On October 3, 2019 (84 FR 52747), the NRC published a direct final rule amending its regulations in part 72 of title 10 of the Code of Federal Regulations (10 CFR) by revising the “List of approved spent fuel storage casks” to include Amendment No. 14 to Certificate of Compliance No. 1014 for the Holtec International HI-STORM 100 Multipurpose Canister Cask System (HI-STORM 100 Cask System). Amendment No. 14 revised the technical specifications to add new heat loading patterns, reduce the minimum cooling time, allow use of a damaged fuel isolator for storing damaged fuel, and modify the description of vents in the overpack. Amendment No. 14 also made other administrative changes to the technical specifications.

In the direct final rule, the NRC stated that if no significant adverse comments were received, the direct final rule would become effective on December 17, 2019. The NRC received one comment (ADAMS Accession No. ML19309E185). The commenter asked whether the NRC independently verified that the amended certificate will continue to protect public health, safety, and the environment and whether the HI-STORM 100 Cask System, as approved on May 1, 2000, continues to meet all requirements in 10 CFR 72.214 as outlined in Certificate of Compliance No. 1014. The NRC evaluated the comment against the criteria for withdrawing the direct final rule as described in the proposed rule (84 FR 52815; October 3, 2019) and determined it was not significant and adverse. Specifically, the commenter did not provide new information that would cause the NRC to reevaluate its position in the preliminary safety evaluation report (ADAMS Accession No. ML19120A064). The commenter did not provide information that would cause the NRC to conduct additional analyses nor did the commenter raise a serious issue that warrants an NRC response to complete the record. The commenter also did not raise any issues that have not been previously addressed. In addition, the commenter did not propose a change, without which the rule would be ineffective or unacceptable.

The NRC's safety evaluation report provides the NRC's review and assessment of Holtec's proposed changes and the independent calculations that the NRC performed to verify Holtec's analyses. The final safety analysis report provided by Holtec, and reviewed by the NRC, evaluates generic site characteristics. Any general licensee proposing to use Amendment No. 14 to the HI-STORM 100 Cask System will have to ensure, as required by 10 CFR 72.212(b)(6), that its site characteristics are enveloped by the cask design bases evaluated for Amendment No. 14. The NRC confirmed that Holtec's evaluation of Amendment No. 14 shows that the use of the damaged fuel isolators and new heat loads will not impair the ability of the storage cask to maintain confinement and subcriticality. Additionally, the off-site dose rates will meet the dose requirements in 10 CFR 72.236(d).

As discussed in the environmental assessment for the direct final rule, Amendment No. 14 does not reflect a significant change in design or fabrication of the cask; therefore, any resulting occupational exposure or offsite dose rates would remain well within the 10 CFR part 20 annual limits for public and occupational radiological doses. Additionally, Amendment No. 14 will not result in any radiological or non-radiological environmental impacts that significantly differ from the environmental impacts evaluated in the environmental assessment supporting the final rule, “Storage of Spent Fuel in NRC-Approved Storage Casks at Power Reactor Sites” (55 FR 29181; July 18, 1990). There will be no significant change in the types of, or significant revisions in the amounts of, any effluent released; no significant increase in the individual or cumulative radiation exposures; and no significant increase in the potential for, or consequences of, radiological accidents. Therefore, this direct final rule will become effective as scheduled.

The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions is impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplanes.

In addition, the substance of these special conditions has been published in the Federal Register for public comment in several prior instances with no substantive comments received. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for adopting these special conditions upon publication in the Federal Register.

The FAA invites interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

The FAA will consider all comments received by the closing date for comments. The FAA may change these special conditions based on the comments received.

On October 12, 2018, VT DRB applied for a supplemental type certificate for oblique (side-facing) single-occupant seats equipped with airbag devices or 3-point restraints in Airbus Model A330-300 airplanes. The Airbus Model A330-300 airplane is a twin-engine, transport-category airplane with a maximum takeoff weight of 533,518 pounds and seating for 297 passengers.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, VT DRB must show that the Airbus Model A330-300 airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. A46NM or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations (e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Airbus Model A330-300 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Airbus Model A330-300 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The Airbus Model A330-300 airplane will incorporate the following novel or unusual design features:

Single-occupant, oblique (side-facing) seats with airbag devices or 3-point restraints.

The FAA has been conducting and sponsoring research on appropriate injury criteria for oblique (side-facing) seat installations. However, the FAA research program is not complete and the FAA may update these criteria as the FAA obtains further research results. To reflect current research findings, the FAA issued policy statement PS-ANM-25-03-R1, “Technical Criteria for Approving Side-Facing Seats,” November 12, 2012 to update injury criteria for fully side-facing seats, and policy statement PS-AIR-25-27, “Technical Criteria for Approving Oblique Seats,” July 11, 2018 to define injury criteria for oblique (side-facing) seats. Refer to these policy statements for definitions of variables used in the formulae shown in the conditions of this document.

The installation of these single occupant, oblique (side-facing) seats is novel given that the Airbus Model A330-300 certification basis does not adequately address protection of the occupant's neck and spine for seat configurations that are positioned at an angle greater than 18 degrees from the airplane centerline.

The installation of passenger seats at angles of 18 to 45 degrees to the airplane centerline is unusual in transport category airplanes due to the seat and occupant interface with the surrounding furniture that introduces occupant alignment and loading concerns with or without the installation of a 3-point or airbag restraint system, or both. These special conditions are necessary to further address these potential injuries to the occupant's neck and spine that were not contemplated in 14 CFR 25.785.

The FAA-sponsored research mentioned earlier has found that an unrestrained flailing of the upper torso, even when the pelvis and torso are nearly aligned, can produce serious spinal and torso injuries. At lower impact severities, even with significant misalignment between the torso and pelvis, these injuries did not occur. Tests with an FAA H-III anthropomorphic test device (ATD) have identified a level of lumbar spinal tension corresponding to the no-injury impact severity. This level of tension is included as a limit in the special conditions. The spine tension limit selected is conservative with respect to other aviation injury criteria because it corresponds to a no-injury loading condition.

As noted in the special conditions for the airbag restraint system, because an airbag restraint system is essentially a single-use device, the airbag potentially could deploy under crash conditions that are not sufficiently so severe as to require head-injury protection from the airbag restraint system. Because an actual crash is frequently composed of a series of impacts before the airplane comes to rest, this could render the airbag restraint system useless if a larger impact follows the initial impact. This situation does not exist with energy-absorbing pads or upper-torso restraints, which tend to provide protection according to the severity of the impact. Therefore, the installation of the airbag restraint system should be such that the airbag restraint system will provide protection when it is required, and will not expend its protection when it is not needed.

Because these airbag restraint systems may or may not activate during various crash conditions, the injury criteria listed in the special conditions and in § 25.562 must be met in an event that is slightly below the activation level of the airbag restraint system.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to the Airbus Model A330-300 airplane as modified by VT DRB. Should VT DRB apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A46NM to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only a certain novel or unusual design feature on one model of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Airbus Model A330-300 airplanes as modified by VT DRB.

In addition to the requirements of § 25.562, passenger seats installed at an angle between 18 degrees and 45 degrees from the airplane longitudinal centerline must meet the following:

Side-Facing Seats Special Conditions:

1. Head Injury Criteria:

Compliance with § 25.562(c)(5) is required, except that, if the ATD has no apparent contact with the seat/structure but has contact with an airbag, a head-injury criterion (HIC) unlimited score in excess of 1000 is acceptable, provided the HIC15 score (calculated in accordance with 49 CFR 571.208) for that contact is less than 700.

2. Body-to-Wall/Furnishing Contact:

If a seat is installed aft of structure (e.g., an interior wall or furnishing) that does not provide a homogenous contact surface for the expected range of occupants and yaw angles, then additional analysis and tests may be required to demonstrate that the injury criteria are met for the area that an occupant could contact. For example, if different yaw angles could result in different airbag performance, then additional analysis or separate tests may be necessary to evaluate performance.

3. Neck Injury Criteria:

The seating system must protect the occupant from experiencing serious neck injury. The assessment of neck injury must be conducted with the airbag device activated, unless there is reason to also consider that the neck-injury potential would be higher for impacts below the airbag-device deployment threshold.

a. The Nij (calculated in accordance with 49 CFR 571.208) must be below 1.0, where Nij = Fz/Fzc + My/Myc, and Nij critical values are:

b. In addition, peak Fz must be below 937 lb in tension and 899 lb in compression.

c. Rotation of the head about its vertical axis, relative to the torso, is limited to 105 degrees in either direction from forward-facing.

d. The neck must not impact any surface that would produce concentrated loading on the neck.

4. Spine and Torso Injury Criteria:

a. The lumbar spine tension (Fz) cannot exceed 1200 lb.

b. Significant concentrated loading on the occupant's spine, in the area between the pelvis and shoulders during impact, including rebound, is not acceptable. During this type of contact, the interval for any rearward (X direction) acceleration exceeding 20g must be less than 3 milliseconds as measured by the thoracic instrumentation specified in 49 CFR part 572, subpart E, filtered in accordance with SAE International (SAE) recommended practice J211/1, “Instrumentation for Impact Test-Part 1-Electronic Instrumentation.”

c. The occupant must not interact with the armrest or other seat components in any manner significantly different than would be expected for a forward-facing seat installation.

5. Pelvis Criteria:

Any part of the load-bearing portion of the bottom of the ATD pelvis must not translate beyond the edges of the seat bottom seat-cushion supporting structure.

6. Femur Criteria:

Axial rotation of the upper leg (about the z-axis of the femur per SAE Recommended Practice J211/1) must be limited to 35 degrees from the nominal seated position. Evaluation during rebound does not need to be considered.

7. ATD and Test Conditions:

Longitudinal tests conducted to measure the injury criteria above must be performed with the FAA Hybrid III ATD, as described in SAE 1999-01-1609, “A Lumbar Spine Modification to the Hybrid III ATD for Aircraft Seat Tests.” The tests must be conducted with an undeformed floor, at the most-critical yaw cases for injury, and with all lateral structural supports (e.g. armrests or walls) installed.

Inflatable Airbag Restraint Systems Special Conditions:

If inflatable airbag restraint systems are installed, the airbag systems must meet the requirements of Airbus Model A330 special conditions no. 25-395-SC, “Seats with Inflatable Lapbelts.”

Discussion

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2019-14R1, dated September 11, 2019 (“AD CF-2019-14R1”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Canada Limited Partnership Model BD-500-1A10 and BD-500-1A11 airplanes. You may examine the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2019-0584.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Canada Limited Partnership Model BD-500-1A10 and BD-500-1A11 airplanes. The NPRM published in the Federal Register on August 5, 2019 (84 FR 37976). The NPRM was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The NPRM proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. The FAA is issuing this AD to address reduced structural integrity of the airplane or reduced controllability of the airplane. See the MCAI for additional background information.

The NPRM referred to Canadian AD CF-2019-14, dated April 5, 2019. Since the FAA issued the NPRM, TCCA has issued Canadian AD CF-2019-14R1, dated September 11, 2019, which has no significant changes that affect this AD.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA has received no comments on the NPRM or on the determination of the cost to the public.

The FAA has reviewed the relevant data and determined that air safety and the public interest require adopting this final rule as proposed, except for minor editorial changes. The FAA has determined that these minor changes:

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

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

Bombardier has issued C Series Airworthiness Limitations, BD500-3AB48-11400-02, Issue 009.00, dated June 6, 2019. This service information describes airworthiness limitations for fuel tank systems, safe life limits, and certification maintenance requirements. 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 estimates that this AD affects 13 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. In the past, the FAA has estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the FAA estimates the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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 is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.

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:

Discussion

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0068, dated March 27, 2019 (“EASA AD 2019-0068”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A320-251N and A321-253N airplanes.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A320-251N and A321-253N airplanes. The NPRM published in the Federal Register on June 24, 2019 (84 FR 29421). The NPRM was prompted by reports of cracks on the pylon block seals during the final assembly line. The NPRM proposed to require replacement of the pylon block seals.

The FAA is issuing this AD to address cracks on pylon block seals, which could reduce the firewall integrity between the pylon and the nacelle. See the MCAI for additional background information.

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

The Air Line Pilots Association, International (ALPA) indicated its support for the NPRM.

Alaska Airlines requested that the FAA include Airbus Service Bulletin A320-54-1040, dated April 20, 2018, in paragraph (h)(2) of the proposed AD, to provide credit for actions accomplished before the effective date of the proposed AD. Alaska Airlines did not provide any further justification.

The FAA acknowledges the commenter's request and agrees to clarify. Paragraph (f) of this AD states to accomplish the required actions within the compliance times specified, “unless already done.” Therefore, if operators have accomplished the actions required for compliance with this AD before the effective date of this AD, no further action is necessary. The FAA has not revised this AD in this regard.

The FAA reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule as proposed, except for minor editorial changes. The FAA has determined that these minor changes:

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

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

EASA AD 2019-0068 describes procedures for replacement of the pylon block seals. This material 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 estimates that this AD would affect 9 airplanes of U.S. registry. The agency estimates the following costs to comply with this AD:

According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage for affected individuals. As a result, the agency has included all known costs in the cost estimate.

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 is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.

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:

Discussion

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0273, dated November 4, 2019 (“EASA AD 2019-0273”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Model FALCON 900EX and FALCON 2000EX airplanes.

This AD was prompted by reports of iced AoA probes after take-off, with associated misleading airspeed indication and/or misleading stall warning. A slow or late positioning of thrust levers into the take-off position in certain conditions can lead to probes being heated too late during the take-off run, which increases the risk of icing on probes after take-off. The FAA is issuing this AD to address this condition, which could lead to blocked AoA probes, possibly resulting in reduced control of the airplane. See the MCAI for additional background information.

