify this proposed regulation:

1. Is not a ‘‘significant regulatory action’’ under Executive Order 12866; 2. Is not a ‘‘significant rule’’ under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not affect intrastate aviation in Alaska; and

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

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the
AD docket.

List of Subjects in 14 CFR Part 39

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

The Proposed Amendment

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

**PART 39—AIRWORTHINESS**
**DIRECTIVES**

1. The authority citation for part 39
continues to read as follows:

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

**§ 39.13 [Amended]**

2. The FAA amends § 39.13 by adding the following new AD:

Airbus: Docket No. FAA–2012–0038;
Directorate Identifier 2011–NM–209–AD.

(a) Comments Due Date

We must receive comments by March 23,

2012.

(b) Affected ADs

None.

(c) Applicability

This AD applies to Airbus Model A300 B4– 601, B4–603, B4–620, and B4–622 airplanes, and Model A310–203, –204, –221, and –222 airplanes; certificated in any category; all
manufacturer serial numbers.

(d) Subject

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

(e) Reason

This AD was prompted by a report of a capacitive density condensator (cadensicon) coil overheating during testing. We are issuing this AD to detect and correct potential overheating of the cadensicon coil, which could create an ignition source inside a fuel tank, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.

(f) Compliance

You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. (g) Actions

Within 30 months after the effective date of this AD, inspect to determine whether any fuel quantity indication computer (FQIC) Type 1, having part number (P/N) SIC5054 or P/N SIC5051 (as applicable to the airplane model), is installed, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A300–28–6024, Revision 02, dated January 19, 2011; or Airbus Mandatory Service Bulletin A310–28– 2039, Revision 01, dated January 19, 2011; as applicable. A review of airplane maintenance records is acceptable in lieu of this inspection if the part number of the FQIC can be conclusively determined from that review. If any FQIC Type 1 having P/N SIC5054 or P/N SIC5051 is installed, within 30 months after the effective date of this AD, replace the FQIC Type 1 with a FQIC Type 2 having P/N SIC5055, P/N SIC5076, P/N SIC5082, or P/N SIC5083 (as applicable to Model A310 series airplanes) or with a FQIC Type 2 having P/N SIC5077 (as applicable to Model A300 B4–600 series airplanes), and modify the associated wiring, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A300–28–6024, Revision 02, dated January 19, 2011; or Airbus Mandatory Service Bulletin A310–28– 2039, Revision 01, dated January 19, 2011; as applicable.

(h) Parts Installation

As of the effective date of this AD, no person may install any FQIC Type 1 having P/N SIC5054 or P/N SIC5051, on any airplane.

(i) Other FAA AD Provisions

The following provisions also apply to this

AD:

(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Dan Rodina, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057– 3356; telephone (425) 227–2125; fax (425) 227–1149. Information may be emailed to: 9– ANM–116–AMOC–REQUESTS@faa.gov. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/ certificate holding district office. The AMOC approval letter must specifically reference
this AD.

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


### 6026 Federal Register / Vol. 77, No. 25 / Tuesday, February 7, 2012 / Proposed Rules

(j) Related Information

Refer to MCAI European Aviation Safety Agency Airworthiness Directive 2011–0186, dated September 23, 2011, and the service information specified in paragraphs (j)(1) and (j)(2) of this AD, for related information.

(1) Airbus Mandatory Service Bulletin A300–28–6024, Revision 02, dated January

19, 2011.

(2) Airbus Mandatory Service Bulletin A310–28–2039, Revision 01, dated January

19, 2011.

Issued in Renton, Washington on January

12, 2012. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.

[FR Doc. 2012–2678 Filed 2–6–12; 8:45 am]

**BILLING CODE 4910–13–P**

**DEPARTMENT OF TRANSPORTATION**

**Federal Aviation Administration**

**14 CFR Part 71**

**[Docket No. FAA–2011–1181; Airspace Docket No. 11–ANM–20]** 

**Proposed Amendment of Class E Airspace; Boise, ID** 

**AGENCY :**  Federal Aviation Administration (FAA), DOT.

**ACTION :**  Notice of proposed rulemaking (NPRM).

**SUMMARY :**  This action proposes to amend Class E airspace at Boise Air Terminal (Gowen Field), Boise, ID. Decommissioning of the Donnelly Tactical Air Navigation System (TACAN) has made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at the airport. This action also would adjust the geographic coordinates of the airport.

**DATES :**  Comments must be received on or before March 23, 2012.

**ADDRESSES :**  Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M– 30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366–9826. You must identify FAA Docket No. FAA–2011–1181; Airspace Docket No. 11–ANM–20, at the beginning of your comments. You may also submit comments through the

Internet at http://www.regulations.gov.

**FOR FURTHER INFORMATION CONTACT :**  Eldon Taylor, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203–4537.

**SUPPLEMENTARY INFORMATION :**  Comments Invited
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA 2011–1181 and Airspace Docket No. 11– ANM–20) and be submitted in triplicate to the Docket Management System (see

**ADDRESSES** section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments
on this action must submit with those comments a self-addressed stamped postcard on which the following
statement is made: ‘‘Comments to FAA
Docket No. FAA–2011–1181 and Airspace Docket No. 11–ANM–20’’. The postcard will be date/time stamped and
returned to the commenter.

All communications received on or before the specified closing date for
comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments
received. All comments submitted will
be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the
docket.

Availability of NPRMs

An electronic copy of this document may be downloaded through the

Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA’s web page at http:// www.faa.gov/airports

_airtraffic/

air

_ traffic/publications/ airspace

_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the

**ADDRESSES** section for the address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal
business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

Persons interested in being placed on a mailing list for future NPRMs should contact the FAA’s Office of Rulemaking, (202) 267–9677, for a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The Proposal

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class E airspace extending upward from 700
feet above the surface at Boise Air Terminal (Gowen Field), Boise, ID. Airspace reconfiguration is necessary due to the decommissioning of the Donnelly TACAN. The geographic coordinates of the airport would be adjusted in accordance with the FAA’s
aeronautical database. Controlled airspace is necessary for the safety and management of IFR operations at the airport.

Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9V, dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation
listed in this document will be published subsequently in this Order.

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

The FAA’s authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency’s authority. This rulemaking is promulgated under the authority