EASA AD 2019-0273 describes procedures for revising the existing AFM to provide the flightcrew with updated normal procedures related to manually activating AoA probe heating during line up. This material 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.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to a bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI referenced above. The FAA is issuing this AD because the agency evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

This AD requires accomplishing the actions specified in EASA AD 2019-0273 described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, EASA AD 2019-0273 will be incorporated by reference in the FAA final rule. This AD, therefore, requires compliance with EASA AD 2019-0273 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in the EASA AD. Service information specified in EASA AD 2019-0273 that is required for compliance with EASA AD 2019-0273 will be available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2019-0973 after the FAA final rule is published.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because these airplanes are subject to reduced efficiency of the AoA protections that may result in iced AoA probes after take-off, with associated misleading airspeed indication and/or misleading stall warning. A slow or late positioning of thrust levers into the take-off position in certain conditions can lead to probes being heated too late during the take-off run, which increases the risk of icing on probes after take-off. This condition could result in blocked AoA probes, which could possibly result in reduced control of the airplane. Therefore, we find good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reasons stated above, we find that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and the FAA did not precede it by notice and opportunity for public comment. The FAA invites you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2019-0973; Product Identifier 2019-NM-187-AD” at the beginning of your comments. The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this AD. The FAA will consider all comments received by the closing date and may amend this AD based on those comments.

The FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The FAA will also post a report summarizing each substantive verbal contact received about this AD.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 146 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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 is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

Discussion

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 737-300, -400, -500, -600, -700, -700C, -800, -900, and -900ER series airplanes; Model 757 series airplanes; Model 767 series airplanes; Model 777 series airplanes; and Model 787-8 and 787-9 airplanes. The NPRM published in the Federal Register on December 5, 2017 (82 FR 57383). The NPRM was prompted by reports of fuel crossfeed valves failing to open when activated during flight. The NPRM proposed to require, for certain airplanes, revising the existing AFM; and for certain other airplanes, revising the existing MEL to do an operational check of the fuel crossfeed valve prior to each ETOPS flight if one fuel crossfeed valve (or the fuel balancing system on Model 787 airplanes) is inoperative.

The FAA is issuing this AD to prevent an airplane from being dispatched on an ETOPS flight with a single fuel crossfeed valve (due to design or due to MEL dispatch of a dual crossfeed valve equipped airplane with one crossfeed valve inoperative) that cannot be opened or a fuel balancing system that cannot properly operate when activated. This condition could cause the fuel in the main tank associated with a failed engine to be unavailable to the remaining operative engine, potentially resulting in a forced off-airport landing due to exhaustion of the remaining usable fuel and consequent loss of all engine thrust.

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

United Airlines (UAL) and Delta Air Lines (DAL) asked that the NPRM be withdrawn until corrective action is proposed with an adequate level of safety.

UAL stated that the FAA processes leading to issuing the NPRM did not include certain expected elements (e.g., risk analysis, adequate cost analysis [which the FAA addresses in the “Request to Increase Cost Estimate” comment], and consideration for airplanes equipped with aircraft health monitoring (AHM) [which the FAA addresses in the “Request to Exclude Airplanes with AHM” comment]). UAL added that it is not aware of an FAA risk analysis of a simultaneous engine failure and a crossfeed valve failure during an ETOPS flight in a critical fuel location.

UAL conducted a risk analysis and provided the following comments and questions:

• The NPRM specified that the FAA had received reports of fuel crossfeed valves failing to open when activated during flight, but provided no data.

• The NPRM provided no statistical analysis of industry engine failure rates, or of crossfeed valve failure rates. What is the probability that an engine will fail and a crossfeed valve will fail on the same ETOPS flight in a fuel-critical location?

• ETOPS-qualified aircraft engine failure rates are extremely low. UAL engine failure rates vary from 0.005 to 0.000, well below the 0.030 required for ETOPS certification.

• Crossfeed valve failure rates are extremely low (roughly 1 per 100,000 departures), and Boeing had indicated that it did not regard the failure of crossfeed valves as a potential reliability issue.

DAL stated that a Boeing risk analysis showed that an engine shutdown with the inability to transfer fuel is improbable (the FAA infers that the commenter meant “extremely improbable” as used in FAA risk analysis policy) and that Boeing does not consider this to be a safety issue. DAL added that cycling the fuel crossfeed valve prior to further flight, or at any time, does not ensure that the valve will work as intended at a later point in flight. DAL concluded that the proposed AD does not provide corrective action that will improve the safety of the airplane.

The FAA does not agree to withdraw the NPRM. The FAA determined that the unsafe condition of fuel crossfeed valves failing to open or fuel balancing systems failing to operate when activated during flight must be addressed. For transport airplanes, this determination is based on several criteria, and the failure to meet one or more of the criteria could lead the FAA to determine that corrective action is warranted.

For each identified potential safety issue on a transport airplane, the FAA examines the risk on the worst reasonably anticipated flights (flights actually predicted to occur) to ensure that each flight provides an acceptable level of safety [identified as “individual flight risk” in FAA risk analysis policy]. That acceptable level of safety consists of three basic expectations:

• That each flight begins in a fail-safe state (including consideration of latent failure conditions and allowed dispatch states under the MEL), meaning that a foreseeable single failure on any anticipated flight should not have a significant likelihood of causing a catastrophic event.

• That each flight does not have a numerical risk of a catastrophic event due to the issue being examined that is excessively (an order of magnitude or more) greater than the risk of a catastrophic event on an average transport airplane.

• That safety features that were prescriptively required due to lessons learned from past incidents and accidents are not excessively reduced in their effectiveness or availability.

Failure to meet any of these three criteria can lead to a determination that an unsafe condition exists and AD action is necessary, because the level of safety on the affected flights does not meet the FAA's thresholds for an acceptable level of safety on individual flights.

For each identified potential safety issue, the FAA also assesses the total cumulative risk of an event occurring at any time in the remaining life of the fleet of affected airplanes (identified as “total fleet risk” in FAA risk analysis policy). The FAA may determine that corrective action is needed to limit total fleet risk even when the assessed individual flight risk does not violate any of the three individual flight risk criteria discussed above. Total fleet risk is typically assessed by multiplying the average probabilities of each of the failures or other factors that contribute to the occurrence of an event, the total number of airplanes affected, the average utilization of those airplanes, and the average remaining life for those airplanes. The FAA also considers the number of occupants of an aircraft in assessing fleet risk, and applies total fleet risk guideline thresholds expressed in terms of both aircraft accidents and number of fatalities.

Either excessive individual flight risk or excessive total fleet risk, or both, can lead the FAA to determine that an unsafe condition exists that requires corrective action. The FAA does not use or accept calculations of acceptable total fleet risk, or acceptable average per-flight-hour risk, as a justification for taking no action on issues where an excessive individual flight risk is determined to exist on flights that are anticipated to occur.

For this AD, the FAA identified that flights of airplanes with a single operative crossfeed valve (due to design or due to MEL dispatch of a dual crossfeed valve equipped airplane with one crossfeed valve inoperative) are expected to occur with a pre-existing undetected failure of that single crossfeed valve (or of the fuel balancing system on Boeing Model 787 airplanes). On such a flight, if an engine shutdown occurs during the fuel-critical ETOPS portion of the flight, it can lead to fuel exhaustion and a forced off-airport landing. That fuel-critical portion of the flight can be of significant duration. For example, according to Boeing, the fuel-critical exposure window (during which an engine failure without crossfeed capability would lead to fuel exhaustion prior to reaching a suitable airport under the current 14 CFR part 121 fuel reserve requirements) ranges from approximately 1.8 to 2.3 hours in length for flights between the West Coast of the U.S. and Hawaii. For ETOPS missions using greater-than-180-minute ETOPS capability, the exposure can be significantly greater.

While the average probability per flight hour of a failure of the crossfeed valve and an engine failure in cruise on the same flight has been shown by Boeing to be extremely improbable (on the order of one event per billion flight hours), the actual risk is not evenly spread among flights at the average level. Instead, most of that risk is currently concentrated in the flights of airplanes operating with a single crossfeed valve due to design configuration or MEL dispatch relief, and on which that single crossfeed valve is inoperative due to a latent failure. On such flights, the estimated average probability of an engine failure during the cruise phase of flight is in the range of one event per 100,000 to 1 million flight hours (based on current industry in-flight engine shutdown data), depending on the engine/airplane combination. In addition, engine shutdowns can be caused by many different single failures of engine or airplane components, which means those flights that begin with an already inoperative crossfeed valve are not fail-safe for an engine failure as required by the airworthiness regulations and expected by the public.

Based on the crossfeed valve actuator failure rates supplied by the Boeing and the current AFM requirements to check the operation of the crossfeed valves in the last hour of cruise on ETOPS flights, the FAA estimates that well over 100 flights with inoperative crossfeed valves will occur in the remaining life of the affected fleet. Such flights do not provide the level of safety that is intended for ETOPS operations. Checking the operation of the crossfeed valve immediately prior to each ETOPS flight will ensure that each flight begins with a crossfeed valve that was recently verified to operate, and will minimize the likelihood of a crossfeed valve failing if engine crossfeed is required. The FAA considers a check of the crossfeed valve operation prior to each ETOPS flight to be a significant improvement in safety for the flights on which the risk is actually concentrated, thereby minimizing the chance that an engine failure on one of those flights will lead to a catastrophic fuel exhaustion event. For the reasons specified previously, the FAA is issuing this final rule to address the identified unsafe condition.

American Airlines generally supported the NPRM, but asked that the airplanes affected by paragraphs (h) and (j) of the proposed AD be corrected. American Airlines stated that paragraphs (h) and (j) of the proposed AD specify airplanes having line numbers 1 through 616 inclusive and 618; however, the effectivity specified in Boeing Service Bulletin 757-28-0029 for the corresponding actions is line numbers 1 through 518 inclusive. American Airlines added that airplanes having line numbers above 518 had the actions specified in the referenced service information incorporated in production.

The FAA agrees with the commenter's request for the reason provided. Paragraphs (h) and (j) of this AD have been changed accordingly.

Aviation Partners Boeing (APB) stated that the installation of winglets per Supplemental Type Certificate (STC) ST01219SE, ST00830SE, ST01518SE, or ST01920SE does not affect the accomplishment of the manufacturer's service instructions.

The FAA agrees that STC ST01219SE, ST00830SE, ST01518SE, and ST01920SE do not affect the accomplishment of the manufacturer's service instructions. Therefore, the installation of STC ST01219SE, ST00830SE, ST01518SE, or ST01920SE does not affect the ability to accomplish the actions required by this AD. The AD has not been changed in this regard.

UAL stated that the FAA did not include adequate cost analysis and stated the FAA should consider the negative effects of daily activation of the crossfeed valve on mean time between failure (MTBF) rates, or the associated cost of increased valve replacement rates.

The FAA infers that UAL is asking that the cost estimate in the “Costs of Compliance” section of this final rule be increased to account for a decreased MTBF for the crossfeed valve or actuator. The FAA does not agree to increase the estimated costs. The FAA normally addresses only the direct cost of a required action, and the agency has not received any data from the manufacturer or operators indicating that actuating the crossfeed valve prior to each ETOPS flight will significantly increase the crossfeed valve failure and replacement rate.

Relative to the effects of daily activation of the crossfeed valve, a significant decrease in MTBF will likely not result from the actions in this AD, for the following reasons:

• The various fuel system valves and valve actuators are all of similar designs, and some of those valves are cycled once or more per flight. They are designed to operate for many thousands of cycles without failure.

• For airplanes equipped with a single crossfeed valve, the existing AFM requires operators to perform an operational check of the crossfeed valve in the last hour of cruise of every ETOPS flight. This AD requires the same check to be performed prior to each ETOPS flight, and provides relief from the existing requirement for a valve operational check in the last hour of cruise.

• For airplanes with dual crossfeed valves or a fuel balancing system (for Boeing Model 787 airplanes), this AD requires a crossfeed valve operational check only when the airplane is operated under the MEL with a crossfeed valve or fuel balance system inoperative.

Therefore, this AD will not require a significantly increased total number of valve operational checks to be performed; the AD just changes when the check is performed. In light of these factors, this AD has not been changed in this regard.

UAL asked to revise the applicability of the proposed AD to exclude airplanes that have an AHM system capable of reporting an impending crossfeed valve failure before an actual service failure occurs. UAL did not provide a reason for its request, but the FAA infers that the commenter considered that a system that can detect an impending crossfeed valve failure before an actual crossfeed valve failure occurs, leading to a precautionary crossfeed valve or actuator replacement, would provide an acceptable way to address the unsafe condition.

The FAA does not agree with the commenter's request. The FAA is not aware of any of the affected airplanes having the capability to detect and annunciate an impending crossfeed valve failure. UAL did not identify a specific airplane or installed system feature that has that capability. Operators may apply for an alternative method of compliance (AMOC) in accordance with paragraph (o) of this AD, provided they can show that such a system is available for installation on an airplane and adequately addresses the unsafe condition. The AD has not been changed in this regard.

Southwest Airlines (SWA) contended that use of the term “identical” in paragraph (g)(2) of the proposed AD would be unnecessarily restrictive and could prevent operators from using previously accepted formatting standards and layout. SWA therefore asked that paragraph (g)(2) of the proposed AD be revised to add the following statement: “Alternative statements that meet the intent of the following requirements may be used if approved by an appropriate FAA POI.” SWA added that a similar principal operations inspector (POI) allowance was provided in AD 2011-18-03, Amendment 39-16785 (76 FR 53317, August 26, 2011).

The FAA does not agree with the commenter's request. The intent of this AD is for the text of the general AFM revision limitations and procedures to be identical to that required by the AD; however, formatting and layout can be changed without an approved AMOC as long as those changes do not change the text of the statements. Operators may apply for an AMOC in accordance with paragraph (o) of this AD for any changes to the text required by the AD. The AD has not been changed in this regard.

Boeing asked that paragraph (n) of the proposed AD be changed to eliminate certain existing requirements for airplanes on which a last-hour-of-ETOPS-flight crossfeed valve operational check is in the AFM as part of the type certificate approval. Boeing stated that after publication of AD 88-21-03 R1, Amendment 39-6077 (53 FR 46605, November 18, 1988) (“AD 88-21-03 R1”), new airplane models with a single crossfeed valve that were not affected by the requirements in AD 88-21-03 R1 had a similar requirement in the AFM as part of the airplane type certificate.

The FAA does not agree with the commenter's request. The FAA approval of the AFM change proposed by the commenter would be considered an approval of a voluntary change to a type certificate. Such changes are required to be approved under the process defined in 14 CFR part 21 and are not accomplished through an AD. Once the operational check prior to each ETOPS flight is incorporated into the existing AFM or MEL as required by this AD, the check required in the last hour of cruise by the existing AFM could be eliminated through a type certificate design change approval. If Boeing or an operator wants to obtain approval of a revised AFM without the limitation requiring the last-hour-of-ETOPS-flight crossfeed valve operational check, the request can be submitted for FAA approval using the normal process for obtaining approval of a revised AFM. Therefore, the AD has not been changed in this regard.

Boeing asked that the FAA expand the headings for the AFM text in figure 3 to paragraph (h)(1) of the proposed AD and figure 5 to paragraph (i)(1) of the proposed AD by adding “The following is applicable prior to incorporation of Boeing Service Bulletin 757-28-0029 or production equivalent,” and “The following is applicable prior to incorporation of Boeing Service Bulletin 757-28-0034 or production equivalent,” respectively. Boeing stated that the referenced service information and production equivalent are closing actions for the applicable AD.

The FAA partially agrees with the commenter's request. The FAA agrees to change these headings, because an operator could have a mixed fleet of single- and dual-valve airplane configurations operating under a single AFM version, which should have limitation language that is applicable only to airplanes with a single crossfeed valve. However, the FAA does not agree with making the specific change by referencing only service bulletins or production equivalent configurations, because while limitations with similar language have been approved in the past, the flight crew does not have readily available information on the service bulletins or production changes that are installed. However, the crew can readily identify whether the airplane has one or two crossfeed valves simply by looking at the overhead fuel control panel, where either one or two crossfeed valve switches are installed. Therefore, the referenced headings in this AD have been changed to refer to the crossfeed valve configuration rather than the service bulletin number.

Boeing asked that the proposed operational requirement for airplanes with dual crossfeed valves operating on the master minimum equipment list (MMEL) be eliminated. Boeing stated that after publication of AD 88-21-03, which required operational checks of the crossfeed valves in the last hour of each ETOPS flight for airplanes equipped with a single crossfeed valve, the FAA approved the installation of a second crossfeed valve as an AMOC for that AD, without requiring any crossfeed valve checks if the airplane is operated with a crossfeed valve inoperative under the MEL. Boeing added that it is not necessary to now mandate an operational check for an airplane operating with a crossfeed valve inoperative under the MEL.

Boeing stated that the fundamental criterion for MMEL relief is that an acceptable level of safety must be maintained considering the next critical single failure event in flight. Boeing also stated that operation with a crossfeed valve or transfer system inoperative under the current MMEL requires verification that the remaining crossfeed valve is operative, and that in-flight failure of the remaining crossfeed valve during a subsequent flight would not itself create an unsafe condition. Boeing added that issuing an AD to require operational checks for operation under the MMEL is therefore redundant.

Boeing cited the preamble language required by the FAA in MMEL Policy Letter 34, Revision 4, dated August 15, 1997:

Boeing stated that the addition of a redundant crossfeed valve provides a fault-tolerant configuration, which experience has shown provides an acceptable level of safety. Boeing concluded that unless credit is given for the redundant crossfeed valve without a requirement for an operational check, the redundant valve provides no added safety benefit and therefore could be eliminated.

The FAA does not agree with the commenter's request. When the FAA determines that an existing MMEL relief provision does not provide an acceptable level of safety, the FAA may either eliminate or modify that relief through AD action. In this case, the FAA determined that an operational check of the crossfeed valve, prior to each ETOPS flight that takes place with a single crossfeed valve, is necessary to prevent dispatch of an ETOPS flight with no ability to access all of the remaining fuel in the event of an engine failure. The FAA has further determined that flights without the ability to access all of the remaining fuel would not provide an acceptable level of safety, because a single engine failure during the critical portion of the cruise phase could result in a forced offairport landing due to inadequate usable fuel available to the operative engine. This check is necessary when an airplane equipped with a dual crossfeed valve is dispatched under the MMEL with one crossfeed valve inoperative or with the fuel balancing system inoperative, for the same reason that the crossfeed valve operational check is required prior to each ETOPS flight on an airplane with a single crossfeed valve.

The citation from MMEL Policy Letter 34 is from the standardized language required by that policy letter to be included in the preamble of an MMEL. It is simply an introductory statement indicating that redundant systems may allow for dispatch with certain equipment inoperative in some cases. It is not intended to restrict the conditions or limitations that the FAA may place on a particular MMEL relief provision. The failure of a crossfeed valve in a manner that will prevent it from actuating is typically detected only through subsequent attempted actuation of the crossfeed valve for fuel balancing, or for crossfeed in the event of an engine failure. Therefore, the failure of the crossfeed valve is likely to remain undiscovered from the time of the failure until the next attempt at actuation. This latency period may occur during several flights in some operational situations, such as movement of an individual airplane to an ETOPS route when that airplane has previously been operated on non-ETOPS routes. That operational situation and the associated latency period increases the likelihood that the crossfeed valve on that airplane will fail when the next attempt is made to actuate the crossfeed valve. An operational check of the crossfeed valve immediately prior to each ETOPS flight (the flights where the ability to open the crossfeed valve may be critical) is a practical measure to minimize the likelihood that the crossfeed valve will fail to open if needed, and to ensure that the flight is started with an operative crossfeed valve.

The addition of a second crossfeed valve provides redundancy that the FAA determined in the past was an acceptable substitute for a preflight operational check, and that also could allow for dispatch with one crossfeed valve inoperative. However, since that time the FAA has determined that when an airplane is operated with a crossfeed valve (or a fuel balancing system) under the MEL, it should be operated with the same crossfeed valve operational check requirement as an airplane with a single crossfeed valve configuration, for the same reason that the preflight operational check is required for an airplane with a single crossfeed valve configuration. Therefore, the AD has not been changed in this regard.

Boeing, UAL, All Nippon Airways (ANA), and Captain David Stewart (Captain Stewart) asked that the language specified in figure 10 to paragraph (m) of the proposed AD be corrected to reflect that the allowed MMEL dispatch relief in that figure is for the fuel balance system instead of the crossfeed valve. UAL listed four specific MMEL provisions (specified in paragraphs (m)(1) through (4) of this AD) that are for various inoperative components or systems that cause the fuel balance system to be inoperative. Boeing and ANA stated that the figure should be revised to reflect that if the crossfeed valve fails to open, the FUEL CROSSFEED advisory message will not be displayed until 15 seconds after crossfeed is selected ON. Captain Stewart stated that the language in figure 10 to paragraph (m) of the proposed AD is erroneous and should have stated “Before the next ETOPS departure after the Fuel Balance Switch is determined to be inoperative . . . .”

The FAA agrees with the commenters' requests for the reasons provided. Figure 10 to paragraph (m) of this AD has been revised to correct the errors noted by the commenters.

United Airlines MEL Engineering asked that the MMEL operational check requirements in figure 4 to paragraph (h)(2) of the proposed AD, figure 6 to paragraph (i)(2) of the proposed AD, figure 7 to paragraph (j) of the proposed AD, and figure 8 to paragraph (k) of the proposed AD be revised to allow the use of either the “VALVE” light that is integral to the crossfeed valve switch, or the associated engine indication and crew alerting system (EICAS) message for the preflight operational check. UAL stated that if the “VALVE” light is inoperative, it would be unable to perform the check. UAL noted that MMEL relief is provided for the crossfeed valve lights.

The FAA does not agree with the commenter's request to perform the check using the “FWD/AFT FUEL CROSSFEED” EICAS message because there are certain crossfeed valve actuator failure modes that can cause the crossfeed valve to remain closed without the “FWD/AFT FUEL CROSSFEED” EICAS message being displayed. Short of directly observing the valve actuator, monitoring the VALVE light to verify that the crossfeed valve actually transitioned from closed to open is the only way to verify from the flight deck that the crossfeed valve transitioned to the open position. While MMEL relief is provided for the VALVE light, that relief is subject to the provision that the crossfeed valve is verified to operate correctly.

The FAA does agree to allow an alternative procedure that is effective if the “VALVE” light is inoperative, because it is possible to perform an operational check of the crossfeed valve by directly observing the movement of the actuator if the “VALVE” light is inoperative. The FAA has revised the referenced figures in this AD accordingly.

The Air Line Pilots Association, International (ALPA), Allied Pilots Association (APA), and Captain Stewart asked for revisions to the operational checks specified in the proposed AD. Captain Stewart asked that certain crossfeed valve actions in the proposed AD be changed to require one of the following: (1) Performing the crossfeed valve operational check in flight, prior to entering the ETOPS segment of the flight, and diverting the airplane to a suitable airport if the check fails, or (2) opening the crossfeed valve prior to entry into the ETOPS segment, leaving the crossfeed valve open throughout the ETOPS segment, and diverting the airplane to a suitable airport if the valve fails to open. Captain Stewart pointed out that operation with the crossfeed valve open for the duration of the ETOPS portion of the flight was proven effective at a major airline.

ALPA, while supporting the inclusion of an operational check prior to dispatch of ETOPS flights, stated that since the action in the proposed AD is not directed at a specific crossfeed valve failure mode, and is instead intended to identify and minimize the exposure to any crossfeed valve failure mode, it is important to check the crossfeed valve in its normal operating environment during flight. ALPA therefore requested that the proposed AD be revised to include an AFM requirement for airplanes with only one crossfeed valve, and a MEL requirement for airplanes with two crossfeed valves, for an operational check of the crossfeed valve during cruise, prior to the entering ETOPS airspace.

APA had no objection to the steps for checking the crossfeed valve operation, using the procedure recommended by the original equipment manufacturer (OEM). APA recommended checking the crossfeed valve immediately prior to the ETOPS segment of the flight where its operation has the potential to be critical.

The FAA does not agree with the commenters' requests. Although the agency agrees that operationally checking the crossfeed valve immediately prior to entering the critical ETOPS portion of each ETOPS flight would provide a greater reduction in the risk that a crossfeed valve will fail to open in the fuel-critical phase of flight should an engine failure occur, it would also significantly increase the costs associated with each discovered failure of a crossfeed valve. The cost of an air turn-back or diversion is significantly higher than the cost of a delay for maintenance, and is likely to be greater than the cost of a flight cancellation. The FAA considered the additional costs that would be incurred by operators from an air turn-back or diversion each time a crossfeed valve fails its check, and also considered the additional reduction in exposure to latent crossfeed valve failures that develop between the time of a preflight check and the time of an ETOPS entry check. As a result of these considerations, the FAA determined that the incremental reduction in exposure to the development of a latent crossfeed valve failure due to checking the crossfeed valve in-flight prior to entry into the critical ETOPS portion of the flight, when the low probability of an engine failure is also considered, did not justify imposing those significant additional operational costs and service disruptions on affected operators.

Before the NPRM was published, the FAA discussed with Boeing the value of conducting the crossfeed valve operational check during flight under cold soak conditions (which are part of the normal operating environment), versus performing the check on the ground. As a result of some of the comments on the NPRM, the agency discussed this issue again with Boeing, and placed a record of that discussion in the public rulemaking docket. Boeing stated that the valve actuator failure modes identified by other commenters that result in actuator failures only in cold soak conditions have been corrected in newer designs. Boeing further stated that the previous valve actuator configurations that had those issues are no longer in service. Boeing added that it had no reason to believe that a check of the current in-service crossfeed valves under cold, in-flight conditions would detect failures that would not be detected on the ground.

In addition, the FAA does not agree with the request to require operation with the crossfeed valve open throughout the ETOPS segment of flight. While operation in that configuration would prevent the need to open the crossfeed valve in the event of an engine failure, there are other failure scenarios (such as a large fuel leak or contamination of one main tank) where operating with the crossfeed valve open compromises the intended isolation and independence of the fuel system for each engine. Also, differences in fuel pump performance could cause the need for repeated switching off and on of fuel pumps to maintain balanced main tanks. The FAA considers this undesirable because a flight crew error could put one or both engines on suction feed, potentially causing engine flameout. It would also add start/stop cycles on the fuel pumps, which could cause additional pump failures. Such a procedure is not recommended or approved by either Boeing or the FAA. Finally, that procedure violates the required fuel usage procedures in the limitations section of the FAA-approved AFMs for all of the affected airplane models, which require the airplane to be operated with the crossfeed valve closed except when it is specifically required to be open for crossfeeding to maintain balanced main tanks or for a low fuel condition. Therefore, that procedure would also violate 14 CFR 91.9, which requires operators to operate aircraft in accordance with their applicable AFM limitations, unless a revised AFM was approved. In light of all these factors, the AD has not been changed in this regard.

Captain Stewart recommended that the proposed AD be revised to require an MMEL revision with clearly written provisions that identify the appropriate verification to confirm that no latent faults exist. Captain Stewart added that there is no benefit in mandating specific (M) & (O) procedures in the proposed AD, because it would cause an unnecessary administrative burden. Captain Stewart concluded that MELs published without the adequate (M) & (O) procedures indicates a failure of the MEL review/approval process at the flight standards district office (FSDO) or certificate management office (CMO) level.

The FAA infers that the commenter is requesting that the MEL entries for operation with an inoperative crossfeed valve or fuel balancing system (for Model 787 airplanes) state the requirement for and objectives of the MEL maintenance and operational requirements, rather than mandating specific maintenance or operational procedures. The FAA does not agree with the commenter's request. In this case, there are various ways that the operational or maintenance check can be done, some of which would not detect all of the possible crossfeed valve failure modes. Therefore, the FAA has determined that the agency should maintain control over the operational and maintenance check procedures used. Operators may, however, apply for an AMOC in accordance with paragraph (o) of this AD, provided they can show that their proposed alternative operational or maintenance procedures adequately address the unsafe condition. The AD has not been changed in this regard.

FedEx asked that the proposed AD be revised to exclude airplanes that are not used for ETOPS operations from the proposed requirement to revise the existing AFM and MEL. Specifically, FedEx requested that paragraphs (h), (i), (j), and (k) of the proposed AD be revised to add “Airplanes that are not used for ETOPS operations are exempt from the requirements of this paragraph.” FedEx stated that the proposed AD does not allow for exemption of affected fleets that are not certified or utilized for ETOPS operations. FedEx reported that its fleets include the types of airplanes affected by the proposed AD, but that only its Model 777F airplanes are certified for ETOPS operations.

The FAA does not agree with the commenter's request. The addition of the language proposed by the commenter is not sufficient to ensure that the existing AFM and MEL will be updated as required by this AD if there is an operational change in the future. However, operators may apply for an AMOC in accordance with paragraph (o) of this AD, provided they submit a proposal that (1) describes how the operator will ensure that future introduction of ETOPS operations includes the required AFM and MEL changes and (2) is supported by its FAA POI. The AD has not been changed in this regard.

FedEx and Japan Airlines (JAL) asked that the language in figure 8 to paragraph (k) of the proposed AD be revised to include instructions for a fuel crossfeed valve operational check including “steps on the ground prior to engine start.” The commenters requested that “prior to engine start” be changed to “prior to each flight.” FedEx stated that this language should be clarified given that the intent of the proposed AD is to prevent fuel in the main tank associated with the failed engine from being unavailable to the remaining operative engine, potentially resulting in a forced off-airport landing. JAL stated that the time for performing the operational check in the proposed AD is more restrictive than that in the MMEL. JAL added that since both are the same action, that compliance time should be the same.

The FAA acknowledges the commenters' concerns regarding potential misunderstanding of when to perform the operational check, and agree that clarification is necessary. The FAA infers that FedEx found that figure 8 to paragraph (k) of this AD was not sufficiently clear that the operational check is intended to be performed prior to each flight. The FAA presumes that FedEx's concern is that an operator might perform the operational check only once prior to the first engine start after placing the other inoperative crossfeed valve on MEL relief, but not prior to subsequent flights on the MEL. The intent of the procedure is that an operational check of the crossfeed valve be performed, by maintenance personnel or flightcrew, immediately prior to each ETOPS flight, as was stated in the “Proposed AD Requirements” section of the NPRM.

The FAA disagrees with using the specific language proposed by FedEx because its language would not alleviate the confusion about the intent of the requirement, and might be interpreted as allowing the check to be performed at any time prior to flight, as opposed to immediately prior to each flight. Although the comment from FedEx requested a change to figure 8 to paragraph (k) of this AD, which provides the required MEL revision for the Model 767, the FAA is satisfied that the MEL language in figure 7 to paragraph (j) of this AD, figure 8 to paragraph (k) of this AD, figure 9 to paragraph (l) of this AD, and figure 10 to paragraph (m) of this AD is clear with respect to the intended timing of performing the crossfeed valve operational check.

The general intent of operational procedures in the existing MEL is that they are associated with each flight conducted with the inoperative equipment. However, the comments provided caused the agency to reconsider whether the corresponding language in the AFM revisions required for airplanes equipped with single crossfeed valves are sufficiently clear regarding the intended timing for the check. In light of this, figure 1 to paragraph (g)(1) of this AD, figure 3 to paragraph (h)(1) of this AD, and figure 5 to paragraph (i)(1) of this AD of this AD have been revised to clarify the AFM limitations on airplanes equipped with a single crossfeed valve. However, the language in other figures, including figure 8 to paragraph (k) of this AD, have not been changed.

DAL asked that the time for performing the operational check be changed to the last hour of the cruise flight, instead of prior to each ETOPS flight. DAL stated that solder joint cracks at the connectors and electronic assembly could cause intermittent or hard fault failure of the motor-operated crossfeed valves (MOVs) that is difficult to detect during the ground test prior to each ETOPS flight. DAL added that a cold soak test at the end of the cruise flight will better detect intermittent MOV failures than a test performed on the ground.

The FAA does not agree with the commenter's request. At the FAA's request, Boeing examined the commenter's statements, and Boeing provided comments. A record of the phone conversation in which Boeing provided its comments was placed in the public rulemaking docket for this AD. Boeing stated that the valve actuator failure modes described by DAL that tended to occur in cold conditions were successfully addressed by design improvements, and that the valve actuator configurations that were susceptible to failures that could only be detected in cold conditions have been replaced on operational aircraft and are no longer in service. Boeing added that its more recent failure data shows that the timing of failures is random, and that the ability to detect a failed crossfeed valve is no longer significantly impacted by environmental conditions during the operational check.

As previously discussed, the FAA has determined that the greatest practical reduction in risk during operation with a single operational crossfeed valve would be achieved by requiring the operational check as close as possible to the beginning of the fuel-critical ETOPS portion of the flight. However, as noted, the impact of requiring the operational check in flight, just prior to entry into the ETOPS portion of the flight, would cause a significant number of air turn-backs and diversions at significant cost, so the FAA, with agreement from Boeing, proposed the check requirement for immediately prior to each ETOPS flight. Therefore, this AD has not been changed in this regard.

ALPA asked that the compliance time be reduced from 120 to 90 days. ALPA stated that the proposed AD would not require extensive, one-time maintenance actions on affected airplanes, but only revision of existing AFM and MEL actions, thus the commenter recommended a shorter compliance time.

The FAA does not agree with the commenter's request. In conjunction with Boeing, the FAA has determined that the compliance time for each airplane model will accommodate the time necessary to accomplish the actions required by this AD and maintain an adequate level of safety. In addition, the suggested compliance time change would alter the requirements of this AD, so additional rulemaking would be required, ultimately delaying issuance of the AD. The FAA finds that delaying this action further is inappropriate in light of the identified unsafe condition. However, if additional data are presented that would justify a shorter compliance time, the FAA may consider further rulemaking on this issue. The AD has not been changed in this regard.

American Airlines asked that Model 737-7, -8, and -9 (MAX) airplanes be added to the applicability of the proposed AD. American Airlines stated that the design on these airplanes is similar to that of the Model 737 Classic and Next Gen airplanes.

The FAA does not agree with the request. Although the commenter is correct about the similar design, this unsafe condition was identified at the time of certification of the 737 MAX airplanes as a planned airworthiness directive against the existing Model 737 airplanes. Therefore, Boeing included the requirement for the operational check of the crossfeed valve required by this AD in the FAA-approved AFM for the 737 MAX airplanes. The AD has not been changed in this regard.

Captain Stewart and APA stated that it is an engineering oversight that new production ETOPS airplanes are being certificated with only one fuel crossfeed valve installed.

The FAA acknowledges the commenter's concern about the risk associated with two-engine ETOPS airplanes that depend on a single active component to allow the remaining engine to access all of the remaining fuel on board after an engine failure. However, the allowance for such designs was not an engineering oversight, but a result of how the initial 120-minute ETOPS type-design standards were developed with existing airplanes in mind, of the later 180-minute ETOPS type-design standards being developed based on the 120-minute standards, and of conscious decision making by Boeing and the FAA associated with AD 88-21-03 R1 (which applies to certain Airbus Model A300 and A310-200 series airplanes, and Boeing Model 737-200, 737-300, 757-200, 767-200, and 767-300 series airplanes) and certification of the Model 737-700 airplane. Discussion of the potential need for improvements to airworthiness standards is outside the scope of the actions required by this AD. Therefore, the AD has not been changed in this regard.

Commenter Amirul Ismail provided what appears to be a pilot report of an instance where an operational check of the crossfeed valve on a Model 737-800 airplane resulted in the VALVE light failing to extinguish. The incident appears to be an indication-related fault rather than a valve actuator failure. No change to the final rule has been made.

The FAA reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the changes described previously and minor editorial changes. The FAA has determined that these minor changes:

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

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

The FAA also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.

The FAA estimates that this AD affects 3,252 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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 is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.

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:

Discussion

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 787-8, 787-9, and 787-10 airplanes. The NPRM published in the Federal Register on July 23, 2019 (84 FR 35352). The NPRM was prompted by reports that the NLG retracted on the ground, with weight on the airplane's wheels, due to the incorrect installation of an NLG downlock pin in the apex pin inner bore of the NLG lock link assembly. The NPRM proposed to require installing an insert to prevent installation of the pin in the incorrect location.

The FAA is issuing this AD to address the NLG downlock pin being incorrectly installed in the apex pin inner bore of the NLG lock link assembly, which could result in the NLG retracting on the ground, possibly causing serious injuries to personnel and passengers and substantial damage to the airplane.

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

American Airlines (AAL) requested that the FAA revise the applicability of the AD to specify the affected part numbers of the NLG lock link assembly rather than the affected airplanes because the affected parts may be swapped between airplanes. AAL noted that paragraph A.2. of Boeing Requirements Bulletin B787-81205-SB320040-00 RB, Issue 001, dated March 12, 2019, specifies to identify, modify, and part mark the spares. AAL suggested that once the apex bin inner bore insert is installed in the NLG lock link assembly in production, the NLG lock link assembly part number should also change. AAL requested that, should the FAA not revise the applicability of the proposed AD to affected part numbers, the applicability of the proposed AD be revised to include all Model 787 airplanes rather than only the airplanes specified in Boeing Requirements Bulletin B787-81205-SB320040-00 RB, Issue 001, dated March 12, 2019. AAL asserted that the unsafe condition applies to all airplanes.

The FAA disagrees with the request to revise the applicability of this AD. This AD does not require operators to identify, modify, or part mark their spares. Paragraph (g) of this AD specifies to accomplish the actions in accordance with the Accomplishment Instructions of Boeing Requirements Bulletin B787-81205-SB320040-00 RB, Issue 001, dated March 12, 2019, and does not specify to accomplish actions in accordance with paragraph A.2. of Boeing Requirements Bulletin B787-81205-SB320040-00 RB, Issue 001, dated March 12, 2019. Therefore, the FAA has determined that it is appropriate for this AD to apply to Boeing Model 787-8, 787-9, 787-10 airplanes, line numbers 6 through 848 inclusive, as specified in Boeing Requirements Bulletin B787-81205-SB320040-00 RB, Issue 001, dated March 12, 2019. Only these airplanes need to have the apex bin inner bore insert installed in order to address the identified unsafe condition.

Regarding AAL's request to revise the applicability to all Model 787 airplanes, Boeing will incorporate the apex pin inner bore insert as part of the airplane type design at line number 849 and subsequent. At that time, the NLG lock link assembly will change part numbers, and the airplane type design will be changed as a result. If an operator installs an NLG lock link assembly of a different part number than what is defined as airplane type design, then the airplane would be out of compliance. Consequently, all airplanes will be required to have the apex pin inner bore insert installed in the NLG lock link assembly. No changes have been made to the applicability of this AD.

AAL requested that the FAA revise the proposed AD to add a requirement that the NLG lock link assembly part number be changed upon installing the apex pin inner bore insert. AAL reasoned that the NLG lock link would be modified as an assembly and that, even though the airplane may be in the proper configuration, there would be no documentation to support the modification having been accomplished. AAL also noted that there is no consistent procedure for marking the change identification of the NLG lock link assembly amongst operators, which could lead to configuration issues when parts are exchanged between airlines. AAL suggested that operators should be informed on how Boeing is marking the change identification of the NLG lock link assemblies that are in production.

The FAA does not agree with the request. Boeing Requirements Bulletin B787-81205-SB320040-00 RB, Issue 001, dated March 12, 2019, identifies the Boeing assigned NLG lock link assembly part number prior to installation of the apex pin inner bore insert and indicates that there is no new Boeing part number for the changed NLG lock link assembly. Boeing Service Bulletin B787-81205-SB320040-00, Issue 001, dated March 12, 2019 (which is referred to in Boeing Requirements Bulletin B787-81205-SB320040-00 RB, Issue 001, dated March 12, 2019), specifies to mark the change identification of the NLG lock link assembly to indicate the apex pin bore insert has been installed. Operators are not required to change the identification as specified in Boeing Service Bulletin B787-81205-SB320040-00, Issue 001, dated March 12, 2019. Each operator has the latitude to identify the installed part that is consistent with their internal operating procedures. Operators may contact Boeing for information on how production airplanes are being marked for change identification of the NLG lock link assembly. The AD has not been changed in this regard.

United Airlines (UAL) requested that the FAA issue an AMOC that would allow the apex pin inner bore to be completely filled with sealant. UAL stated that it recognized the possible unsafe condition of the NLG downlock pin being incorrectly installed in the apex pin inner bore of the NLG lock link assembly, and plugged the apex pin inner bore with sealant as a preventive modification. UAL explained that it applied this modification to its entire fleet prior to the issue of Boeing Requirements Bulletin B787-81205-SB320040-00 RB, Issue 001, dated March 12, 2019, and it proposed to add the apex pin inner bore insert at the time of the next component overhaul to maintain configuration control.

The FAA disagrees with the request. The FAA and Boeing are concerned that filling the apex pin inner bore with sealant is not a long term solution because the sealant may deteriorate and degrade over the life of the landing gear. The FAA has determined that the proposed apex pin inner bore insert is a more robust solution that will address the unsafe condition and withstand the harsh environment of the NLG. The AD has not been changed in this regard. However, if any person has data that would justify an alternative solution, that person may request approval of an AMOC under the provisions of paragraph (i) of this AD.

UAL requested that the FAA identifies the step that specifies to mark the change identification of the NLG lock link assembly as Non-RC. UAL predicted that each operator will implement their own unique change identification method and reasoned that its own internal controls clearly identify its compliance with the requirements and accomplishment of the modification, which would negate the need to require change identification of the NLG lock link assembly.

The FAA agrees to clarify. The change identification of the NLG lock link assembly is not required for compliance. The change identification in the Requirements Bulletin is a “refer to” procedure. As stated in a note under the Accomplishment Instructions of Boeing Requirements Bulletin B787-81205-SB320040-00, Issue 001, dated March 12, 2019, procedures marked as “refer to” may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC. The AD has not been changed in this regard.

Boeing requested that the FAA clarify the Discussion of the NPRM to state that the NLG retraction incident that took place in March of 2016 was caused by the lack of an NLG downlock pin being installed on the NLG, not by the installation of an NLG downlock pin in an incorrect location. Boeing conceded that the event was an inadvertent NLG retraction, but maintained that the event was not due to the NLG downlock pin being installed incorrectly.

We partially agree with the request to change the Discussion section of the NPRM. As specified above, the design approval holder noted in their investigation that the inadvertent NLG retraction in March of 2019 was caused by a missing NLG downlock pin. However, we also received a safety recommendation submitted by Aviation Technical Services that indicated the probable cause was that the NLG downlock pin was installed in the wrong location for both incidents referenced in the Discussion section of the NPRM.

We note that we have received conflicting information about the March 2016 incident and what was the probable cause of the incident. However, we have not changed this final rule in this regard because the Discussion section of the NPRM is not restated in the final rule.

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

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

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

The FAA reviewed Boeing Requirements Bulletin B787-81205-SB320040-00 RB, Issue 001, dated March 12, 2019. The service information describes procedures for installing an insert into the apex pin inner bore of the NLG lock link assembly to prevent the NLG downlock pin from being inserted in the incorrect location. 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 estimates that this AD would affect 73 airplanes of U.S. registry. The agency estimates the following costs to comply with this AD:

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 is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.

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:

Discussion

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747-8F, and 747-8 series airplanes. The NPRM published in the Federal Register on April 8, 2019 (84 FR 13840). The NPRM was prompted by reports of uncommanded fore and aft movement of the Captain's and First Officer's seats. The NPRM proposed to require, for the Captain's and First Officer's seats, repetitive horizontal actuator identifications, repetitive checks of the HMS, a detailed inspection of the HMS for certain airplanes, and applicable on-condition actions. The NPRM also proposed to require an inspection to determine the part number and, if applicable, the serial number of the Captain's and First Officer's seats and applicable on-condition actions. The NPRM also proposed to provide an optional terminating action for the repetitive actions for certain seats.

The FAA is issuing this AD to address uncommanded fore and aft movement of the Captain's and First Officer's seats. An uncommanded fore or aft seat movement during a critical part of a flight, such as takeoff or landing, could cause a flight control obstruction or unintended flight control input, which could result in the loss of the ability to control the airplane.

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

Virgin Atlantic Airways and commenters Zhangyi Ye and Sunita Kavthekar expressed their support for the NPRM.

Lufthansa Airlines (Lufthansa) stated that it is not possible for its mechanics to do a maintenance log review on wing using the procedures specified in Part A.1.c. of Ipeco Service Bulletin 258-25-14, Issue 4, dated January 29, 2018.

The FAA infers that the commenter is referring to the concurrent requirements specified in Boeing Special Attention Service Bulletin 747-25-3653, Revision 1, dated October 19, 2018, as required by paragraph (g) of this AD.

The FAA offers the following clarification: The concurrent requirement in Ipeco Service Bulletin 258-25-14, Issue 4, dated January 29, 2018, contains Note 4, which specifies: “Part A—Inspection for the limit switch and the actuator assembly inspections can be accomplished on the aircraft or on a test fixture.” Part A—Inspection requires checks of maintenance logs. Maintenance log reviews are completed off-wing, typically where maintenance logs are kept. The on-aircraft, or on-test fixture activity described in Note 4, refers to the physical inspection of parts, which might be required, for example, to determine a part number, a serial number, or a condition. Therefore, the AD has not been changed in this regard.

Lufthansa stated that Boeing Special Attention Service Bulletin 747-25-3653, Revision 1, dated October 19, 2018, identified as a source of service information for performing certain actions in the proposed AD, does not provide a permanent and acceptable level of safety by including a redesign of the horizontal actuator (including the shaft), which is required to withstand and limit maximum loads to the horizontal output shaft to prevent failure at any phase of seat operation.

Lufthansa added that this could be achieved by decoupling the shaft when the maximum force is exceeded, or by a shutdown of the electronics when the voltage is too high. Lufthansa added that further inspections at the intervals specified in the service information are not considered effective, and conditions leading to horizontal actuator shaft failures can occur at any time in between these inspections. Therefore, a more effective solution would be a crew procedure. Lufthansa concluded that it expected a terminating action for modified/compliant airplanes (e.g., mandatory maintenance documentation amendments).

The FAA offers the following clarification. The FAA has identified the unsafe condition in this final rule as an uncommanded fore or aft seat movement during a critical phase of flight, such as takeoff or landing, that could cause a flight control obstruction or unintended flight control input, which could result in the loss of the ability to control the airplane.

The FAA does not concur with the commenter's statement that inspections at intervals are not effective. The FAA considered the safety implications in defining the actions required by this AD and determined the actions address the unsafe condition for all of the airplanes identified in this AD.

In addition, the terminating action for certain seats (those having part number series 3A258) is identified in paragraph (j) of this AD, which specifies the installation of a serviceable Captain's or First Officer's seat as specified in, and in accordance with, the Accomplishment Instructions of Boeing Special Attention Service Bulletin 747-25-3653, Revision 1, dated October 19, 2018. A serviceable Captain's or First Officer's seat is defined in paragraph 3.A. of the referenced service information (i.e., certain seat part numbers that have an horizontal actuator with Artus part number (P/N) AD8650503 at `Amendment C' or later, which is the redesigned horizontal actuator that is designed to withstand the limit loads that contribute to the unsafe condition).

Additionally, as specified in the referenced service information, if the horizontal actuator is not P/N AD8650503 `Amendment C' or later, the operator has the option to install a power-deactivated seat as specified in the appropriate airplane maintenance manual (AMM) procedure (AMM procedure 25-11-01-01), in lieu of the terminating action or until the horizontal actuator can be serviced in accordance with the appropriate service information. This provision removes the unsafe condition in the time between the inspections.

For seats on which a terminating action is not yet available, the FAA has determined that repetitive checks of the HMS and the option to install a power-deactivated seat adequately address the unsafe condition. Thus, a crew procedure is not needed. However, if the FAA obtains and analyzes additional data that indicates the unsafe condition is not addressed by this AD, The FAA might consider further rulemaking to mandate a terminating action for all seats. The AD has not been changed in this regard.

United Parcel Service Co. (UPS) asked that paragraph (g) of the proposed AD be changed to mandate accomplishment of the required actions by using certain Ipeco service bulletins. UPS stated that paragraph (g) would require accomplishment of the actions using Boeing Special Attention Service Bulletin 747-25-3653, Revision 1, dated October 19, 2018. UPS noted that for the 3A258-004X and 3A090-00XX seats, other than simple foreign object debris (FOD) inspections, the referenced Boeing service information effectively specifies accomplishment of the inspections and modifications per Ipeco Service Bulletin 258-25-14, Issue 4, dated January 29, 2018; and inspections per Ipeco Service Bulletin 258-25-13, Issue 3, dated November 27, 2017, or per Ipeco Service Bulletin 211-25-06, Issue 2, dated March 21, 2018; and inspections per Ipeco Service Bulletin 211-25-05, Issue 2, dated March 21, 2018.

UPS recommends that paragraph (g) mandate the accomplishment of the applicable Ipeco service bulletin, depending on which seat is installed.

UPS also stated that there are NPRMs that mandate the same Ipeco service information via fleet-specific Boeing service information on Model 757 and 767 airplanes. UPS asked that the proposed AD be applicable to the seats using Ipeco service information for compliance, instead of applicable to the airplanes using Boeing service information for compliance.

UPS added that since the seats are interchangeable across several fleets, mandating ADs against those fleets could result in, for example, a specific seat being installed on a Model 747 airplane with records identifying compliance with a Model 767 airplane AD. UPS noted that this could lead to confusion and questions regarding compliance, when there is no notable difference between the two ADs, and the AD mandating a component service bulletin using a fleet service bulletin leaves a compliance trap for the operators. UPS recommends there be two separate ADs for this unsafe condition; one mandating the Ipeco service information, and one mandating the Boeing service information for the on-aircraft checks. UPS added that this would allow operators currently using the Ipeco service information at a shop or during a C-check to take credit for those actions at a component level in lieu of an airplane level.

The FAA infers that the commenter is asking that the agency use the Ipeco service information instead of the Boeing service information; the FAA does not agree. The Ipeco service information would necessitate a component AD, and a component AD would require operators of all airplanes on which an Ipeco seat is installed to inspect their airplanes for the affected part number.

However, the potential unsafe condition has been identified for only those airplanes that are specified in the Boeing service information. An unsafe condition has not been identified for the Ipeco seats identified in this AD that are installed on other aircraft types. Therefore, the FAA has determined that a component AD is not appropriate, which is why this AD addresses Model 747 series airplanes and other AD actions require similar actions on other Boeing airplanes for which the unsafe condition exists. Each AD addresses the unsafe condition that might exist on the airplanes identified in the applicability of each AD. If a seat has been removed from a Model 767 airplane and installed on a Model 747 airplane, the actions required by this AD would still be applicable to that seat even if that seat had previously been shown to be in compliance with a Model 767 airplane AD.

In addition, changing this airplane AD to a component AD would also require an additional public comment period and would unnecessarily delay issuance of this final rule. Therefore, the AD has not been changed in this regard.

One commenter, Arjun C, stated that movement of the Captain's and First Officer's seats during flight could potentially impair the ability to effectively fly the airplane and keep all passengers safe. The commenter pointed out that it might be worth expanding the applicability in the proposed AD to all civilian airplanes flying in U.S. airspace, and noted that simply calling out a single company might be a bit myopic in scope. The commenter concluded that, overall, the proposed AD should be effective if executed properly.

The FAA does not agree with the request. The unsafe condition defined in this AD affects only airplanes with the seats having Ipeco part numbers identified in the referenced Boeing service information. Expanding the applicability as requested would cause an undue burden on operators with airplanes not subject to the unsafe condition. Therefore, the AD has not been changed in this regard.

Boeing asked that the “Costs of Compliance” section in the NPRM be changed to reflect the “actual cost” of all the actions. Boeing stated that the seat identification, inspection, and checks involve only labor and should not include the cost of the actuator. Boeing also noted that the “Cost on U.S. Operators” for the inspection should be changed from “$8,075 per seat” to “$85 per seat,” and for the checks the cost should be changed from “$16,150 per seat, per check cycle” to “$170 per seat, per check cycle.”

The FAA agrees that the costs of the seat identification, inspection, and checks do not include a cost for parts. In addition, the FAA has revised the figures for these actions in the “Cost on U.S. Operators” column by providing only the estimated fleet cost without reference to cost per seat.

Boeing asked that the actuator cost for the overhaul or replacement be increased from “Up to $6,400 per seat” to “Up to $16,091 per seat,” based on information received from the parts manufacturer with the increased parts cost.

The FAA agrees with the commenter's request to change the parts cost, for the reason provided. The FAA has changed the parts cost for the overhaul or replacement specified in the “Costs of Compliance” section accordingly.

The FAA has reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the changes described previously and minor editorial changes. The FAA has determined that these minor changes:

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

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

The FAA also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.

The FAA reviewed Boeing Special Attention Service Bulletin 747-25-3644, Revision 1, dated July 17, 2018. This service information describes procedures for an inspection to determine the part number, and, if applicable, the serial number of the Captain's and First Officer's seats and applicable on-condition actions. On-condition actions include an inspection of each seat's fore/aft and vertical manual control levers for looseness; moving the adjustment nut, tightening the lock nut, readjusting the control lever, and doing a functional test; and installing a serviceable seat.

The FAA also reviewed Boeing Special Attention Service Bulletin 747-25-3653, Revision 1, dated October 19, 2018. This service information describes procedures for repetitive horizontal actuator identifications, repetitive checks of the HMS, a detailed inspection of the HMS, and applicable on-condition actions. On-condition actions include clearing the seat tracks of FOD, an overhaul of the HMS, and checks of the HMS. The service information also describes procedures for an optional terminating action for the repetitive checks by installing a serviceable Captain's or First Officer's seat.

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 estimates that this AD affects 95 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class D airspace, the Class E surface airspace, and the Class E airspace extending upward from 700 feet above the surface, and establishes a Class E airspace area designated as an extension to Class D and Class E surface areas at La Crosse Regional Airport, La Crosse, WI, to support IFR operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (84 FR 35049; July 22, 2019) for Docket No. FAA-2019-0503 to amend the Class D airspace, the Class E surface airspace, and the Class E airspace extending upward from 700 feet above the surface, and establish a Class E airspace area designated as an extension to Class D and Class E surface areas at La Crosse Regional Airport, La Crosse, WI. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

This document amends FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11D lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71:

Amends the Class D airspace at La Crosse Regional Airport, La Crosse, WI, by updating the name (previously La Crosse Municipal Airport) and geographic coordinates of the airport to coincide with the FAA's aeronautical database; and replaces the outdated term “Airport/Facility Directory” with “Chart Supplement”;

Amends the Class E surface airspace at La Crosse Regional Airport by updating the name (previously La Crosse Municipal Airport) and geographic coordinates of the airport to coincide with the FAA's aeronautical database; adding an altitude limit of 3,200 feet MSL; and replaces the outdated term “Airport/Facility Directory” with “Chart Supplement”;

Establishes a Class E airspace area designated as an extension to Class D and Class E surface areas at La Crosse Regional Airport within 1 mile each side of the 359° bearing from the La Crosse Regional Airport extending from the 4.4-mile radius of the airport to 5.3 miles north of the airport; within 1 mile each side of the 359° bearing from the La Crosse Regional: RWY 18-LOC extending from the 4.4-mile radius of the La Crosse Regional Airport to 5.3 miles north of the La Crosse Regional: RWY 18-LOC; within 1 mile each side of the 036° bearing from the La Crosse Regional Airport extending from the 4.4-mile radius of the airport to 6.2 miles northeast of the airport; within 1 mile each side of the 119° bearing from the La Crosse Regional Airport extending from the 4.4-mile radius of the airport to 5.7 miles east of the airport; and within 1 mile each side of the 216° bearing from the La Crosse Regional Airport extending from the 4.4-mile radius of the airport to 5.6 miles southwest of the airport;

And amends the Class E airspace extending upward from 700 feet above the surface at La Crosse Regional Airport by updating the name (previously La Crosse Municipal Airport) and geographic coordinates of La Crosse Regional Airport to coincide with the FAA's aeronautical database; removes the La Crosse VOR/DME and the associated extension from the airspace legal description; updates the name of Mayo Clinic Health System-Franciscan Healthcare (previously Saint Francis Medical Center) to coincide with the FAA's aeronautical database; adds an extension 1 mile each side of the 359° bearing from the La Crosse Regional Airport extending from the 6.9-mile radius of the airport to 7.1 miles north of the airport; adds an extension within 2.9 miles each side of the 036° bearing from the La Crosse Regional Airport extending from the 6.9-mile radius of the airport to 9.6 miles northeast of the airport; adds an extension 1 mile each side of the 119° bearing from the La Crosse Regional Airport extending from the 6.9-mile radius of the airport to 7.4 miles southeast of the airport; and adds an extension 2 miles each side of the 216° bearing from the La Crosse Regional Airport extending from the 6.9-mile radius of the airport to 11.3 miles southwest of the airport.

This action is necessary due to an airspace review caused by the decommissioning of the La Crosse VOR, which provided navigation information for the instrument procedures at this airport, as part of the VOR MON Program.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class D airspace, the Class E surface airspace, the Class E airspace designated as an extension to Class D and Class E surface airspace, and the Class E airspace extending upward from 700 feet above the surface at Alpena County Regional Airport, Alpena, MI, to support IFR operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (84 FR 35047; July 22, 2019) for Docket No. FAA-2019-0549 to amend the Class D airspace, the Class E surface airspace, the Class E airspace designated as an extension to Class D and Class E surface airspace, and the Class E airspace extending upward from 700 feet above the surface at Alpena County Regional Airport, Alpena, MI. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

This document amends FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11D lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71:

Amends the Class D airspace to within a 4.3-mile radius (decreased from a 4.4-mile radius) of Alpena County Regional Airport, Alpena, MI; and updates the outdated term “Airport/Facility Directory” with “Chart Supplement”;

Amends the Class E surface airspace to within a 4.3-mile radius (decreased from a 4.4-mile radius) of Alpena County Regional Airport; adds a 3,200 MSL altitude limit to the airspace legal description; removes the Alpena VORTAC and associated extensions from the airspace legal description; and updates the outdated term “Airport/Facility Directory” with “Chart Supplement”;

Amends the Class E airspace designated as an extension to Class D and Class E surface areas at Alpena County Regional Airport by amending the extension to the north to within 4.8 mile west and 3 miles east of the Alpena VORTAC 355° radial extending from the 4.3 mile radius of the Alpena County Regional Airport to 7 miles north of the Alpena VORTAC; and removes the extension to the south from the airspace legal description as it is no longer needed;

And amends the Class E airspace extending upward from 700 feet above the surface to within a 6.8-mile radius (decreased from a 7-mile radius) of the Alpena County Regional Airport; removes the FELPS NDB and the associated extension from the airspace legal description; adds an extension 10 miles west and 6 miles east of the Alpena VORTAC 355° radial extending from the 6.8-mile radius of the Alpena County Regional Airport to 10 miles north of the Alpena VORTAC; adds an extension 3.9 miles each side of the Alpena VORTAC 194° radial extending from the 6.8-mile radius of the Alpena County Regional Airport to 14.3 miles south of the Alpena VORTAC; and updates the name of MidMichigan Medical Center-Alpena, Alpena, MI (previously Alpena General Hospital), to coincide with the FAA's aeronautical database.

This action is necessary due to an airspace review caused by the decommissioning of the Au Sable VOR, which provided navigation information for the instrument procedures at these airports, as part of the VOR MON Program.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary.

This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

In this final rule, we are revising sections in 34 CFR part 5 based on statutory amendments to FOIA (5 U.S.C. 552) that were made by the Improvement Act (Pub. Law 114-185) and to make a minor, technical update. The following paragraphs describe the specific statutory changes and the revisions we are making to the regulations.

Statute: The Improvement Act amended 5 U.S.C. 552(a)(2) to require that each agency ensure that certain categories of records are available for public inspection in an electronic format, rather than available in person for copying, as previously required. The amendments also expanded the categories of records that must be made available for public inspection to include records that have been requested under FOIA three or more times.

Current Regulations: Current § 5.10(a) requires the Department to maintain a public reading room containing certain agency records required to be made available for public inspection and copying under FOIA. Current § 5.10(b) provides that the public reading room will include certain categories of records, such as final opinions, orders in adjudications, and agency records released to the public pursuant to a FOIA request and that are likely to be the subject of future FOIA requests. Current § 5.10(c) requires the Department to make the reading room records available for inspection electronically.

New Regulations: We are amending § 5.10 to reflect the emphasis in 5 U.S.C. 552(a)(2) on electronic inspection for agency records created on or after November 1, 1996, including by renaming the section and reorganizing the requirements. Although the new regulations continue to allow the Department to maintain its reading room, we are revising § 5.10 to highlight that the Department is only required to make such records available for public inspection in an electronic format, rather than available in person for copying. In § 5.10(a), we are adding to the list of records required to be made available records requested three or more times under FOIA, and, in § 5.10(c), we have clarified that, for records created before November 1, 1996, the Department will continue to make hard copies available upon request in accordance with 5 U.S.C. 552(a)(3).

Reason: We are revising § 5.10 so it aligns with the Improvement Act.

Statute: Under 5 U.S.C. 552(a)(3)(A), a request for records must reasonably describe the records and be made in accordance with published rules stating the time, place, fees, and procedures to be followed. It does not explicitly require a requester to provide contact information upon filing a request.

Current Regulations: Under current § 5.20(a), a FOIA request for an agency record must be in writing (via paper, facsimile, or electronic mail) and transmitted to the Department as indicated on the Department's website.

New Regulations: We are adding to § 5.20(a) that each request must include a valid email or physical address, and we are omitting reference to the manner in which the submission must be made, as the procedures are specified on the Department's FOIA web page.

Reason: The Department has received requests without the requester's contact information, which makes it difficult for the Department to transmit the responsive records to the requester as well as to seek clarification regarding the request, if needed. Further, the Department elects to specify the submission procedures on its FOIA web page, rather than its regulations, to maintain flexibility to change the procedures to adapt to changing circumstances and best serve the public.

Statute: The Improvement Act amended 5 U.S.C. 552(a)(6) in several respects. First, under section 552(a)(6)(B)(ii), if a request is extended more than 10 working days from the 20-day processing time limit, the requester has the right to seek dispute resolution services from the Office of Government Information Services. Second, when a requester receives a notice of determination, the requester may seek dispute resolution services from the FOIA Public Liaison.

Current Regulations: The current regulations do not reflect the rights and procedures that were created through the Improvement Act.

New Regulations: We are amending § 5.21 to provide requesters with the opportunity to seek dispute resolution assistance from the Office of Government Information Services when a processing extension is more than 10 days after the 20-day time limit. We are also amending § 5.21 to require written notification to the requester of the right to seek dispute resolution from the Public FOIA Liaison or the Office of Government Information Services regarding issues with the processing of the request.

Reason: We are revising § 5.21 so it aligns with the Improvement Act.

Statute: Under 5 U.S.C. 552(a)(4)(A)(viii)(I), an agency may not generally charge search fees (or, in certain instances, duplication fees) if it has failed to reply to a request within the time limit under section 552(a)(6), except in two instances. First, if unusual circumstances (as described in section 552(a)(4)(A)(viii)(II)(aa) and (bb)) exist, section 552(a)(4)(A)(viii)(II) authorizes an agency to charge search fees (or duplication fees) if it provides timely written notice to the requester in accordance with section 552(a)(4)(A)(viii)(II)(aa) and it complies with the request within 10 days of the end of the 20-day processing period. Second, an agency may charge search fees (or duplication fees) if more than 5,000 pages are necessary to respond to the request and the agency has discussed with the requester via written mail, electronic mail, or telephone (or made at least three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with section 552(a)(4)(A)(viii)(II)(bb).

Current Regulations: The current regulations allow the Department to charge fees without regard to whether the Department has exceeded the processing time (or a negotiated extension).

New Regulations: We are amending § 5.32 so that search fees or duplication fees can be assessed in the event the Department exceeds the processing time only if the requester has been timely advised of unusual circumstances and either: (1) the Department complies with the request within 10 days of the end of the 20-day processing period; or (2) more than 5,000 pages are necessary to respond to the request, and the Department has contacted the requester (or made at least three good-faith attempts) about ways to narrow or revise the scope of the request.

Reason: We are revising § 5.32 so it aligns with the Improvement Act.

Statute: The Improvement Act amended 5 U.S.C. 552(a)(6)(A)(i)(III)(aa) to require agencies to provide at least 90 days to appeal an adverse determination.

Current Regulations: The current regulations provide a requester with 35 calendar days from the date of an adverse determination letter, issued by the Department, to submit an appeal.

New Regulations: We are amending § 5.40 so requesters can file an appeal within 90 calendar days of the date on the adverse determination letter issued by the Department.

Reason: We are revising § 5.40 so it aligns with the Improvement Act.

Under Executive Order 12866, it must be determined whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of FOIA, the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f)(1) of Executive Order 12866.

Under Executive Order 13771, for each new regulation that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866 and that imposes total costs greater than zero, it must identify two deregulatory actions. For FY 2020, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions. Because this final rule is not a significant regulatory action, Executive Order 13771 does not apply.

We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things, and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing these final regulations only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that these final regulations are consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action does not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.

In accordance with the Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The final regulations are not expected to have a significant impact because they are designed to merely implement statutory changes to the FOIA process. These changes relate to the procedures we use for administering the FOIA program, and the additional burden they impose on our stakeholders or the Department, if any, is minor.

Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the Department generally offers interested parties the opportunity to comment on proposed regulations. However, the APA provides that an agency is not required to conduct notice and comment rulemaking when the agency for good cause finds that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B). Rulemaking is “unnecessary” when “the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.” Utility Solid Waste Activities Group v. EPA, 236 F.3d 749, 755 (DC Cir. 2001), quoting U.S. Department of Justice, Attorney General's Manual on the Administrative Procedure Act 31 (1947) and South Carolina v. Block, 558 F. Supp. 1004, 1016 (D.S.C. 1983). These regulations merely reflect statutory changes or make minor changes to agency procedure and do not establish or affect substantive policy. Therefore, under 5 U.S.C. 553(b)(B), the Secretary has determined that proposed regulations are unnecessary.

The APA generally requires that regulations be published at least 30 days before their effective date, unless the agency has good cause to implement its regulations sooner (5 U.S.C. 553(d)(3)). As previously stated, because the final regulations merely reflect statutory changes and minor changes to agency procedure, there is good cause to waive the delayed effective date in the APA and make the final regulations effective upon publication..

The Regulatory Flexibility Act does not apply to this rulemaking because there is good cause to waive notice and comment under 5 U.S.C. 553.

The final regulations do not create any new information collection requirements.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register. You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF, you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

For the reasons discussed in the preamble, the Secretary amends part 5 of title 34 of the Code of Federal Regulations as follows:

On December 6, 2012, VA published an interim final rule in the Federal Register, 77 FR 72738, implementing VA's authority to use contracts and provider agreements to pay for certain State nursing home care under section 105 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 (the Act), Public Law 112-154, 126 Stat. 1165, which was enacted on August 6, 2012. The interim final rule became effective on February 2, 2013, in accordance with the statutory deadline to implement this authority. Interested persons were invited to submit comments on or before February 4, 2013. VA received 13 comments.

Subsequently, section 103 of the VA MISSION Act of 2018, Public Law 115-182 (conforming amendments for State veterans homes), amended 38 U.S.C. 1745(a), which authorizes VA agreements for State home nursing home care. The amendments require non-substantive changes to § 51.41.

In addition to finalizing the interim final rule and implementing section 103 of the VA MISSION Act of 2018, we are also correcting a patent error in paragraph (e) and making other non-substantive changes to bring the section current with amendments to 38 CFR part 51 since publication of the interim final rule, to include updating a United States Code citation in paragraph (g). We are also renaming the agreements VA enters with State homes to ensure the name is not confused with the name of another type of agreement VA may enter under the authority of a different section of title 38 United States Code. We discuss these below, following the responses to the public comments.

Based on the rationale set forth in the interim final rule and in this document, VA is adopting the interim final rule as final with minor changes described below.

VA pays State veterans homes for providing nursing home care to eligible veterans under 38 U.S.C. 1741 and 1745. Prior to the Act, VA paid State homes for this care on a per diem basis under a grant program. The revised regulation at 38 CFR 51.41 authorized VA to use contracts or provider agreements (hereafter State home care agreements) to pay for the nursing home care of certain veterans in State homes: Those who need nursing home care for a service-connected disability, and those who need nursing home care and have either a singular or combined service-connected disability rating of 70 percent or more or a rating of total disability based on individual unemployability.

The Act required VA to consult with State homes to develop the payment methodology for contracts and State home care agreements. To accomplish that requirement, VA met with groups representing the State homes and with representatives of individual State veterans homes during the development of the interim final rule.

In the interim final rule, VA adopted a “prevailing rate” to determine the daily payments that VA will make to State homes that provide care for veterans under State home care agreements. The prevailing rate is a daily payment rate VA calculates for each State home. It incorporates, among other things, Centers for Medicare and Medicaid Services (CMS) payment rates, CMS case-level data for the geographic area, local labor costs, and physicians' fees.

During the comment period for the interim final rule, VA received several comments from State veterans homes and groups representing them. A consideration of these comments follows. Some of the issues raised by the commenters can be grouped together by similar topics, and we have organized our discussion of the comments accordingly.

Several commenters raised concerns about high-cost drugs and medications. Some stated that State homes have experienced extraordinarily high costs for drugs and medications provided to the veterans whose care would be eligible for payment by contract or State home care agreement under § 51.41. These commenters have requested that VA amend its regulations to allow State homes to negotiate with VA on a case-by-case basis for additional payments to cover the costs of high-cost drugs and medications required for a veteran's care.

By law, VA payment to a State home for care of a veteran is payment in full for care the State home provided that veteran under § 51.41. 38 U.S.C. 1745(a)(3). VA was required by statute to develop a payment methodology to adequately reimburse State homes for the care provided under the agreements with VA. 38 U.S.C. 1745(a)(2). With consultation of the State homes, as discussed above, VA established two methods of payment in § 51.41, one each for State home care agreements and contracts respectively. State home care agreements compensate State homes using the prevailing rate, which is calculated to compensate State homes for the average cost of providing nursing home care to the veterans whose care is covered in § 51.41, including, as indicated in § 51.41(c)(2), the cost of drugs and medicines. State homes that enter into contracts, on the other hand, will be compensated at the rate negotiated in the contract. State home care agreements are not individually negotiated; if a State home cannot accept the prevailing rate that VA offers (per request by the State homes) in a State home care agreement, that State home has the option to request a contract under § 51.41 and would then be able to negotiate with VA specific rates for payments for drugs and medications. VA, as required by the statute, consulted with State homes to establish the prevailing rate, and the availability of contracts allows for separate rates to be negotiated when necessary. VA believes that by creating both options it ensures that adequate compensation can be available to State homes in all situations.

Finally, there is no clear indication that State homes are being inadequately compensated for this care, even when drugs and medications must be supplied. VA received a comment from an organization representing State homes that expressed uncertainty as to whether the expenses associated with supplying high-cost drugs and medications negatively affect the State homes that receive the prevailing rate under State home care agreements. The organization proposed to study its members' drug costs after implementation of the contracting and State home care agreement authority in § 51.41 to see whether State homes are being adequately reimbursed for the costs of drugs and medications or whether State homes experience consistent hardships from providing high-cost medications. We thank the commenter for undertaking this effort and will review the results when provided. VA makes no changes to the regulation based on these comments.

Several commenters requested that VA allow State homes receiving payments under State home care agreements to opt out of receiving the physician fee component of the prevailing rate. The physician fee component is a set dollar figure that represents the average cost to a State home of providing certain physician services to veterans that are required by 38 CFR 51.150. Typically, this care is provided by physicians who are on the staff of the State home. The commenters explained that some State homes do not retain salaried physicians on their staffs to provide physician services to veterans; these State homes instead arrange for outside physicians to provide care. State homes allow these outside physicians to bill third parties, including Medicare. By accepting payment under § 51.41, State homes must use the VA payments to pay the outside physicians and cannot permit these outside physician services to be reimbursed by other payers.

VA recognizes that some State homes may not have physicians on staff, but the law requires VA to adequately reimburse State homes for nursing home care (38 U.S.C. 1745(a)(2)), and we have determined by regulation that certain physician services are part of nursing home care. Moreover, the law provides that VA payment made under the authority of 38 U.S.C. 1745 to a State home for nursing home care constitutes payment in full to the State home for the nursing home care furnished to that veteran. VA thus cannot make an exception for these State homes in this case. VA therefore makes no changes based on these comments.

Some commenters requested that VA provide additional payments for therapy services. One commenter specified, “VA should reimburse the full costs of therapy services in the State [h]omes . . . to ensure residents receive the same high level of services provided in private nursing homes.” The commenter explained that State home residents typically receive 50 percent of the therapy that residents of private nursing homes would receive because State homes can only bill for Medicare Part B services in accordance with Medicare Part B requirements for the level of services provided. If veterans in State home nursing homes need therapy, State homes are required by § 51.160 to provide it to receive per diem. For veterans in State home nursing homes on whose behalf VA pays basic per diem under § 51.40, State homes cannot cut back on providing therapy just because they do not obtain reimbursement from an outside source in addition to the VA per diem. For veterans covered by this rulemaking, however, payments under State home care agreements are computed to include reimbursement for necessary therapy. State homes that believe this payment fails to cover the full cost of therapy have the option to request a contract under § 51.41 and to negotiate specific rates for therapy. VA makes no changes based on these comments.

One commenter urged VA to “reimburse the full cost of emergency ambulance transportation to the VA hospital (or closest acute care facility in an emergent situation)” for emergency treatment of veterans whose care is paid under § 51.41. The commenter stated: “An ambulance is required to take [residents] to the `nearest facility' which may not be a VA hospital. Currently, for emergency ambulance transfers, the VA hospital will bill Medicare Part A and bill the remainder to the State [h]ome. If a resident is transported to the hospital for a service-connected disability or secondary service-connected disability by association the VA should pay for this transfer consistent with the `total cost of care' reimbursement provision of the law.” This comment does not accurately describe the law or VA's current policies and practices.

VA has no authority to bill Medicare or State homes for a veteran's transportation in an ambulance, as suggested by the commenter. The ambulance service provider would typically be the party seeking payment for the services it provides. Moreover, in most circumstances, VA could pay for an ambulance to a VA facility for a veteran for whom VA pays per diem under § 51.41.

Whether a veteran's ambulance transportation to a VA facility is paid for by VA is dependent on that Veteran's eligibility to receive special mode transportation under VA's beneficiary travel authority, 38 U.S.C. 111, 38 CFR part 70. An ambulance is considered a special mode of transportation under this authority. VA pays for special modes of transportation if three criteria set forth in 38 CFR 70.4(d) are met: The beneficiary is unable to defray the cost of transportation under 38 CFR 70.10(c), the travel is medically required, and VHA approves the travel in advance or the travel was undertaken in connection with a medical emergency. By regulation, all veterans who have a service-connected disability rated at least 30 percent disabling and all veterans traveling in connection with treatment of a service-connected disability are considered “unable to defray” the expenses of travel. 38 CFR 70.10(c)(3) and 38 CFR 70.10(c)(4). VA makes case-specific determinations regarding the clinical necessity of the special mode of transportation.

Whether a veteran's ambulance transportation to a non-VA facility is paid for by VA is dependent on the nature of the treatment provided and the service-connected disability status of the Veteran. When emergency treatment can be reimbursed by VA under 38 U.S.C. 1728, the ambulance transportation will be paid for in accordance with the same rules relating to beneficiary travel that are described above. Reimbursement is authorized under 38 U.S.C. 1728 when the emergency treatment provided is for: An adjudicated service-connected disability; a non-service-connected disability associated with and held to be aggravating a service-connected disability; any disability of a veteran if the veteran has a total disability permanent in nature from a service-connected disability; or any illness, injury, or dental condition of a veteran who is a participant in a vocational rehabilitation program, and is medically determined to have been in need of care or treatment to make possible the veteran's entrance into a course of training, or prevent interruption of a course of training, or hasten the return to a course of training which was interrupted because of such illness, injury or dental condition.

When the treatment provided does not meet the criteria of 38 U.S.C. 1728, it may be reimbursed in accordance with the requirements of 38 U.S.C.1725. When the treatment provided meets the requirements for reimbursement under 38 U.S.C. 1725, ambulance transportation is paid for in accordance with the payment limitations regulated at 38 CFR 17.1005. Generally speaking, this authority is used to reimburse emergency treatment that is for a non-service-connected condition.

Regardless of which authority is being relied upon for reimbursement of the cost of ambulance transportation, the rates paid are determined by existing regulations. In many instances VA pays the actual cost of the transportation, and in other circumstances, when payment is accepted by vendors, regulations state that it will serve as payment in full. VA therefore makes no changes to the regulations based on this comment.

The same commenter stated that “VA should reimburse the full cost of any service” required by a veteran who has been rated by VA as 100 percent disabled due to a service-connected disability. The commenter said that when such veterans are “non-ambulatory due to `patient safety' ” and are transported to a VA medical facility for treatment of a non-service-connected disability, the resident or the State must pay for the care. The commenter further advised that while the option for a case-by-case agreement between the VA medical facility and the resident or State home exists for this gap in covered care, if an agreement is not reached or accepted, the cost is borne by the veteran with a rating of 100 percent disabled due to service-connected disability, which is inconsistent with the “total cost of care” reimbursement provision in the law.

This comment does not accurately reflect the State home and VA's responsibilities to provide care to these veterans. A veteran who is rated as 100 percent disabled due to a service-connected disability would not be responsible for the costs of any care provided at a VA facility under the circumstances described in this comment, including care for a non-service-connected condition. If the care needed is care that the State home is required to provide in accordance with the State home's contract or State home care agreement with VA entered into pursuant to § 51.41, the State home can choose to use the funds it receives under that contract or agreement to obtain that care from VA. VA makes no changes to the regulation based on this comment.

Several commenters requested that VA include a statement in the State home care agreement that veterans whose care is eligible for payment under a State home care agreement “do not forfeit their eligibility for VA benefits and programs.” VA emphasizes that veterans residing in a State home retain their eligibility for all other VA care and services. VA will work with State homes by way of national organizational meetings and through local VA medical center staff to provide clarification or education that may be needed to ensure veterans in State homes receive the care and services for which they are eligible. These comments, however, refer to the content of the State home care agreements and not the regulation, and VA therefore makes no changes to the regulation based on these comments.

Regarding minor changes this final rulemaking makes to the interim final rule, we are removing the authority citation following § 51.41. Prior to the VA MISSION Act of 2018, section 1745(a) required that an agreement, other than a contract, between VA and a State home for nursing care be under section 1720(c)(1) of title 38. The VA MISSION Act of 2018 removed this requirement. Public Law 115-182, sec. 103(a). 38 U.S.C. 1720(c)(1)(B) allowed VA to use procedures for entering into provider agreements under section 1866(a) of the Social Security Act (codified at 42 U.S.C. 1395cc). By removing the reference to 38 U.S.C. 1720 from 38 U.S.C. 1745, the MISSION Act makes clear that VA's authority to enter into contracts and agreements with State homes for nursing home care derives solely from 38 U.S.C. 1745 and not from 38 U.S.C. 1720 or from 42 U.S.C. 1395cc, as was cited in the interim final rule.

We are removing, rather than revising the authority citation to be consistent with the requirements of the Office of the Federal Register, which publishes all federal regulations, for placement of authority citations in the Code of Federal Regulations. The authority for a part of a title of the Code of Federal Regulations immediately follows the heading of the part, in this case title 38 CFR part 51. Unique authority for a section immediately follows the general authority citation of the part. Without citation to 38 U.S.C. 1720 and 42 U.S.C. 1395cc, § 51.41 does not rely on authority unique to that section. The general authority citation of part 51 includes the authority for § 51.41. No additional authority citation is required.

We are revising the heading of paragraph (a) to name agreements between VA and State homes under this section “State home care agreements.” We are replacing the terms “VA provider agreement(s)”, “provider agreement(s)”, and “agreement(s)” with “State home care agreement(s)” throughout the section. This change ensures agreements under authority of 38 U.S.C. 1745 are not confused with “Veterans Care Agreements” under authority of 38 U.S.C. 1703A. Changing the name § 51.41 uses for agreements under this section does not affect the agreements in any other way.

In addition, we are correcting an error in § 51.41(e) as amended in the interim final rule. Paragraph (e) required State homes to submit forms “in accordance with paragraph (a) of this section.” However, paragraph (a) of § 51.41 does not mention or otherwise pertain to forms. The preamble to the interim final rule reveals paragraph (e) of that section should have referred to 51.43(a). 77 FR 72738, 72742 (Dec. 6, 2012). VA has since amended 38 CFR part 51, 83 FR 61250 (Nov. 28, 2018), and the reference to the procedures for submitting forms are now in § 51.42. We revise § 51.41(e) accordingly.

Additionally, in the interim final rule, we amended § 51.41(e) to state the forms cited in that paragraph are set forth in full in one or another of two sections of 38 CFR part 58. VA removed part 58 from title 38 CFR in August 2013. 78 FR 51673 (Aug. 21, 2013). Copies of VA forms can be obtained from any VA Medical Center and are available on our website at www.va.gov/vaforms. We are revising § 51.41(e) to direct readers to VA forms.

Section 51.41(f)(2), as amended in the interim final rule, states that VA provider agreements will terminate on the date of a final decision that the home is no longer recognized by VA under § 51.30. VA has since amended part 51 to regulate recognition and denial of recognition of State homes in § 51.20, certification and denial of certification in § 51.30, and termination of recognition in § 51.32. Currently, 51.41(f)(2) only refences recognition and refers to recognition as under § 51.30. Because our regulations already require recognition and certification to receive per diem payments, we are revising § 51.42(f) to also refer to certification. For consistency with part 51's recognition, certification, and termination sections, we are revising § 51.41(f)(2) by inserting “or certified” following “recognized”, removing “under § 51.30.”, and in its place inserting “under part 51.”.

In paragraph (g), we are revising the citation, “41 U.S.C. 351 et seq.”, to read, “41 U.S.C. 7601 et seq.”, consistent with a redesignation of section numbers in title 41 United States Code after VA's publication of the interim final rule amending § 51.41.

Based on the rationale set forth in the interim final rule and in this document, VA is adopting the interim final rule as a final rule with the changes described above.

Title 38 of the Code of Federal Regulations, as revised by this final rulemaking, represents VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.

Although this action contains a provision at 38 CFR 51.41(e) constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised collections of information are associated with this final rule. The information collection requirements for § 51.41(e) are currently approved by the Office of Management and Budget (OMB) and have been assigned OMB control numbers 2900-0091 and 2900-0160.

The Regulatory Flexibility Act, 5 U.S.C. 601-612, is not applicable to this rulemaking because notice of proposed rulemaking is not required. 5 U.S.C. 601(2), 603(a), 604(a).

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm/, by following the link for “VA Regulations Published from FY 2004 through FYTD.”

This rule is not an E.O. 13771 regulatory action because it is not significant under E.O. 12866.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.015, Veterans State Nursing Home Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; and 64.022, Veterans Home Based Primary Care.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Pamela Powers, Chief of Staff, Department of Veterans Affairs, approved this document on December 4, 2019, for publication.

For the reasons set out in the preamble, the interim final rule amending 38 CFR part 51, published December 6, 2012, at 77 FR 72738, is adopted as final with the following changes:

I. Background

On September 3, 2019, EPA published a notice of proposed rulemaking (NPRM) for the State of Delaware. 84 FR 45931. In the NPRM, EPA proposed approving Delaware's amendment of its definition of VOC to include eight additional compounds to the list of exempt compounds and to remove the recordkeeping, reporting, and modeling requirements for TBAC. The formal SIP revision was submitted by Delaware on March 25, 2019.

In order to conform with EPA's current regulatory definition of VOC in 40 CFR 51.100(s), Delaware amended Section 2.0 of 7 Admin. Code 1101—Definitions and Administrative Principles to add: trans-1,3,3,3-tetrafluoropropene (HFO-1234ze); HFE-134 (HCF2OCF2H); HFE-236cal2 (HCF2OCF2OCF2H); HFE-338pcc13 (HCF2OCF2CF2OCF2H); H-Galden 1040X or H-Galden ZT 130 or (150 or 180) (HCF2OCF2OCF2CF2OCF2H); trans 1-chloro-3,3,3-trifluoroprop-1-ene; 2,3,3,3-tetrafluoropropene; and 2-amino-2-methyl-1-propanol to a list of compounds excluded from the regulatory definition of VOC. Delaware also amended the definition of VOC in 7 DE Admin. Code 1101 to remove the recordkeeping, emissions reporting, photochemical dispersion modeling, and inventory requirements for TBAC. On March 25, 2019, the State of Delaware, through the Department of Natural Resources and Environmental Control (DNREC), formally submitted these amendments to 7 DE Admin. Code 1101 as a SIP revision.

EPA determined DNREC's submission to be administratively and technically complete in the Agency's May 28, 2019 completeness letter to DNREC. The Agency's completeness letter was inadvertently not added to the docket for this rulemaking action by the time the NPRM went out for publication. The completeness letter can now be found in the docket (Docket ID Number EPA-R03-OAR-2019-0429).

On September 3, 2019, EPA published an NPRM for the State of Delaware's SIP revision. 84 FR 45931. The rationale for EPA's proposed action is explained in the NPRM and will not be restated here.1

EPA received two anonymous comments in response to the NPRM. One comment suggested that EPA should not approve Delaware's SIP revision to exclude the identified chemical compounds from the definition for VOC due to concerns regarding harm to the ozone layer and the air quality of ozone at the surface. The second comment was concerned with the cumulative effect of removing the identified chemicals from regulatory control and the effect of their removal on air quality and public health. A copy of the comments can be found in the docket for this rulemaking action.

EPA Response: Both comments appear to be principally concerned with EPA's prior action of approving the exclusion of these chemical compounds from the definition of VOC, thus removing them from regulatory control. However, this current rulemaking addresses Delaware's request to remove the compounds from Delaware's definition of VOC to conform with EPA's regulatory definition. EPA has already reviewed, proposed, and finalized the rulemaking actions that removed the eight compounds from the federal definition of VOC (See 77 FR 37610, June 22, 2012; 78 FR 9823, February 12, 2013; 78 FR 53029, August 28, 2013; 78 FR 62451, October 22, 2013; 79 FR 17037, March 27, 2014). Since EPA is not proposing to change these final federal actions, these comments are not relevant to this rulemaking action involving Delaware's SIP. EPA already found that exempting these pollutants from the regulatory definition of VOC is consistent with the discretion provided to the Administrator in the CAA to define VOC, as explained in the rulemakings cited above. Accordingly, under CAA section 110(k)(3), EPA “shall approve” this SIP revision seeking to incorporate those same exemptions to the Delaware SIP.

EPA is approving updates to the regulatory definition of VOC in Section 2.0 of 7 DE Admin. Code 1101, submitted on March 25, 2019 by DNREC, as a revision to the Delaware SIP, as the revision meets the requirements of CAA section 110.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the revisions to the definition of VOC in Section 2.0 of 7 DE Admin. Code 1101 discussed in Section II of this preamble. EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.2

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866.

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

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 10, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action updating the regulatory definition of VOC in the Delaware SIP may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

I. Incorporation by Reference A. What is codification?

Codification is the process of including the statutes and regulations that comprise the State's authorized hazardous waste management program into the Code of Federal Regulations (CFR). Section 3006(b) of RCRA, as amended, allows the EPA to authorize State hazardous waste management programs to operate in lieu of the Federal hazardous waste management regulatory program. The EPA codifies its authorization of State programs in 40 CFR part 272 and incorporates by reference State statutes and regulations that the EPA will enforce under sections 3007 and 3008 of RCRA, and any other applicable statutory provisions.

The incorporation by reference of State authorized programs in the CFR should substantially enhance the public's ability to discern the current status of the authorized State program and State requirements that can be federally enforced. This effort provides clear notice to the public of the scope of the authorized program in each State.

The EPA is publishing this rule to codify North Dakota's authorized hazardous waste management program without a prior proposal because we believe this action is not controversial. This rulemaking is in accordance with section 3006(b) of RCRA, the EPA has already evaluated the State's statutory and regulatory requirements and has determined that the State's program meets the statutory and regulatory requirements established by RCRA. The EPA previously provided notices and opportunity for comments on the Agency's decisions to authorize the North Dakota program. The EPA is not reopening the decisions, nor requesting new comments on the North Dakota authorizations, as previously published in the Federal Register documents specific in Section I.C of this final rule document. The previous authorizations form the basis for the codification addressed in this final rule.

North Dakota initially received final authorization on October 5, 1984, effective October 19, 1984 (49 FR 39328), to implement its Base Hazardous Waste Management Program. We granted authorizations for changes to their programs on June 25, 1990 (55 FR 25836), effective August 24, 1990; May 5, 1992 (57 FR 19087), effective July 6, 1992; April 7, 1994 (59 FR 16566), effective June 6, 1994; January 19, 2000 (65 FR 2897), effective March 20, 2000; June 4, 2002 (67 FR 38418), effective April 22, 2002; September 26, 2005 (70 FR 56132), effective November 25, 2005; February 14, 2008 (73 FR 8610), effective April 14, 2008; October 30, 2018 (73 FR 54521), effective October 30, 2018; and December 19, 2018 (83 FR 65101), effective April 30, 2019.

The EPA incorporated by reference North Dakota's then authorized hazardous waste program effective April 14, 2008 (73 FR 8610), and October 30, 2018 (83 FR 54521). In this document, the EPA is revising Subpart JJ of 40 CFR part 272 to include the authorization revision action effective April 30, 2019 (83 FR 65101) described in this preamble.

In this rule, the EPA is finalizing the Federal regulatory text that includes incorporation by reference of the authorized hazardous waste management program of the State of North Dakota. In accordance with the requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the North Dakota statutory and regulatory provisions described in the amendments to 40 CFR 272.1751 set forth below. The EPA has made, and will continue to make, these documents generally available electronically through https://www.regulations.gov and at the EPA Region 8 office (see the ADDRESSES section of this preamble for more information).

This rule codifies the EPA's authorization of North Dakota's base hazardous waste management program and its revisions to that program. The codification reflects the State program that was in effect at the time the EPA authorized the North Dakota hazardous waste management program addressed in the final rule published on December 19, 2018 (83 FR 65101). Due to unforeseen delays resulting from the lapse in appropriations, the EPA's final authorization concerning North Dakota's hazardous waste management program originally proposed December 19, 2018, with an effective date of March 15, 2019 (83 FR 65104, December 19, 2018), was delayed. Thus, the EPA granted authorization for the North Dakota program effective April 30, 2019 (84 FR 8260, March 7, 2019). The EPA is not requesting comments on its decisions published in the Federal Register actions concerning revisions to the authorized program in North Dakota. By codifying the authorized North Dakota program and by amending the CFR, the public will more easily be able to discern the status of the federally -approved requirements of the North Dakota program.

The EPA is incorporating by reference the EPA's approval of North Dakota's hazardous waste management program by amending Subpart JJ to 40 CFR part 272. The rule amends section 272.1751 and incorporates by reference North Dakota's authorized hazardous waste statutes and regulations. Section 272.1751 also references the demonstration of adequate enforcement authority, including procedural and enforcement provisions, which provide the legal basis for the State's implementation of the hazardous waste management program. In addition, section 272.1751 references the Memorandum of Agreement, the Attorney General's Statement, and the Program Description, which are evaluated as part of the approval process of the hazardous waste management program in accordance with Subtitle C of RCRA.

The EPA retains the authority under statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013, and 7003, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions and to issue orders in all authorized states. With respect to enforcement actions, the EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than the State analogs to these provisions. Therefore, the EPA is not incorporating by reference North Dakota's inspection and enforcement authorities, nor are those authorities part of North Dakota's approved State program which operates in lieu of the Federal program. 40 CFR 272.1751(c)(2) lists the statutory and regulatory provisions which provide the legal basis for the State's implementation of the hazardous waste management program, as well as those procedural and enforcement authorities that are part of the State's approved program, but these are not incorporated by reference.

The public is reminded that some provisions of North Dakota's hazardous waste management program are not part of the federally authorized State program. These non-authorized provisions include:

(1) Provisions that are not part of the RCRA subtitle C program because they are “broader in scope” than RCRA subtitle C (see 40 CFR 271.1(i));

(2) Federal rules for which North Dakota is not authorized, but which have been incorporated into the State regulations because of the way the State adopted Federal regulations by reference;

(3) State procedural and enforcement authorities that are necessary to establish the ability of the State's program to enforce compliance, but which do not supplant the Federal statutory enforcement and procedural authorities.

State provisions that are “broader in scope” than the Federal program are not incorporated by reference in 40 CFR part 272. For reference and clarity, the EPA lists in 40 CFR 272.1751(c)(3) the North Dakota statutory provisions that are “broader in scope” than the Federal program, and which are not part of the authorized program being incorporated by reference. While “broader in scope” provisions are not part of the authorized program and cannot be enforced by the EPA, the State may enforce such provisions under State law.

North Dakota has adopted, but is not authorized for, the Federal rules published in the Federal Register on April 12, 1996 (61 FR 16290); October 22, 1998 (63 FR 56710), and January 8, 2010 (75 FR 1235). Therefore, these Federal amendments included in North Dakota's adoption by reference at section 33.1-24-06-16.5 of the North Dakota Administrative Code are not part of the State's authorized program and are not part of the incorporation by reference addressed by this Federal Register document.

With respect to any requirement(s) pursuant to HSWA for which the State has not yet been authorized, and which the EPA has identified as taking effect immediately in states with authorized hazardous waste management programs, the EPA will enforce those Federal HSWA standards until the State is authorized for those provisions.

The codification does not affect Federal HSWA requirements for which the State is not authorized. The EPA has authority to implement HSWA requirements in all states, including states with authorized hazardous waste management programs, until the states become authorized for such requirements or prohibitions, unless the EPA has identified the HSWA requirement(s) as an optional or as a less stringent requirement of the Federal program. A HSWA requirement or prohibition, unless identified by the EPA as optional or as less stringent, supersedes any less stringent or inconsistent State provision which may have been previously authorized by the EPA (50 FR 28702, July 15, 1985).

Some existing State requirements may be similar to the HSWA requirements implemented by the EPA. However, until the EPA authorizes those State requirements, the EPA enforces the HSWA requirements and not the State analogs.

The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). This action authorizes State requirements for the purpose of RCRA section 3006 and imposes no additional requirements beyond those imposed by State law. Therefore, this action is not subject to review by OMB. This action is not an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory action because actions such as today's final authorization of North Dakota's revised hazardous waste program under RCRA are exempted under Executive Order 12866. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538). For the same reason, this action also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA.

This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

Under RCRA 3006(b), the EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this action, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the action in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). “Burden” is defined at 5 CFR 1320.3(b).

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision 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 and low-income populations in the United States. Because this rule authorizes pre-existing State rules which are at least equivalent to, and no less stringent than existing Federal requirements, and imposes no additional requirements beyond those imposed by State law, and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898.

The Congressional Review Act, 5 U.S.C. 801-808, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

For the reasons set forth in the preamble, under the authority at 42 U.S.C. 6912(a), 6926, and 6974(b), the EPA is amending 40 CFR part 272 as follows: