Background

On May 14, 2009, Embraer S.A. applied for a type certificate for their new Model EMB-550 airplane. The Model EMB-550 airplane is the first of a new family of jet airplanes designed for corporate flight, fractional, charter, and private owner operations. The aircraft has a conventional configuration with low wing and T-tail empennage. The primary structure is metal with composite empennage and control surfaces. The Model EMB-550 airplane is designed for 8 passengers, with a maximum of 12 passengers. It is equipped with two Honeywell HTF7500-E medium bypass ratio turbofan engines mounted on aft fuselage pylons. Each engine produces approximately 6,540 pounds of thrust for normal takeoff. The primary flight controls consist of hydraulically powered fly-by-wire elevators, aileron and rudder, controlled by the pilot or copilot sidestick.

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, Embraer S.A. must show that the Model EMB-550 airplane meets the applicable provisions of part 25, as amended by Amendments 25-1 through 25-127.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model EMB-550 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 type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Model EMB-550 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 and the FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92-574, the “Noise Control Act of 1972.”

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

The Model EMB-550 airplane will incorporate the following novel or unusual design features: The Embraer S.A. Model EMB-550 airplane will have a fly-by-wire electronic flight control system and no direct coupling from the flightdeck controller to the control surface. As a result, the pilot is not aware of the actual control surface position as envisioned when part 25 was written.

These special conditions propose that the flightcrew receive a suitable flight control position annunciation when a flight condition exists in which nearly full surface authority (not crew-commanded) is being used. Suitability of such a display must take into account that some pilot-demanded maneuvers (e.g., rapid roll) are necessarily associated with intended full performance, which may saturate the surface. Therefore, simple alerting systems function in both intended and unexpected control-limiting situations. As a result, they must be properly balanced between providing necessary crew awareness and being a potential nuisance to the flightcrew. A monitoring system that compares airplane motion and surface deflection with the demand of the pilot sidestick controller could help reduce nuisance alerting.

These special conditions also address flight control system mode annunciation. It proposes suitable mode annunciation be provided to the flightcrew for events that significantly change the operating mode of the system but do not merit the classic “failure warning.”

These special conditions establish a level of safety equivalent to that provided by a conventional flight control system and that contemplated in existing regulations.

Notice of proposed special conditions No. SC-12-25 for the Embraer S.A. EMB-550 airplanes was published in the Federal Register on September 27, 2012 (77 FR 57039). No comments were received, and the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Model EMB-550 airplane. Should Embraer S.A. apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability.

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 Model EMB-550 airplanes.

Background

On May 14, 2009, Embraer S.A. applied for a type certificate for their new Model EMB-550 airplane. The Model EMB-550 airplane is the first of a new family of jet airplanes designed for corporate flight, fractional, charter, and private owner operations. The aircraft has a conventional configuration with low wing and T-tail empennage. The primary structure is metal with composite empennage and control surfaces. The Model EMB-550 airplane is designed for 8 passengers, with a maximum of 12 passengers. It is equipped with two Honeywell HTF7500-E medium bypass ratio turbofan engines mounted on aft fuselage pylons. Each engine produces approximately 6,540 pounds of thrust for normal takeoff. The primary flight controls consist of hydraulically powered fly-by-wire elevators, ailerons, and rudder, controlled by the pilot or copilot sidestick.

Current regulations reference pilot effort loads for the cockpit pitch and roll controls that are based on a two-handed effort. The cockpit roll and pitch controls for the Model EMB-550 airplane are designed for one-handed operation.

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, Embraer S.A. must show that the Model EMB-550 airplane meets the applicable provisions of part 25, as amended by Amendments 25-1 through 25-127 thereto.

If the Administrator finds that the applicable airworthiness regulations 14 CFR part 25 do not contain adequate or appropriate safety standards for the Model EMB-550 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 type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Model EMB-550 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 and the FAA must issue a finding of regulatory adequacy under section 611 of Public Law 92-574, the “Noise Control Act of 1972.”

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

The Embraer S.A. Model EMB-550 airplane will incorporate the following novel or unusual design features: The Model EMB-550 airplane is equipped with a sidestick controller instead of a conventional wheel or control stick. This kind of controller is designed to be operated using only one hand. The requirement of 14 CFR 25.397(c), which defines limit pilot forces and torques for conventional wheel or stick controls, is not appropriate for a sidestick controller. Therefore, a special condition is necessary to specify the appropriate loading conditions for this kind of controller.

The Embraer S.A. Model EMB-550 airplane is equipped with a sidestick controller instead of a conventional wheel or control stick. This kind of controller is designed to be operated using only one hand. The requirement of 14 CFR 25.397(c), which defines limit pilot forces and torques for conventional wheel or stick controls, is not appropriate for a sidestick controller, because pilot forces are applied to sidestick controllers with only the wrist, not arms. 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.

Notice of proposed special conditions No. 25-12-13-SC for the Embraer S.A. Model EMB-550 airplanes was published in the Federal Register on November 20, 2012, (77 FR 69571). No comments were received, and the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Model EMB-550 airplane. Should Embraer S.A. apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability.

On May 14, 2009, Embraer S.A. applied for a type certificate for their new Model EMB-550 airplane. The Model EMB-550 airplane is the first of a new family of jet airplanes designed for corporate flight, fractional, charter, and private owner operations. The aircraft has a conventional configuration with low wing and T-tail empennage. The primary structure is metal with composite empennage and control surfaces. The Model EMB-550 airplane is designed for 8 passengers, with a maximum of 12 passengers. It is equipped with two Honeywell HTF7500-E medium bypass ratio turbofan engines mounted on aft fuselage pylons. Each engine produces approximately 6,540 pounds of thrust for normal takeoff. The primary flight controls consist of hydraulically powered fly-by-wire elevators, ailerons, and rudder, controlled by the pilot or copilot sidestick.

The flight control system for the Model EMB-550 airplane does not have a direct mechanical link or a linear gain between the airplane flight control surface and the pilot's cockpit control device, which is not accounted for in Title 14, Code of Federal Regulations (14 CFR) 25.349(a). Instead, a flight control computer commands the airplane flight control surfaces, based on input received from the cockpit control device. The pilot input is modified by the flight control computer before the command is given to the flight control surface.

Under the provisions of 14 CFR 21.17, Embraer S.A. must show that the Model EMB-550 airplane meets the applicable provisions of part 25, as amended by Amendments 25-1 through 25-127 thereto.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model EMB-500 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 type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Model EMB-550 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 and the FAA must issue a finding of regulatory adequacy under section 611 of Public Law 92-574, the “Noise Control Act of 1972.”

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

The Embraer S.A. Model EMB-550 airplane will incorporate the following novel or unusual design features: The Model EMB-550 airplane is equipped with an electronic flight control system that provides control of the aircraft through pilot inputs to the flight computer. Current part 25 airworthiness regulations account for “control laws” where aileron deflection is proportional to control stick deflection. They do not address any nonlinearities, i.e., situations where output does not change in the same proportion as input, or other effects on aileron actuation that may be caused by electronic flight controls.

These special conditions differ from current regulatory requirements in that they require that the roll maneuver result from defined movements of the cockpit roll control as opposed to defined aileron deflections. Also, these special conditions require an additional load condition at design maneuvering speed (V A ), in which the cockpit roll control is returned to neutral following the initial roll input.

These special conditions differ from similar special conditions previously issued on this topic. These special conditions are limited to the roll axis only, whereas other special conditions also included pitch and yaw axes. Special conditions are no longer needed for the yaw axis because 14 CFR 25.351 was revised at Amendment 25-91 to take into account effects of an electronic flight control system. No special conditions are needed for the pitch axis because the method that Embraer S.A. proposed for the pitch maneuver takes into account effects of an electronic flight control 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.

Notice of proposed special conditions No. 25-12-15-SC for the Embraer S.A. EMB-550 airplanes was published in the Federal Register on November 26, 2012 (77 FR 70384). No comments were received, and the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Model EMB-550 airplane. Should Embraer S.A. apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model EMB-550 of airplanes. It is not a rule of general applicability.

Background

On May 14, 2009, Embraer S.A. applied for a type certificate for their new Model EMB-550 airplane. The Model EMB-550 airplane is the first of a new family of jet airplanes designed for corporate flight, fractional, charter, and private owner operations. The aircraft has a conventional configuration with low wing and T-tail empennage. The primary structure is metal with composite empennage and control surfaces. The Model EMB-550 airplane is designed for 8 passengers, with a maximum of 12 passengers. It is equipped with two Honeywell HTF7500-E medium bypass ratio turbofan engines mounted on aft fuselage pylons. Each engine produces approximately 6,540 pounds of thrust for normal takeoff. The primary flight controls consist of hydraulically powered fly-by-wire elevators, aileron and rudder, controlled by the pilot or copilot sidestick.

The Model Embraer EMB-550 airplane is equipped with systems that, directly or as a result of failure or malfunction, affect its structural performance. Current regulations do not take into account loads for the airplane due to the effects of systems on structural performance including normal operation and failure conditions with strength levels related to probability of occurrence. Special conditions are needed to account for these features.

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, Embraer S.A. must show that the Model EMB-550 airplane meets the applicable provisions of part 25, as amended by Amendments 25-1 through 25-127 thereto.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model EMB-550 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 type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Embraer S.A. Model EMB-550 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 and the FAA must issue a finding of regulatory adequacy under section 611 of Public Law 92-574, the “Noise Control Act of 1972.”

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

The Embraer S.A. Model EMB-550 airplane is equipped with systems that, directly or as a result of failure or malfunction, affect its structural performance. Current regulations do not take into account loads for the airplane due to the effects of systems on structural performance including normal operation and failure conditions with strength levels related to probability of occurrence. Special conditions are needed to account for these features.

These special conditions define criteria to be used in the assessment of the effects of these systems on structures. The general approach of accounting for the effect of system failures on structural performance would be extended to include any system in which partial or complete failure, alone or in combination with other system partial or complete failures, would affect structural performance.

These airplanes are equipped with systems that, directly or as a result of failure or malfunction, affect its structural performance. Current regulations do not take into account loads for the aircraft due to the effects of systems on structural performance including normal operation and failure conditions with strength levels related to probability of occurrence. These special conditions define criteria to be used in the assessment of the effects of these systems on structures.

Special conditions have been applied on past airplane programs to require consideration of the effects of systems on structures. The regulatory authorities and industry developed standardized criteria in the Aviation Rulemaking Advisory Committee (ARAC) forum based on the criteria defined in Advisory Circular 25.672, Active Flight Controls, dated November 11, 1983. The ARAC recommendations have been incorporated in European Aviation Safety Agency (EASA) Certification Specifications (CS) 25.302 and CS 25 Appendix K. FAA rulemaking on this subject is not complete, thus the need for the special conditions.

The proposed special conditions are similar to those previously applied to other airplane models and to CS 25.302. The major differences between these proposed special conditions and the current CS 25.302 are as follows:

1. Both these special conditions and CS 25.302 specify the design load conditions to be considered. In paragraphs 2(a)(1) and 2(b)(2)(i) of these special conditions, the special conditions clarify that, in some cases, different load conditions are to be considered due to other special conditions or equivalent level of safety findings.

2. Paragraph 2(b)(2)(i) of these special conditions include the additional ground-handling conditions of §§ 25.493(d) and 25.503. These conditions are added in case the Embraer S.A. Model EMB-550 airplane has systems that affect braking and pivoting.

3. Both CS 25.302 and paragraph (2)(d) of these special conditions allow consideration of the probability of being in a dispatched configuration when assessing subsequent failures and potential “continuation of flight” loads. However, these special conditions also allow using probability when assessing failures that induce loads at the “time of occurrence,” whereas CS 25.302 does not.

Notice of proposed special conditions No. 25-12-16-SC for the Embraer S.A. Model EMB-550 airplanes was published in the Federal Register on November 28, 2012, (77 FR 70941). No comments were received, and the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Embraer S.A. Model EMB-550 airplane. Should Embraer S.A. apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability.

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 Embraer S.A. Model EMB-550 airplanes to address the effects of systems on structures.

1. General interaction of systems and structures.

For airplanes equipped with systems that affect structural performance, either directly or as a result of a failure or malfunction, the influence of these systems and their failure conditions must be taken into account when showing compliance with the requirements of Title 14, Code of Federal Regulations (14 CFR) part 25 subparts C and D.

The following criteria must be used for showing compliance with these special conditions for airplanes equipped with flight control systems, autopilots, stability augmentation systems, load alleviation systems, fuel management systems, and other systems that either directly or as a result of failure or malfunction affect structural performance. If these special conditions are used for other systems, it may be necessary to adapt the criteria to the specific system.

(a) The criteria defined herein only address the direct structural consequences of the system responses and performances and cannot be considered in isolation but should be included in the overall safety evaluation of the airplane. These criteria may in some instances duplicate standards already established for this evaluation. These criteria are only applicable to structure in which failure could prevent continued safe flight and landing. Specific criteria that define acceptable limits on handling characteristics or stability requirements when operating in the system degraded or inoperative mode are not provided in these special conditions.

(b) The following definitions are applicable to these special conditions.

(1) Structural performance: Capability of the airplane to meet the structural requirements of 14 CFR part 25.

(2) Flight limitations: Limitations that can be applied to the airplane flight conditions following an in-flight occurrence and that are included in the flight manual (e.g., speed limitations and avoidance of severe weather conditions).

(3) Operational limitations: Limitations, including flight limitations, that can be applied to the airplane operating conditions before dispatch (e.g., fuel, payload, and Master Minimum Equipment List limitations).

(4) Probabilistic terms: The probabilistic terms (i.e., probable, improbable, and extremely improbable) used in these special conditions are the same as those used in § 25.1309.

(5) Failure condition: The term “failure condition” is the same as that used in § 25.1309. However, these special conditions apply only to system failure conditions that affect the structural performance of the airplane (e.g., system failure conditions that induce loads, change the response of the airplane to inputs such as gusts or pilot actions, or lower flutter margins).

2. Effect on Systems and Structures. The following criteria are used in determining the influence of a system and its failure conditions on the airplane structure.

(a) System fully operative. With the system fully operative, the following apply:

(1) Limit loads must be derived in all normal operating configurations of the system from all the limit conditions specified in Subpart C (or defined by special condition or equivalent level of safety in lieu of those specified in Subpart C), taking into account any special behavior of such a system or associated functions or any effect on the structural performance of the airplane that may occur up to the limit loads. In particular, any significant nonlinearity (rate of displacement of control surface, thresholds or any other system nonlinearities) must be accounted for in a realistic or conservative way when deriving limit loads from limit conditions.

(2) The airplane must meet the strength requirements of part 25 (static strength, residual strength), using the specified factors to derive ultimate loads from the limit loads defined above. The effect of nonlinearities must be investigated beyond limit conditions to ensure the behavior of the system presents no anomaly compared to the behavior below limit conditions. However, conditions beyond limit conditions need not be considered when it can be shown that the airplane has design features that will not allow it to exceed those limit conditions.

(3) The airplane must meet the aeroelastic stability requirements of § 25.629.

(b) System in the failure condition. For any system failure condition not shown to be extremely improbable, the following apply:

(1) At the time of occurrence. Starting from 1- g level flight conditions, a realistic scenario, including pilot corrective actions, must be established to determine the loads occurring at the time of failure and immediately after failure.

(i) For static strength substantiation, these loads, multiplied by an appropriate factor of safety that is related to the probability of occurrence of the failure, are ultimate loads to be considered for design. The factor of safety (FS) is defined in Figure 1.

(ii) For residual strength substantiation, the airplane must be able to withstand two-thirds of the ultimate loads defined in paragraph 2(b)(1)(i) of these special conditions. For pressurized cabins, these loads must be combined with the normal operating differential pressure.

(iii) Freedom from aeroelastic instability must be shown up to the speeds defined in § 25.629(b)(2). For failure conditions that result in speeds beyond V C /M C , freedom from aeroelastic instability must be shown to increased speeds, so that the margins intended by § 25.629(b)(2) are maintained.

(iv) Failures of the system that result in forced structural vibrations (e.g., oscillatory failures) must not produce loads that could result in detrimental deformation of primary structure.

(2) For the continuation of the flight. For the airplane, in the system failed state and considering any appropriate reconfiguration and flight limitations, the following apply:

(i) The loads derived from the following conditions (or conditions defined by special conditions or equivalent level of safety in lieu of the following special conditions) at speeds up to V C /M C , or the speed limitation prescribed for the remainder of the flight, must be determined:

(A) The limit symmetrical maneuvering conditions specified in §§ 25.331 and 25.345.

(B) The limit gust and turbulence conditions specified in §§ 25.341 and 25.345.

(C) The limit rolling conditions specified in § 25.349 and the limit unsymmetrical conditions specified in §§ 25.367, 25.427(b), and 25.427(c).

(D) The limit yaw maneuvering conditions specified in § 25.351.

(E) The limit ground loading conditions specified in §§ 25.473, 25.491, 25.493(d) and 25.503.

(ii) For static strength substantiation, each part of the structure must be able to withstand the loads in paragraph 2(b)(2)(i) of these special conditions multiplied by a factor of safety depending on the probability of being in this failure state. The factor of safety (FS) is defined in Figure 2.

(iii) For residual strength substantiation, the airplane must be able to withstand two-thirds of the ultimate loads defined in paragraph 2(b)(2)(ii) of the special conditions. For pressurized cabins, these loads must be combined with the normal operating differential pressure.

(iv) If the loads induced by the failure condition have a significant effect on fatigue or damage tolerance then their effects must be taken into account.

(v) Freedom from aeroelastic instability must be shown up to a speed determined from Figure 3. Flutter clearance speeds V′ and V″ may be based on the speed limitation specified for the remainder of the flight using the margins defined by § 25.629(b).

(vi) Freedom from aeroelastic instability must also be shown up to V′ in Figure 3 above, for any probable system failure condition combined with any damage required or selected for investigation by § 25.571(b).

(3) Consideration of certain failure conditions may be required by other sections of 14 CFR part 25 regardless of calculated system reliability. Where analysis shows the probability of these failure conditions to be less than 10 −9 , criteria other than those specified in this paragraph may be used for structural substantiation to show continued safe flight and landing.

(c) Failure indications. For system failure detection and indication, the following apply:

(1) The system must be checked for failure conditions, not extremely improbable, that degrade the structural capability below the level required by 14 CFR part 25 or significantly reduce the reliability of the remaining system. As far as reasonably practicable, the flightcrew must be made aware of these failures before flight. Certain elements of the control system, such as mechanical and hydraulic components, may use special periodic inspections, and electronic components may use daily checks, in lieu of detection and indication systems to achieve the objective of this requirement. These certification maintenance requirements must be limited to components that are not readily detectable by normal detection and indication systems and where service history shows that inspections will provide an adequate level of safety.

(2) The existence of any failure condition, not extremely improbable, during flight that could significantly affect the structural capability of the airplane and for which the associated reduction in airworthiness can be minimized by suitable flight limitations, must be signaled to the flightcrew. For example, failure conditions that result in a factor of safety between the airplane strength and the loads of Subpart C below 1.25, or flutter margins below V″, must be signaled to the flightcrew during flight.

(d) Dispatch with known failure conditions. If the airplane is to be dispatched in a known system failure condition that affects structural performance, or affects the reliability of the remaining system to maintain structural performance, then the provisions of these special conditions must be met, including the provisions of paragraph 2(a) for the dispatched condition, and paragraph 2(b) for subsequent failures. Expected operational limitations may be taken into account in establishing P j as the probability of failure occurrence for determining the safety margin in Figure 1 of these special conditions. Flight limitations and expected operational limitations may be taken into account in establishing Q j as the combined probability of being in the dispatched failure condition and the subsequent failure condition for the safety margins in Figures 2 and 3 of these special conditions. These limitations must be such that the probability of being in this combined failure state and then subsequently encountering limit load conditions is extremely improbable. No reduction in these safety margins is allowed if the subsequent system failure rate is greater than 10 −3 per hour.

Background

On May 14, 2009, Embraer S.A. applied for a type certificate for their new Model EMB-550 airplane. The Model EMB-550 airplane is the first of a new family of jet airplanes designed for corporate flight, fractional, charter, and private owner operations. The aircraft has a conventional configuration with low wing and T-tail empennage. The primary structure is metal with composite empennage and control surfaces. The Model EMB-550 airplane is designed for 8 passengers, with a maximum of 12 passengers. It is equipped with two Honeywell HTF7500-E medium bypass ratio turbofan engines mounted on aft fuselage pylons. Each engine produces approximately 6,540 pounds of thrust for normal takeoff. The primary flight controls consist of hydraulically powered fly-by-wire elevators, aileron and rudder, controlled by the pilot or copilot sidestick.

The Embraer S.A. Model EMB-550 airplane has a flight control design feature within the normal operational envelope in which sidestick deflection in the roll axis commands roll rate. As a result, the stick force in the roll axis will be zero (neutral stability) during the straight, steady sideslip flight maneuver required by Title 14, Code of Federal Regulations (14 CFR) 25.177(c) and will not be “substantially proportional to the angle of sideslip” as required by the rule.

The longitudinal flight control laws for the Model EMB-550 airplane provide neutral static stability within the normal operational envelope; therefore, the airplane design does not comply with the static longitudinal stability requirements of §§ 25.171, 25.173, and 25.175.

Static longitudinal stability provides awareness to the flightcrew of a low energy state (i.e., low speed and thrust at low altitude). Recovery from a low energy state may become hazardous when associated with a low altitude and performance-limiting conditions. These low energy situations must therefore be avoided, and pilots must be given adequate cues when approaching such situations.

Under the provisions of 14 CFR 21.17, Embraer S.A. must show that the Model EMB-550 airplane meets the applicable provisions of part 25, as amended by Amendments 25-1 through 25-127 thereto.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model EMB-550 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 type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Model EMB-550 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 and the FAA must issue a finding of regulatory adequacy under section 611 of Public Law 92-574, the “Noise Control Act of 1972.”

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

The Model EMB-550 airplane will incorporate the following novel or unusual design features:

(1) Lateral-Directional Static Stability: The electronic flight control system on the Model EMB-550 airplane contains fly-by-wire control laws that can result in neutral lateral-directional static stability; therefore, the conventional requirements in §§ 25.171, 25.173, 25.175, and 25.177 are not met.

Positive static directional stability is the tendency to recover from a skid with the rudder free. Positive static lateral stability is the tendency to raise the low wing in a sideslip with the aileron controls free. These control criteria are intended to accomplish all of the following:

• Provide additional cues of inadvertent sideslips and skids through control force changes,

• Ensure that short periods of unattended operation do not result in any significant changes in yaw or bank angle,

• Provide predictable roll and yaw response, and

• Provide an acceptable level of pilot attention and workload to attain and maintain a coordinated turn.

The Flight Test Harmonization Working Group recommended a rule and advisory material change for § 25.177, Static lateral-directional stability, which was adopted at Amendment 25-135 (76 FR 74654, December 1, 2011), effective January 30, 2012. (This amendment is not in the Model EMB-550 certification basis.) That harmonized text formed the basis for these special conditions.

(2) Longitudinal Static Stability: Static longitudinal stability on airplanes with mechanical links to the pitch control surface means that a pull force on the controller will result in a reduction in speed relative to the trim speed, and a push force will result in higher than trim speed. Longitudinal stability is required by the regulations for the following reasons:

• Speed change cues are provided to the pilot through increased and decreased forces on the controller.

• Short periods of unattended control of the airplane do not result in significant changes in attitude, airspeed or load factor.

• A predictable pitch response is provided to the pilot.

• An acceptable level of pilot attention (workload) to attain and maintain trim speed and altitude is provided to the pilot.

• Longitudinal stability provides gust stability.

The pitch control movement of the sidestick on the Model EMB-550 airplane is designed to be a normal load factor or g command that results in an initial movement of the elevator surface to attain the commanded load factor that's then followed by integrated movement of the stabilizer and elevator to automatically trim the airplane to a neutral, 1 g, stick-free stability. The flight path commanded by the initial sidestick input will remain, stick-free, until the pilot gives another command. This control function is applied during “normal” control law within the speed range from initiation of the angle of attack protection limit, to V MO /M MO . Once outside this speed range, the control laws introduce the conventional longitudinal static stability as described above.

As a result of neutral static stability, the Model EMB-550 airplane does not meet the 14 CFR part 25 requirements for static longitudinal stability.

(3) Low Energy Awareness: Past experience on airplanes fitted with a flight control system providing neutral longitudinal stability shows there is insufficient feedback cues to the pilot of excursion below normal operational speeds. The maximum angle of attack protection system limits the airplane angle of attack and prevents stall during normal operating speeds, but this system is not sufficient to prevent stall at low speed excursions below normal operational speeds. Until intervention, there are no stability cues since the airplane remains trimmed. Additionally, feedback from the pitching moment due to thrust variation is reduced by the flight control laws. Recovery from a low speed excursion may become hazardous when the low speed situation is associated with a low altitude and with the engines at low thrust or with performance-limiting conditions.

In the absence of positive lateral stability, the curve of lateral control surface deflections against sideslip angle should be in a conventional sense, and reasonably in harmony with rudder deflection during steady heading sideslip maneuvers.

Since conventional relationships between stick forces and control surface displacements do not apply to the “load factor command” flight control system on the Model EMB-550 airplane, longitudinal stability characteristics should be evaluated by assessing the airplane handling qualities during simulator and flight test maneuvers appropriate to operation of the airplane. This may be accomplished by using the Handling Qualities Rating Method presented in Appendix 7 of Advisory Circular (AC) 25-7B, Flight Test Guide, dated March 29, 2011, or an acceptable alternative method proposed by Embraer S.A. Important considerations are as follows:

• Adequate speed control without creating excessive pilot workload,

• Acceptable high and low speed protection, and

• Providing adequate cues to the pilot of significant speed excursions beyond V MO /M MO , and low speed awareness flight conditions.

The airplane should provide adequate awareness cues to the pilot of a low energy (i.e., a low speed, low thrust, or low height) state to ensure that the airplane retains sufficient energy to recover when flight control laws provide neutral longitudinal stability significantly below the normal operating speeds. This may be accomplished as follows:

• Adequate low speed/low thrust cues at low altitude may be provided by a strong positive static stability force gradient (1 pound per 6 knots applied through the sidestick), or

• The low energy awareness may be provided by an appropriate warning with the following characteristics:

○ It should be unique, unambiguous, and unmistakable.

○ It should be active at appropriate altitudes and in appropriate configurations (e.g., at low altitude, in the approach and landing configurations).

○ It should be sufficiently timely to allow recovery to a stabilized flight condition inside the normal flight envelope while maintaining the desired flight path and without entering the flight controls angle-of-attack protection mode.

○ It should not be triggered during normal operation, including operation in moderate turbulence for recommended maneuvers at recommended speeds.

○ The pilot should only be able to cancel it by achieving a higher energy state.

○ An adequate hierarchy should exist among the warnings so that the pilot is not confused and led to take inappropriate recovery action if multiple warnings occur.

Simulators and flight test should evaluate global energy awareness and ensure that low energy cues are not a nuisance in all take-off and landing altitude ranges for which certification is requested. These evaluations should include all relevant combinations of weight, center of gravity position, configuration, airbrakes position, and available thrust, including reduced and derated take-off thrust operations and engine failure cases. A sufficient number of tests should be conducted to assess the level of energy awareness and the effects of energy management errors. 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.

Notice of proposed special conditions No. 25-12-11-SC for the Embraer S.A. Model EMB-550 airplanes was published in the Federal Register on November 20, 2012 (77 FR 69573). No comments were received, and the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Model EMB-550 airplane. Should Embraer S.A. apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability.

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 Model EMB-550 airplanes.

Background

On May 14, 2009, Embraer S.A. applied for a type certificate for their new Model EMB-550 airplane. The Model EMB-550 airplane is the first of a new family of jet airplanes designed for corporate flight, fractional, charter, and private owner operations. The aircraft has a conventional configuration with a low wing and T-tail empennage. The primary structure is metal with composite empennage and control surfaces. The Model EMB-550 airplane is designed for 8 passengers, with a maximum of 12 passengers. It is equipped with two Honeywell HTF7500-E medium bypass ratio turbofan engines mounted on aft fuselage pylons. Each engine produces approximately 6,540 pounds of thrust for normal takeoff. The primary flight controls consist of hydraulically powered fly-by-wire elevators, aileron and rudder, controlled by the pilot or copilot sidestick.

The longitudinal control law design of the Embraer S.A. Model EMB-550 airplane incorporates an overspeed protection system in the normal mode. This mode prevents the pilot from inadvertently or intentionally exceeding a speed approximately equivalent to V FC or attaining V DF . Current Title 14, Code of Federal Regulations (14 CFR) part 25 did not envision a high speed limiter that might preclude or modify flying qualities assessments in the overspeed region.

Under the provisions of 14 CFR 21.17, Embraer S.A. must show that the Model EMB-550 airplane meets the applicable provisions of part 25, as amended by Amendments 25-1 through 25-127 thereto.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model EMB-550 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 type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Model EMB-550 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 and the FAA must issue a finding of regulatory adequacy under section 611 of Public Law 92-574, the “Noise Control Act of 1972.”

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

The Model EMB-550 airplane will incorporate the following novel or unusual design feature: an electronic flight control system which contains fly-by-wire control laws, including envelope protections, for the overspeed protection and roll limiting function. Current part 25 requirements do not contain appropriate standards for high speed protection systems.

As further discussed previously, a special condition is necessary in addition to the requirements of § 25.143 for the operation of the high speed protection. The general intent is that the overspeed protection does not impede normal maneuvering and speed control and that the overspeed protection does not restrict or prevent emergency maneuvering. Therefore, 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.

Notice of proposed special conditions No. 25-12-12-SC for the Embraer S.A. Model EMB-550 airplanes was published in the Federal Register on November 20, 2012 (77 FR 69572). No comments were received, and the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Model EMB-550 airplane. Should Embraer S.A. apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on October 25, 2012 (77 FR 65142). That NPRM proposed to correct an unsafe condition for the specified products. The Mandatory Continuing Airworthiness Information states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (77 FR 65142, October 25, 2012).

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed (77 FR 65142, October 25, 2012).

Based on the service information, we estimate that this AD will affect about 220 engines of U.S. registry. We also estimate that it will take about six hours per engine to comply with this AD. The average labor rate is $85 per work-hour. We anticipate that two engines will fail the initial inspection. Required parts will cost about $224,636 per engine. Based on these figures, we estimate the cost of the AD on U.S. operators to be $561,472. Our cost estimate is exclusive of possible warranty coverage.

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

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

We 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 this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on November 7, 2012 (77 FR 66767). That NPRM proposed to correct an unsafe condition for the specified products. The Mandatory Continuing Airworthiness Information states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (77 FR 66767, November 7, 2012).

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed (77 FR 66767, November 7, 2012).

We estimate that this AD will affect about 83 engines installed on helicopters of U.S. registry. We also estimate that it will take about 4 hours per engine to comply with this AD. The average labor rate is $85 per hour. Prorated parts life will cost about $8,900. Based on these figures, we estimate the cost of this AD on U.S. operators to be $766,920.

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

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

We 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 this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on September 20, 2012 (77 FR 58323). That NPRM proposed to correct an unsafe condition for the specified products. The Mandatory Continuing Airworthiness Information (MCAI) states:

The unsafe condition is the use of published non-conservative data, which could result in the inability to meet the required take-off performance, with consequent hazard to safe operation during performance-limited take-off operations. You may obtain further information by examining the MCAI in the AD docket.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (77 FR 58323, September 20, 2012) or on the determination of the cost to the public.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (77 FR 58323, September 20, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 58323, September 20, 2012).

We estimate that this AD will affect 56 products of U.S. registry. We also estimate that it will take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $4,760, or $85 per product.

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

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

We 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;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

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

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

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM (77 FR 58323, September 20, 2012), the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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

We issued a supplemental notice of proposed rulemaking (SNPRM) on May 18, 2012, to amend 14 CFR part 39 to include an airworthiness directive that would apply to the specified products. That SNPRM published in the Federal Register on June 1, 2012 (77 FR 32433). The original NPRM (75 FR 31327, June 3, 2010) proposed to require a detailed inspection of the inboard and outboard main slat track downstop assemblies and a torque application to the main track downstop assembly nuts of slat numbers 1 through 10, excluding the outboard track of slats 1 and 10; a detailed inspection of all slat track housings for FOD and visible damage; and corrective actions if necessary. The SNPRM proposed to require inspection results reporting.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (77 FR 32433, June 1, 2012) and the FAA's response to each comment.

American Airlines (AAL) stated that it has reviewed the SNPRM (77 FR 32433, June 1, 2012) and agrees with the intent.

UPS stated that it concurs with the technical reasons for the inspections and has been accomplishing those inspections since February 2011.

AAL and Boeing requested that we revise the “Costs of Compliance” section of the SNPRM (77 FR 32433, June 1, 2012) to account for more hours necessary to accomplish the inspections.

AAL stated that it has completed a representative sample of affected airplanes, and, contrary to the 20 estimated work-hours to accomplish the inspection as specified in the SNPRM (77 FR 32433, June 1, 2012), it has been taking between 100 and 300 work-hours.

Boeing stated that it has received input from an operator that additional time is necessary to clean the grease from inside the slat can in order to complete the required inspection. Boeing stated that the work-hours required to accomplish the inspection are approximately 80 hours (not 20 hours, as specified in Boeing Special Attention Service Bulletin 757-57-0068, Revision 1, dated July 19, 2011 (which was referred to as the appropriate source of service information in the SNPRM (77 FR 32433, June 1, 2012)).

We agree to change the work-hours specified in this AD, but not to the extent requested by AAL. We have changed the estimated costs specified in the AD preamble to 80 work-hours.

AAL stated that it has found that a borescope inserted through the drain hole located in the front spar below each slat track housing opening provides easier access and a better view of the slat housing interior than the proposed detailed inspection. AAL stated that it might be of benefit to operators to specifically include a borescope inspection in the service information work instructions.

We do not agree to change the AD to include borescope procedures. Boeing Special Attention Service Bulletin 757-57-0068, Revision 1, dated July 19, 2011, does not recommend a specific procedure for use of the borescope. We have determined that the current detailed inspection is adequate to address the identified unsafe condition and that delaying this action until after the release of a revised service bulletin is not warranted. However, under the provisions of paragraph (l) of this AD, we will consider requests for an alternate inspection procedure if sufficient data are submitted to substantiate that the alternate inspection procedure would satisfactorily address the identified unsafe condition. We have not changed the AD in this regard.

AAL requested that we include the text of General Note 1 that appeared in Boeing Special Attention Service Bulletin 757-57-0068, dated September 15, 2009, which was referenced in the original NPRM (75 FR 31327, June 3, 2010) as the appropriate source of service information for the proposed actions. AAL stated that this note allowed operators to accomplish the inspections on both wings simultaneously, or on multiple slat can locations on the same wing simultaneously, instead of performing the inspections on each slat can sequentially.

We partially agree. We agree with revising the AD to allow for inspections of multiple slat can locations, on both wings, to be performed simultaneously, because there is no effect on the accomplishment of the service information. We have added new paragraph (h)(3) to this AD to include this provision. However, we disagree with adding the full text of General Note 1 to the AD, because the note could be interpreted as allowing the inspection steps at a specific slat can to be performed out of sequence, which could detrimentally affect the results of the inspection and/or corrective actions.

AAL requested that we extend the compliance time from 24 months to 72 months after issuance of the AD to accomplish the required actions. AAL stated that “extending the inspection threshold to 72 months enables operators who have extended their maintenance program in accordance with Boeing Maintenance Planning Data to accomplish this modification at the first heavy maintenance visit after the effective date of the AD, thus precluding the addition of unnecessary out-of-service days.”

We do not agree to extend the compliance time to accomplish the required actions. In developing an appropriate compliance time for this AD, we considered not only the safety implications, but the manufacturer's recommendations and the practical aspect of accomplishing the actions within an interval of time that corresponds to typical scheduled maintenance for affected operators. Also, the Boeing service information cited in the original NPRM (75 FR 31327, June 3, 2010) has been available to operators since September 2009; therefore, U.S. operators have had ample time to consider initiating those actions, which this AD ultimately requires. Under the provisions of paragraph (l) of this AD, however, we might consider requests for adjustments to the compliance time if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety. We have not changed the AD in this regard.

UPS requested that we revise paragraph (i) of the SNPRM (77 FR 32433, June 1, 2012) to allow reporting of results of inspections performed prior to the effective date of the AD to be in a different format than that specified in Appendix A of Boeing Special Attention Service Bulletin 757-57-0068, Revision 1, dated July 19, 2011. UPS stated that the reporting format provided in Appendix A of Boeing Special Attention Service Bulletin 757-57-0068, Revision 1, dated July 19, 2011, is detailed, and that some of the details of inspections performed prior to the issuance of the SNPRM were not recorded in such detail. UPS noted that such detailed reporting was not part of the original NPRM (75 FR 31327, June 3, 2010).

We do not agree to change the reporting requirement in this AD. The AD requires the use of Appendix A of Boeing Special Attention Service Bulletin 757-57-0068, Revision 1, dated July 19, 2011, as a means of gathering the details of the inspection findings. These additional details, which are not included in Appendix A of Boeing Special Attention Service Bulletin 757-57-0068, dated September 15, 2009, are necessary in order to evaluate whether further rulemaking to address this safety issue is warranted. However, under the provisions of paragraph (l) of this final rule, we might consider requests for approval of alternative reporting methods if sufficient data are submitted to substantiate that such an alternative method would provide an acceptable level of information gathering. We have not changed the final rule in this regard.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously and minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the SNPRM (77 FR 32433, June 1, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the SNPRM (77 FR 32433, June 1, 2012).

We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.

We estimate that this AD affects 645 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in 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.

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

We have 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,

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

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

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

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

We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That SNPRM was published in the Federal Register on October 22, 2012 (77 FR 64442), which proposed to supersede AD 2009-14-13, Amendment 39-15963 (74 FR 34213, July 15, 2009).

Since we issued AD 2009-14-13, Amendment 39-15963 (74 FR 34213, July 15, 2009), Pilatus Aircraft Ltd. has issued revisions to the Limitations section of the airplane maintenance manual to include an inspection of the wing main spar fastener holes at rib 6 for cracks.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD No. 2012-0099, dated June 8, 2012 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

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

We gave the public the opportunity to participate in developing this AD. We received no comments on the SNPRM (77 FR 64442, October 22, 2012) or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the SNPRM (77 FR 64442, October 22, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the SNPRM (77 FR 64442, October 22, 2012).

We estimate that this AD will affect 678 products of U.S. registry. We also estimate that it will take about 3.5 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $300 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $405,105, or $597.50 per product.

In addition, we estimate that any necessary corrective actions that must be taken based on incorporating the new revisions into the limitation section of the maintenance manual will take about 6 work-hours and require parts costing approximately $4,000, for a cost of $4,510 per product. We have no way of determining the number of products that may need these necessary corrective actions.

We estimate that it will take about 12 work-hours per product to comply with the new addition of the wing main spar fastener holes inspection requirement of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the wing main spar fastener holes on U.S. operators to be $691,560, or $1,020 per product.

In addition, we estimate that any necessary repairs to the wing main spar will take about 7 work-hours and require parts costing approximately $5,000, for a cost of $5,595 per product. We have no way of determining the number of products that may need these corrective actions.

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

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

We 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 this AD:

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

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

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

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

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the SNPRM (77 FR 64442, October 22, 2012), the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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

On April 26, 2012, at 77 FR 24982, the Department published an updated Privacy Act system of records notice (SORN) for the ICRS, a BOP SORN originally published on August 27, 1975 (40 FR 38704). The proposed SORN amendments reflected overall modernization and technological changes of BOP's information system, and included updates to system routine uses. On April 26, 2012, at 77 FR 24878, the Department also published a proposed rule to amend 28 CFR 16.97, which had previously established exemptions of the ICRS from various Privacy Act provisions, as expressly authorized by Privacy Act subsection (j). The proposed rule did not significantly change the previously established ICRS exemptions from Privacy Act subsections (c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(H), (5), and (8); (f); and (g). In addition to such exemptions, the proposed rule sought to exempt ICRS from Privacy Act subsections (e)(4)(G) and (I), add exemptions pursuant to Privacy Act subsection (k)(2), and made general editorial revisions to the reasons for the already existing ICRS exemptions. Public comments were invited. Comments on the proposed SORN changes were to be submitted by May 29, 2012 (77 FR 24982); comments on the proposed rule were to be received by the Department's designated recipient by May 29, 2012 (77 FR 24878).

The Department received comments from one member of the public. Although some of the comments received pertain to the applicability of exemptions to this SORN, the comments reference only the Federal Register citation for the proposed SORN modifications and not the proposed rule. Moreover, the comments were not received timely with regard to the proposed rule. Accordingly, the Department has carefully reviewed and analyzed these comments in the context of the SORN, but declines to adopt them and hereby implements the proposed rule without substantive change.

The comments received to the SORN address four main issues: (1) The routine use disclosures to the news media and public; (2) the routine use disclosures to health care agencies/professionals; (3) the inapplicability of 5 U.S.C. 552a(j); and (4) the inapplicability of 5 U.S.C. 552a(k). Responses to the comments are set forth below.

First, the commenter objected to the scope and lack of specificity of two new routine uses, namely routine use (r) for disclosures to the news media and the public, and new routine use (t) for disclosures to health care agencies/professionals. The Department, however, maintains that these routine uses provide appropriate specificity, as each routine use indicates the purpose for permissible disclosures and incorporates a defined standard that further limits disclosures to data relevant to each routine use's particular purpose.

Second, the commenter objected to disclosure of medical information without an individual's consent. The Department understands the sensitivity of medical information of former/current inmates, and thus, has instituted safeguards appropriate for this kind of information. The Department considers the health care disclosures encompassed in routine use (t) to be lawful, appropriate, and necessary to meet BOP's responsibilities for the safekeeping, care, and custody of incarcerated (and formerly incarcerated) persons and for the continued safety and security of federal prisons and the public.

The commenter also objected to the applicability of 5 U.S.C. 552a (j) and (k). Subsection (j)(2) of the Privacy Act covers records created and maintained by the BOP. This subsection includes records maintained by any component that performs as its principal function any activity pertaining to the enforcement of criminal laws, including activities of correctional authorities (e.g. BOP). Further specified in subsection (j)(2) are the types of records that may be exempted, which include, for example: information compiled for the purpose of identifying individual criminal offenders and alleged offenders, including the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status; and reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision. Such records comprise the vast majority of records in the ICRS. Any ICRS records that would not be within the scope of subsection (j)(2) might nonetheless come within the scope of subsection (k)(2), and thus, are appropriately subject to the (k)(2)-based exemptions that have now being established by this final rule. Moreover, the sections of the SORN that reflect the exemptions established by the underlying rule must necessarily conform to the exemption provisions finalized by this final rule.

Additionally, as suggested by the commenter, the Department proposed, and hereby includes in paragraph 16.97(k) of the final rule, that the exemptions apply only to the extent that information in this system is subject to exemption under these subsections.

Finally, the commenter alleged that the Department failed to provide a statement of reasons for the exemptions as required by the Privacy Act. However, the Department detailed the reasons for each exemption in paragraphs 16.97(k)(1)-(12) of both the proposed rule and final rule below. The SORN incorporates this underlying information via the section for “Exemptions Claimed for the System,” which expressly references the rule. Accordingly, the Department hereby declines to adopt changes to the ICRS SORN, and implements this corresponding exemption regulation without substantive change as set forth below.

Pursuant to the authority vested in the Attorney General by 5 U.S.C. 552a and delegated to me by Attorney General Order 2940-2008, 28 CFR part 16 is amended as follows:

I. Background on the Alabama Program II. Submission of the Amendment III. OSM's Findings IV. Summary and Disposition of Comments V. OSM's Decision VI. Procedural Determinations I. Background on the Alabama Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Alabama program effective May 20, 1982. You can find background information on the Alabama program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Alabama program in the May 20, 1982, Federal Register (47 FR 22030). You can also find later actions concerning the Alabama program and program amendments at 30 CFR 901.10, 901.15, and 901.16.

By letter dated June 26, 2012 (Administrative Record No. AL-0664), Alabama sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). Alabama sent the amendment on its own initiative.

We announced receipt of the proposed amendment in the September 5, 2012, Federal Register (77 FR 54490). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on October 5, 2012.

The following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment as described below.

Alabama proposed to add new subsections 880-X-10C-.62(1)(c) and (d) of its surface mining regulations and 880-X-10D-.56(1)(c) and (d) of its underground mining regulations regarding the revegetation standards for success related to its ground cover requirements and determining stocking success for trees and shrubs. Alabama's new subsections contain substantially the same language as their Federal counterparts at 30 CFR 816.116(b)(3)(ii) and (iii) and 30 CFR 817.116(b)(3)(ii) and (iii), respectively. Concerning its tree and shrub stocking requirements, Alabama replaces the Federal requirement related to the phrase “for 60 percent of the applicable minimum period of responsibility” with the phrase “three years.” The minimum applicable period of responsibility for Alabama is five years. Since three years would be 60 percent of the five-year responsibility period, OSM finds the revised language no less effective than the Federal and is approving the changes. Furthermore, Alabama proposed to delete subsections 880-X-10C-.62(2)(c)(iv) of its surface mining regulations and 880-X-10C-.56(2)(c)(iv) of its underground mining regulations regarding tree count requirements on forest land use areas because these subsections became redundant by addition of the previously mentioned subsections. Therefore, we approve Alabama's deletion of these subsections.

Alabama revised subsections 880-X-10C-.62(2)(e) and (g) of its surface mining regulations and 880-X-10D-.56(2)(e) and (g) of its underground mining regulations regarding ground cover requirements and woody plant standards for areas with the post-mining land uses of recreation, wildlife habitat, or undeveloped land. These proposed changes to Alabama's regulations are counterpart to the Federal regulations at 30 CFR 816.116(b)(3) and 30 CFR 817.116(b)(3). Alabama requires that in order to avoid competition, herbaceous ground cover on areas planted with woody vegetation or planted to food plots shall be limited to that necessary to adequately control erosion. Herbaceous ground cover on areas not planted with woody vegetation or as food plots shall equal or exceed 80 percent. We find that this proposed language is no less effective than the Federal requirement that vegetative ground cover shall not be less than that required to achieve the approved postmining land use. Therefore we are approving the change.

We asked for public comments on the amendment, but did not receive any.

On July 11, 2012, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Alabama program (Administrative Record No. AL-0664-02). We did not receive any comments.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). None of the revisions that Alabama proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. However, on July 11, 2012, under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on the amendment (Administrative Record No. AL-0664-02). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On July 11, 2012, we requested comments on Alabama's amendment (Administrative Record No. AL-0664-02). We received a comment letter from the Alabama SHPO stating that Alabama's proposed revisions regarding its revegetation success standards will have no adverse effect on cultural resources listed on, or eligible for, the National Registry of Historic Places (Administrative Record No. AL-0664-03). The ACHP did not respond to our request.

Based on the above findings, we approve the amendment Alabama sent us on June 26, 2012 (Administrative Record No. AL-0664).

To implement this decision, we are amending the Federal regulations, at 30 CFR part 901, that codify decisions concerning the Alabama program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on federally recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. The basis for this determination is that our decision is on a State regulatory program and does not involve Federal regulations involving Indian lands.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior certifies that this rule 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. ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

For the reasons set out in the preamble, 30 CFR part 901 is amended as set forth below:

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Texas program effective February 16, 1980. You can find background information on the Texas program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Texas program in the February 27, 1980, Federal Register (45 FR 12998). You can also find later actions concerning the Texas program and program amendments at 30 CFR 943.10, 943.15, and 943.16.

By email dated August 9, 2012 (Administrative Record No. TX-702), Texas sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). Texas submitted the proposed amendment in response to a September 30, 2009, letter (Administrative Record No. TX-665) from OSM, in accordance with 30 CFR 732.17(c), concerning multiple changes to its ownership and control requirements. Texas also made additional changes to its regulations on its own initiative. The specific sections in the Texas program are discussed in Part III OSM's Findings. Texas intends to revise its program to be no less effective than the Federal regulations.

We announced receipt of the proposed amendment in the November 6, 2012, Federal Register (77 FR 66574). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on December 6, 2012. We did not receive any public comments.

We are approving the amendment as described below. The following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. Any revisions that we do not specifically discuss below concerning nonsubstantive wording or editorial changes can be found in the full text of the program amendment available at www.regulations.gov.

Texas proposed to revise portions of its regulations by making minor reference changes. The Texas regulations that contain the minor reference changes are listed in the table below. These minor reference changes are no less effective than counterpart Federal regulations. Therefore, we approve them.

Texas proposed to add new definitions for Applicant/Violator System; Control or controller; Lands eligible for remining; Own, owner, or ownership; Remining; and Violation. Texas also revised definitions for Knowing or knowingly; Violation notice; and Willful or willfully. Texas' new definitions and revised definitions are substantively the same as counterpart Federal regulations at 30 CFR 701.5. Therefore, we approve Texas' definitions. Texas deleted its previous definition, Owned or controlled and owns and controls, which does not have a Federal counterpart. The deletion of this previously approved definition does not make Texas' program less effective than the Federal regulation. Therefore, we approve Texas' deletion.

Texas proposed to delete the word “renewal” in subsection (c). This subsection places the burden on the applicant to insure that the application or revision complies with all the Commission requirements. We find that Texas' deletion of the word “renewal” makes Texas' regulation substantively the same as counterpart Federal regulation at 30 CFR 773.7(b). Therefore, we approve Texas' deletion.

Texas proposed to delete old language in § 12.116 regarding identification of interests and compliance information for surface mining. Texas proposed to add new language regarding certifying and updating existing permit information, permit applicant and operator information, permit history information, property interest information, violation information, and commission actions. We find that Texas' new language is substantively the same as counterpart Federal regulations at 30 CFR 778.9 through 778.14. Therefore, we approve Texas' revision.

Texas proposed to delete § 12.155 regarding the identification of interest in certifying or updating existing permit information, permit applicant and operator information, permit history information, property interest information, and violation information. Texas' deletion of this section will minimize redundant language found in § 12.116 regarding identification of interests and compliance information. We find that deleting this section does not make Texas' regulation less effective than the Federal regulation. Therefore, we approve Texas' deletion.

Texas proposed to delete old language in § 12.156 regarding the identification of interests and compliance information for underground mining. Texas proposed new language regarding certifying and updating existing permit information, permit applicant and operator information, permit history information, property interest information, violation information, and commission actions. We find that Texas' new language is substantively the same as counterpart Federal regulations at 30 CFR 778.9 through 778.14. Therefore, we approve Texas' revision.

Texas proposed to add new § 12.206 regarding application requirements for operations on lands eligible for remining, in which the applicant must identify potential environmental and safety issues related to prior mining activity, and must describe the mitigating measures that will be taken to ensure that the applicable reclamation requirements of the regulatory program can be met. We find that this new section is substantively the same as the counterpart Federal regulation at 30 CFR 785.25. Therefore, we approve Texas' new section.

Texas proposed to add new language in § 12.215 that requires the entry and updating of data into the Applicant Violator System. Additionally, Texas is adding new language regarding the review of permit history, review of compliance history, and making a permit eligibility determination based on this information. We find that Texas' new language is substantially the same as counterpart Federal regulations at 30 CFR 773.8 through 773.14. Therefore, we approve Texas' new language.

Texas proposed to add new language in § 12.216(16) regarding permit findings related to remining sites, that require the application to contain lands eligible for remining, an identification of potential environmental and safety problems, and mitigation plans that address any potential environmental or safety problems. We find that Texas' new language is substantially the same as counterpart Federal regulation at 30 CFR 773.15(m). Therefore, we approve Texas' new language.

Texas proposed to revise parts of § 12.225(d), (e), (g)(1), (g)(1)(A), (B), (C), (D), (E), (g)(2), and (h) regarding written findings, preliminary findings for improvidently issued permits, permit suspension and rescission timeframes, and appeal rights. We find that Texas' new language is substantially the same as counterpart Federal regulations at 30 CFR 773.21(c), 773.22(b) and (c), 773.23(a), (b), (c), and (d). Therefore, we approve Texas' revisions.

Texas proposed to add new § 12.234 regarding ownership and control challenges specifically the applicability, procedures, burden of proof, written agency decisions, and post-permit issuance information requirements. We find that Texas' new language is substantially the same as counterpart Federal regulations at 30 CFR 773.25, 773.26, 773.26(a), 773.27, 773.28, 774.11, and 774.12. Therefore, we approve Texas' new section.

Texas revised section 12.395(c)(2)(A) and (B), and (3)(A) and (B) of its surface mining regulations; and section 12.560(c)(2)(A) and (B), and (3)(A) and (B) of its underground mining regulations regarding ground cover requirements and woody plant standards for areas with the post-mining land uses of recreation, wildlife habitat, or undeveloped land. The proposed changes to Texas' regulations are substantially the same as counterpart Federal regulations at 30 CFR 816.116(c)(2) and (3), and 30 CFR 817.116(c)(2) and (3). We find that Texas' proposed revisions are no less effective than the Federal requirements, that vegetative groundcover shall not be less than that required to achieve the approved postmining land use. Therefore, we are approving the change.

Texas proposed renumbering its previously approved § 12.234 to § 12.235 regarding the general responsibilities of the Texas Commission, which shall review requests for assistance and determine qualified operators, develop and maintain a list of qualified laboratories, conduct periodic on-site program evaluations, and participate in data coordination with other agencies. This change in numbering is done for consistency with other portions of its regulations. We find that this revision does not change any authorities of the Texas Commission already approved by OSM. Therefore, we approve Texas' revision.

Texas proposed to add new § 12.676 regarding alternative enforcement, specifically for general provisions, criminal penalties, and civil actions for relief. We find that Texas' new section is substantially the same as counterpart Federal regulations at 30 CFR 847.2, 847.11, and 847.16. Therefore, we approve Texas' revision.

Texas proposed to add new paragraph § 12.677(g) regarding the requirement for written notification to the permittee, the operator, and anyone listed or identified as an owner or controller of an operation, within 60 days of issuing a cessation order. We find that Texas' new section is substantively the same as counterpart Federal regulations at 30 CFR 843.11. Therefore, we approve Texas' revision.

We asked for public comments on the amendment, but did not receive any.

On August 16, 2012, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Texas program (Administrative Record No. TX-702.1).

We did not receive any comments.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). None of the revisions that Texas proposed to make in this amendment pertains to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. However, on August 16, 2012, under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on the amendment (Administrative Record No. TX-702.1). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On August 16, 2012, we requested comments on Texas' amendment (Administrative Record No. TX-702.1), but neither the SHPO nor ACHP responded to our request.

Based on the above findings, we approve the amendment Texas sent us on August 9, 2012 (Administrative Record No. TX-702).

To implement this decision, we are amending the Federal regulations at 30 CFR Part 943 that codify decisions concerning the Texas program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on federally recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. The basis for this determination is that our decision is on a State regulatory program and does not involve Federal regulations involving Indian lands.

On May 18, 2001, the President issued Executive Order 13211, which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior certifies that this rule 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.). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

For the reasons set out in the preamble, 30 CFR part 943 is amended as set forth below:

Table of Contents I. Analysis of the State's Submittal II. Final Action III. Statutory and Executive Order Reviews I. Analysis of the State's Submittal

Tennessee's September 3, 1999, SIP submission changes rule 1200-3-9-.01 to add a total of 17 compounds to the list of compounds excluded from the definition of VOC to be consistent with EPA's definition of VOC at 40 CFR 51.100(s). The SIP submittal is in response to EPA's revision to the definition of VOC, (at 40 CFR 51.100(s)) published in the Federal Register on August 25, 1997 (62 FR 44900) and April 9, 1998 (63 FR 17331) adding the 16 compounds listed below in Table 1 and the compound methyl acetate respectively. These compounds were added to the exclusion list for VOC on the basis that they have a negligible effect on tropospheric ozone formation.

Tropospheric ozone, commonly known as smog, occurs when VOC and nitrogen oxide (NO X ) react in the atmosphere. Because of the harmful health effects of ozone, EPA limits the amount of VOC and NO X that can be released into the atmosphere. VOCs are those compounds of carbon (excluding carbon monoxide, carbon dioxide, carbonic acid, metallic carbides, or carbonates, and ammonium carbonate) which form ozone through atmospheric photochemical reactions. Compounds of carbon (or organic compounds) have different levels of reactivity; they do not react at the same speed, or do not form ozone to the same extent. It has been EPA's policy that compounds of carbon with a negligible level of reactivity need not be regulated to reduce ozone (42 FR 35314, July 8, 1977). EPA determines whether a given carbon compound has “negligible” reactivity by comparing the compound's reactivity to the reactivity of ethane. EPA lists these compounds in its regulations at 40 CFR 51.100(s), and excludes them from the definition of VOC. The chemicals on this list are often called “negligibly reactive.” EPA may periodically revise the list of negligibly reactive compounds to add compounds to or delete them from the list.

TDEC's September 3, 1999, SIP revision changes rule 1200-3-9-.01 to add a total of 17 compounds to the list of compounds excluded from the definition of VOC in accordance with the federal list of compounds designated as having negligible photochemical reactivity at 40 CFR 51.100(s).

EPA is approving the aforementioned changes to the State of Tennessee SIP, because it is consistent with EPA's definition of VOC and the CAA. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective April 22, 2013 without further notice unless the Agency receives adverse comments by March 21, 2013.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on April 22, 2013 and no further action will be taken on the proposed rule.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the 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 Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 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, 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 April 22, 2013. 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. Parties with objections to this direct final rule are encouraged to file any comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

The EPA is publishing this rule without a prior proposal because we view this as a noncontroversial action and anticipate no adverse comment. This change amends 40 CFR Part 98, § 98.234(f)(8)(i), Timing of Request, to change the deadline for submitting best available monitoring method requests for future years. The rule has required that for reporting years after 2012, a new request to use best available monitoring methods must be submitted by September 30 of the year prior to the reporting year for which use of best available monitoring methods is sought. In this action, the EPA is revising the deadline from September 30 of the prior reporting year to June 30 of the prior reporting year. This revision does not alter the substantive requirements for entities regulated by the Greenhouse Gas Reporting Rule (40 CFR Part 98, hereinafter “Part 98”), nor does it affect the final confidentiality determinations for Part 98 data that the EPA has made through rulemaking. However, in the “Proposed Rules” section of today's Federal Register , we are publishing a separate notice that will serve as the proposed rule for this amendment should the EPA receive adverse comment on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so by the comment deadline listed in the DATES section of this document. For further information about commenting on this rule, see the ADDRESSES section of this document.

If the EPA receives adverse comment, we will publish a timely withdrawal notice in the Federal Register to inform the public that this direct final rule will not take effect. In that case, we will address all public comments in any subsequent final rule based on the proposed rule.

The Administrator determined that this action is subject to the provisions of Clean Air Act (CAA) section 307(d). If finalized, these amended regulations could affect owners or operators of petroleum and natural gas systems. Regulated categories and entities may include those listed in Table 1 of this preamble:

Table 1 of this preamble is not intended to be exhaustive, but rather provides a guide for readers regarding facilities likely to be affected by this action. Although Table 1 of this preamble lists the types of facilities that could potentially be affected by this action, other types of facilities not listed in the table could also be affected. To determine whether you are affected by this action, you should carefully examine the applicability criteria found in 40 CFR part 98 Subpart A and 40 CFR part 98, subpart W. If you have questions regarding the applicability of this action to a particular facility, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Under CAA section 307(b)(1), judicial review of this final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by April 22, 2013. Under CAA section 307(d)(7)(B), only an objection to this final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. This section also provides a mechanism for us to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to the EPA that it was impracticable to raise such objection within [the period for public comment], or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of this rule.” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, Environmental Protection Agency, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave. NW., Washington, DC 20004, with a copy to the person listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20004. Note, under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce these requirements.

The following acronyms and abbreviations are used in this document.

Organization of This Document. The information presented in this preamble is organized as follows:

On November 30, 2010 (75 FR 74459) the EPA finalized the Petroleum and Natural Gas Systems source category, Subpart W, of the Greenhouse Gas Reporting Rule. As part of that rule, the EPA finalized detailed provisions in 40 CFR 98.234(f), allowing for owners or operators to use best available monitoring methods for specified parameters in 40 CFR 98.233 where additional time is needed to comply with the monitoring and quality assurance/quality control (QA/QC) requirements as outlined in the rule. In these cases, owners or operators are given the flexibility, upon approval, to estimate parameters for equations in 40 CFR 98.233 by using either monitoring methods currently used by the facility that do not meet the specifications of a relevant Subpart, supplier data, engineering calculations, or other company records.

Owners or operators desiring to use best available monitoring methods for reporting years 2012 and beyond are required to submit a request by September 30 of the year prior to the reporting year for which use of best available monitoring methods are being sought.

This direct final rule amends one provision related to best available monitoring methods required in 40 CFR 98.234(f)(8)(i). This action amends the date by which owners or operators must submit a request to use best available monitoring methods for future reporting years from September 30 to June 30 of each year prior to the reporting year for which use of best available monitoring methods is sought. This amendment does not change any other best available monitoring method requirements as outlined in 40 CFR 98.234(f).

EPA currently has authority to review and finalize best available monitoring method request determinations during the reporting year in which the use of best available monitoring methods are sought. However, making this annual deadline earlier will create a more realistic schedule for processing best available monitoring method requests and will improve EPA's ability to inform owners or operators of EPA's final determination prior to the reporting year for which such methods are sought. For example, in 2012, the EPA received more requests than anticipated, many of which were quite technical in nature. Based on a review of those requests, the EPA has determined that, additional time is needed to carefully review requests it may receive in future years, and in cases where the EPA deems it necessary, to afford time to request further information or to clarify questions or concerns about the request. The September 30 deadline does not provide a realistic time period to sufficiently review and process the requests and notify all owners or operators of final determinations.

The EPA anticipates that this amendment will have minimal adverse impact on owners or operators requesting to use best available monitoring methods. First, the EPA believes that the amendment will provide greater certainty to reporters as they plan for the future reporting year. Further, the EPA has streamlined the submittal process itself, thus reducing the burden with submitting best available monitoring method requests to the EPA. EPA has developed a web form in the electronic greenhouse gas reporting tool (eGGRT) that allows submitters to enter information according to rule requirements. After an initial request has been submitted, eGGRT stores the information in that request and the owner or operator can use the stored information as the basis for a new request in subsequent reporting years.

Finally, some owners or operators might be concerned that they will have to submit a best available monitoring method request earlier in the year and that unforeseen circumstances could arise later on in the year. Because it will be the fourth year of implementation of Subpart W of the GHGRP, the EPA expects such a scenario to be highly unlikely. However, should such a scenario arise, the Agency does have authority to review a request received after the deadline. Thus, in cases of uncertainty, if the reporter anticipates the potential need for best available monitoring methods and the situation is unresolved at the time of the deadline, under 40 CFR 98.234(f)(1) owners or operators may elect to submit written notice of the potential situation by the June 30 deadline through the eGGRT system.

As noted previously, the EPA anticipates that this amendment would result in greater certainty to reporters choosing to submit best available monitoring method requests to the EPA for use in future years.

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

This action does not impose any new information collection burden. This amendment affects a provision in the rule related to the date of submission for best available monitoring method requests and does not affect what is submitted in those request or any associated burden with submitting those requests. However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations, 40 CFR part 98, Subpart W (75 FR 74458), under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-0651. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this final rule on small entities, small entity is defined as: (1) a small business as defined by the Small Business Administration's regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of these rule amendments on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analysis is to identify and address regulatory alternatives “which minimize any significant economic impacts of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that the rule will not have a significant economic impact on a substantial number of small entities if the rule relives regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. EPA anticipates that this amendment would result in greater certainty to reporters choosing to submit best available monitoring method requests to the EPA for use in future years.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, requires Federal agencies, unless otherwise prohibited by law, to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Federal agencies must also develop a plan to provide notice to small governments that might be significantly or uniquely affected by any regulatory requirements. The plan must enable officials of affected small governments to have meaningful and timely input in the development of the EPA regulatory proposals with significant Federal intergovernmental mandates and must inform, educate, and advise small governments on compliance with the regulatory requirements.

This action does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Thus, the amendments in this action are not subject to the requirements of section 202 and 205 of the UMRA. This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.

This action applies to an optional provision in the final rule for Subpart W, which in turn applies to petroleum and natural gas facilities that emit greenhouse gases. Few, if any, State or local government facilities would be affected. This action also does not limit the power of States or localities to collect GHG data and/or regulate GHG emissions. Thus, Executive Order 13132 does not apply to this action.

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). Further, this action would not result in any changes to the current requirements of 40 CFR part 98 Subpart W and only applies to optional provisions in 40 CFR part 98 Subpart W. Thus, Executive Order 13175 does not apply to this action.

Although Executive Order 13175 does not apply to this action, the EPA sought opportunities to provide information to Tribal governments and representatives during the development of the rule for Subpart W promulgated on November 30, 2010. A summary of the EPA's consultations with Tribal officials is provided in Sections VIII.E and VIII.F of the preamble to the 2009 final rule and Section IV.F of the preamble to the 2010 final rule for Subpart W (75 FR 74485).

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This action does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

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.

The EPA has determined that this action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment because it is a rule addressing information collection and reporting procedures.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 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 rule and the required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the U.S. 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). This rule is effective on April 22, 2013 without further notice, unless the EPA receives adverse comment by March 21, 2013. If the EPA receives adverse comment by March 21, 2013, the EPA will publish a timely withdrawal notice in the Federal Register to inform the public that this rule will not take effect.

For the reasons discussed in the preamble, title 40, chapter I, of the Code of Federal Regulations is amended as follows:

Table of Contents I. Introduction II. NPL Deletion Criteria III. Deletion Procedures IV. Basis for Site Deletion V. Deletion Action I. Introduction

EPA Region 5 is publishing this direct final Notice of Deletion of the Kerr-McGee Sewage Treatment Plant Superfund Site (Kerr-McGee STP Site) from the National Priorities List (NPL). The NPL constitutes Appendix B of 40 CFR part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.

Because EPA considers this action to be noncontroversial and routine, this action will be effective April 22, 2013 unless EPA receives adverse comments by March 21, 2013. Along with this direct final Notice of Deletion, EPA is co-publishing a Notice of Intent to Delete in the “Proposed Rules” section of the Federal Register . If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely withdrawal of this direct final Notice of Deletion before the effective date of the deletion, and the deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Kerr-McGee STP Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the site from the NPL unless adverse comments are received during the public comment period.

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Pursuant to CERCLA Section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of the Site:

(1) EPA consulted with the State of Illinois prior to developing this direct final Notice of Deletion and the Notice of Intent to Delete co-published today in the “Proposed Rules” section of the Federal Register .

(2) EPA has provided the State thirty (30) working days for review of this notice and the parallel Notice of Intent to Delete prior to their publication today, and the State, through the IEPA, has concurred on the deletion of the Site from the NPL.

(3) Concurrently with the publication of this direct final Notice of Deletion, a notice of the availability of the parallel Notice of Intent to Delete is being published in a major local newspaper, “The Daily Herald.” The newspaper notice announces the 30-day public comment period concerning the Notice of Intent to Delete the Site from the NPL.

(4) EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting the Site from the NPL.

The Kerr-McGee STP Site is located in West Chicago, DuPage County, Illinois, and is comprised of the West Chicago Sewage Treatment Plant and approximately 1.2 miles of the West Branch DuPage River. The Site property and the sediments, banks and floodplain soils along the river were contaminated with radioactive thorium waste materials that originated at a thorium milling facility in West Chicago known as the Rare Earths Facility (REF). West Chicago is located approximately 30 miles west of downtown Chicago, has a population of approximately 27,086 (2010 census), and is characterized as suburban, with primarily high-density, single-family residential housing. The STP property is owned and operated by the City of West Chicago and is located at Illinois Routes 59 and 38 at Sarana Drive. The West Branch DuPage River is located along the eastern edge of the STP property and flows south through forest preserve and residential properties. The STP site extends as far south as the river's confluence with Kress Creek; all areas of the river south of that point are included as part of the Kerr-McGee Kress Creek/West Branch DuPage River Site, a related site in the West Chicago area.

The REF, operated by Lindsay Light and Chemical Company and its successors from 1932 until 1973, produced radioactive elements such as thorium, radium and uranium, along with gas lantern mantles, by extracting the elements from monazite sands and other ores. These operations resulted in the generation of radioactive mill tailings. Radioactive ore, tailings and process wastes from the REF were used at the STP property as fill material and to contour grounds, and also were used as fill along portions of the riverbank. Over time, some of the contaminated materials located on the STP property and along the riverbank entered the river through erosion and surface water runoff and were deposited downstream in sediments, banks and flood plain soils. Kerr-McGee purchased the REF in 1967 and maintained operations until closing the facility in 1973.

EPA proposed the STP site to the National Priorities List (NPL) on October 15, 1984 (49 FR 40320), and added it to the final list on August 30, 1990 (55 FR 35502). In 1985, Kerr-McGee entered into an agreement with the City of West Chicago under which Kerr-McGee conducted cleanup activities at the STP property, removing an estimated 57,000 cubic yards of material from the site during 1986 and 1987.

Contaminated materials were left behind in certain areas of the STP property and along the riverbank, and the 1.2 mile stretch of the river was not addressed by the City's agreement with Kerr-McGee. No other removal actions were taken at the site until the EPA required the time-critical removal action discussed below. Currently, there are no redevelopment plans for the STP site.

EPA began a fund-lead remedial investigation/feasibility study (RI/FS) at the STP site in 1992. EPA's RI was designed to (1) identify areas of the STP property where residual contamination was left behind during the mid-1980s cleanup, and (2) fully investigate the nature and extent of contamination in the river. During settlement negotiations with Kerr-McGee, a potentially responsible party (PRP), associated with this site and three other related NPL sites in the West Chicago area, Kerr-McGee agreed to take over the completion of the RI/FS and to conduct a time-critical removal action at the STP property. EPA then divided the STP site into two operable units: An Upland Operable Unit (STP Upland OU) consisting of the STP property, and a second OU, consisting of the riverbank along the STP property and the 1.2 mile stretch of the West Branch DuPage River from the STP property to the confluence with Kress Creek (STP River OU).

On October 7, 2003, EPA signed an action memorandum for a time-critical removal action at the STP Upland OU, and on October 16, 2003, EPA entered into an administrative order on consent (AOC) in which Kerr-McGee agreed to conduct the removal action. The selected removal action included excavation and offsite disposal of materials contaminated with radiation until predetermined verification points based upon relevant and appropriate state and federal regulations were achieved. The predetermined verification points, consisting of specified depths/elevations at numerous points across the STP property, were based on extensive site characterization data and were designed to remove materials that had been identified during site characterization activities as exceeding 7.2 picoCuries per gram (pCi/g) combined radium. (The relevant and appropriate state and federal regulations include a health-based surface soil standard of 5 pCi/g above background, and background in the West Chicago area was determined to be 2.2 pCi/g.) The selected removal action also included backfilling and restoring the excavated areas of the site. Kerr-McGee began on-site removal action work at the STP Upland OU in October 2003.

On November 21, 2003, EPA signed an AOC with Kerr-McGee under which they agreed to complete the RI/FS at the STP site. Kerr-McGee completed the RI and FS reports, and EPA completed the human health and ecological risk assessment reports. Human health risks that were identified above protective levels include soil ingestion and inhalation (non-Radon) risks to maintenance workers and radon inhalation risks to future residential users at the Upland OU. At the STP River OU, residential risks to radon inhalation and recreational risks to fish ingestion were found to be above a protective level. For the ecological risk assessment, chemical and radiation effects were assessed at both OUs. EPA determined that potential risks to environmental receptors would be minimized or eliminated by the cleanup actions taken at the site.

Kerr-McGee completed most of the on-site removal action work at the STP Upland OU during 2004. A total of 6,557 loose cubic yards of contaminated soil was removed from the site. Because portions of the STP property were used to support remedial action work at the STP River OU, final restoration activities could not be completed at the Upland OU until 2006. EPA and the State conducted a pre-final inspection of the removal action work at the STP Upland OU on August 8, 2006 and determined that Kerr-McGee had constructed the remedy in accordance with the removal action plans and specifications. One minor item was identified during the pre-final inspection; regrading and reseeding of a small area around a storm inlet manhole—and that action was completed by August 11, 2006.

In accordance with the AOC for the STP Upland OU, on September 12, 2006, Kerr-McGee prepared and submitted a final removal action report to EPA for review and approval. EPA approved the removal action report and issued a Notice of Completion of activities required by the AOC on August 12, 2008. The cost of the time-critical removal action at the STP Upland OU reported in the final removal action report was $3.15 million.

On September 30, 2004, EPA signed a Record of Decision (ROD) for the STP Site. The ROD for the STP Site addressed both the Upland OU and the River OU and identified the following remedial action objectives (RAOs) for the site:

• Reduce risks to human health and the environment presented by sediments and soils containing elevated levels of total radium by reducing soil concentration to levels that are consistent with the requirements outlined in 40 CFR part 192 (the regulations implementing the Uranium Mill Tailings Radiation Control Act) and Illinois Source Material Milling Regulations; and

• Mitigate, to the extent practicable, potential adverse effects to the environment as a result of implementation of remedial activities at the site.

For the STP Upland OU, the ROD selected no further action after completion of the ongoing time-critical removal action at that portion of the site. For the STP River OU, the ROD selected the following remedy:

• Excavation and off-site disposal of contaminated soils and sediments from the site using mechanical “dry excavation” techniques. Contaminated materials are those materials within pre-defined excavation envelopes based on extensive site characterization activities that identified materials exceeding 7.2 pCi/g;

• Mitigation and restoration activities to restore aquatic and terrestrial areas of the site, including revegetation of appropriate areas and stabilization of stream banks;

• Monitoring and maintenance of restored areas to assess the effectiveness of stabilization and revegetation measures.

Similar to the removal action at the STP Upland OU, the cleanup at the STP River OU included excavation of materials contaminated with radiation until predetermined verification points were achieved. The predetermined verification points, consisting of specified depths/elevations at numerous points, were based on extensive site characterization data and were designed to remove materials that had been identified as exceeding 7.2 pCi/g.

The ROD specified that the selected remedy for the site is protective of human health and the environment and will not result in hazardous substances, pollutants or contaminants remaining on-site above levels that allow for unlimited use and unrestricted exposure. As a result, institutional controls are not required for the Site.

In a 2005 federal consent decree with the United States, EPA, Department of Interior, and the State of Illinois, Kerr-McGee agreed to perform the remedial design/remedial action (RD/RA) at the STP River OU and to complete the removal action at the STP Upland OU in accordance with the AOC for that portion of the site. Kerr-McGee conducted the RD for the STP River OU as required by the ROD, and the STP River OU was divided into two discreet “Reaches” for design and construction purposes. Reach 5A comprises the northern portion of the STP River OU, and extends from the STP property to Gary's Mill Road. Reach 5B comprises the southern portion of the STP River OU and extends from Gary's Mill Road to the river's confluence with Kress Creek. On-site remedial action construction work began in Reach 5A on November 1, 2004, after EPA conditionally approved the remedial design for a portion of that reach. Remedial action work continued in Reaches 5A and 5B of the site during portions of 2005 and 2006. The sequencing of work at the STP River OU depended on Kerr-McGee's progress conducting remedial action work at the related Kerr-McGee Kress Creek site. Kerr-McGee conducted remedial activities at the STP River OU as planned.

Reach 5A of the site was cleaned up using dry excavation methods. Individual excavation areas located along the river bank and/or in the river corridor were isolated with “super sac” or sandbag enclosures, and the area within each enclosure was then dewatered so that excavation and restoration work could proceed in relatively dry conditions. A total of 1,432 loose cubic yards of contaminated soil and sediment was removed from Reach 5A. EPA and the State conducted a pre-final inspection of the remedial action work in Reach 5A on August 8, 2006, and determined that Kerr-McGee constructed the remedy for that portion of the site in accordance with the RD plans and specifications. Minor items were identified during the pre-final inspection, which included completing several plantings and removing some silt fence, and these were completed by August 11, 2006.

Dry excavation of Reach 5B of the site was accomplished by using a pump bypass and dewatering system which (1) Isolated the entire reach with sheet pile diversion and backflow dams, (2) diverted the flow of the West Branch DuPage River through a 48″ bypass pipe, and (3) used dewatering sumps within the Reach to control groundwater in the excavation areas. All excavation work associated with the removal of contaminated materials was completed by September 9, 2006, and all contaminated materials were shipped off-site by September 20, 2006. The pump bypass system remained in operation to complete bank stabilization activities and in-stream habitat enhancements in dry conditions. Under a separate consent decree between Kerr-McGee and the local communities, Kerr-McGee was required to conduct additional habitat enhancement activities that were not required by the 2005 federal consent decree. These additional activities necessitated the pump bypass system operating for a longer period of time than would have been required to achieve the requirements of the ROD and the 2005 federal consent decree.

EPA and the State conducted a pre-final inspection of the remedial action work in Reach 5B on September 29, 2006, and determined that Kerr-McGee constructed the remedy for that portion of the site in accordance with the RD plans and specifications.

Contaminated areas at the Kerr-McGee STP site were identified by the installation of hundreds of soil and sediment borings where gamma radiation logging was conducted to determine the lateral and vertical extent of contamination. To verify that the cleanup goals were achieved at the STP Upland OU, confirmatory soil samples were collected and the results were documented in the Final Removal Action Report, dated September 12, 2006. Compliance with the 7.2 pCi/g cleanup standard in the STP River OU was determined using field surveys to verify that excavation in the river and flood plain had achieved the identified elevations and lateral extent where contamination was deposited.

In accordance with the 2005 federal consent decree, the extensive excavation and radiation logging, and the field surveys document the successful completion of the remedial action and show that verification soil samples are not necessary. In addition, the 7.2 pCi/g cleanup standard at the River OU is a residential cleanup number which represents a conservative standard for the reasonably anticipated uses of the River area.

There are no remaining operation and maintenance requirements for the Kerr-McGee STP Site. All response activities are complete and all physical components of the response have been removed.

Hazardous substances will not remain at the site above levels that allow unlimited use and unrestricted exposure after the completion of the remedial action. Pursuant to CERCLA section 121(c), and as provided in the current guidance on Five Year Reviews: OSWER Directive 9355.7-03B-P, Comprehensive Five-Year Review Guidance, June 2001, five-year reviews are not required for this site.

Public participation activities have been satisfied as required in CERCLA Section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. Documents in the deletion docket which EPA relied on for recommendation of the deletion of this site from the NPL are available to the public in the information repositories and at www.regulations.gov.

The NCP (40 CFR 300.425(e)) states that a site may be deleted from the NPL when no further response action is appropriate. EPA, in consultation with the State of Illinois, has determined that all required response actions have been implemented and no further response action by the responsible parties is appropriate.

EPA, with concurrence from the State of Illinois through the Illinois Environmental Protection Agency, has determined that all appropriate response actions under CERCLA have been completed. Therefore, EPA is deleting the Site from the NPL.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective April 22, 2013 unless EPA receives adverse comments by March 21, 2013. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final Notice of Deletion before the effective date of the deletion, and it will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

For the reasons set out in this document, 40 CFR part 300 is amended as follows:

On July 6, 2012, President Obama signed into law MAP-21 (Pub. L. 112-141, 126 Stat. 405), which contains new requirements that the FHWA and FTA, hereafter referred to as the “Agencies,” must meet in complying with NEPA (42 U.S.C. 4321 et seq. ). Section 1315(a) of MAP-21 required the Secretary of Transportation to engage in rulemaking to categorically exclude from the requirements to prepare an environmental assessment (EA) or environmental impact statement (EIS) under 23 CFR part 771, the repair or reconstruction of any road, highway, or bridge damaged by an emergency that is either (1) declared by the Governor of the State and concurred in by the Secretary; or (2) declared by the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq. ) if such repair or reconstruction activity is in the same location with the same capacity, dimensions, and design as the original road, highway, or bridge as before the declaration; and is commenced within a 2-year period beginning on the date of the declaration. In addition, pursuant to section 1315(b) of MAP-21, the Secretary must ensure that the rulemaking helps conserve Federal resources and protect public safety and health by providing for periodic evaluations to determine whether reasonable alternatives exist to roads, highways, or bridges that repeatedly require repair and reconstruction activities.

The Agencies published a notice of proposed rulemaking (NPRM) addressing the section 1315 MAP-21 requirements on October 1, 2012 (77 FR 59875). This final rule makes changes to 23 CFR 771.117(c)(9) and adds 771.118(c)(11) in response to MAP-21's section 1315 requirements and the comments provided during the NPRM comment period.

It should be noted that the Agencies jointly published an NPRM in March 2012 (77 FR 15310) and subsequently a final rule on February 7, 2013 (78 FR 8964), which, among other changes, created section 771.118. The Agencies are calling attention to this new section because it will be referenced throughout this final rule. Section 771.118 contains categorically excluded actions and examples, as well as criteria, for FTA actions. With this revision, section 771.117 applies to FHWA actions, and section 771.118 applies to FTA actions.

It is important to emphasize that the availability of the CEs for emergency actions is subject to the same requirements for the use of any other CE in part 771. First, the CEs, like any other CE in part 771, apply to the Agencies' actions. Second, the use of the emergency-related CEs would include an identification of any unusual circumstances requiring further environmental studies to determine if the CE classification is proper (23 CFR 771.117(b) and 771.118(b)). Examples of unusual circumstances include significant environmental impacts, substantial controversy on environmental grounds, significant impacts on properties protected by 23 U.S.C. 138/49 U.S.C. 303 (also known as “section 4(f)” of the Department of Transportation Act) or section 106 of the National Historic Preservation Act (NHPA), or inconsistencies with any Federal, State, or local law, requirement or administrative determination relating to the environmental aspects of the action (23 CFR 771.117(b)(1)-(4) and 23 CFR 771.118(b)(1)-(4)). Third, the availability of the CEs does not exempt the applicability of other environmental requirements such as, but not limited to, section 7 of the Endangered Species Act (ESA), section 106 of NHPA, section 404 permits under the Clean Water Act (CWA), 23 U.S.C. 138/49 U.S.C. 303 (section 4(f)), and bridge permits under the General Bridge Act of 1946. These requirements must be met regardless of the applicability of the CE under NEPA. Some of these requirements may involve major Federal actions for other Federal agencies (e.g., approvals or issuance of permits) that would trigger a different NEPA process for those Federal agencies. Early coordination amongst the applicants and the Federal agencies is highly recommended to prevent a conflict in the Federal agencies' NEPA, permitting, and other review processes.

Fourth, the action must comply with NEPA requirements relating to connected actions and segmentation ( see, e.g., 40 CFR 1508.25 and 23 CFR 771.111(f)). The Agencies recognize the importance of ensuring that projects are not improperly segmented. The action must have independent utility, connect logical termini when applicable (i.e., linear facilities), and not restrict consideration of alternatives for other reasonably foreseeable transportation improvements. Finally, a CE may not be established if the action normally has significant environmental impacts either individually or cumulatively and may not be applied to a proposed action if there are unusual circumstances. For example, a CE may not be used if the action induces significant impacts to planned growth or land use for the area; requires the relocation of significant numbers of people; has significant impacts on any natural, cultural, recreational, historic, or other resource; involves significant air, noise, or water quality impacts; or has significant impacts on travel patterns (23 CFR 771.117(a) and 23 CFR 771.118(a)).

The October 1, 2012, NPRM proposed to expand 23 CFR 771.117(c)(9) with a new subsection (ii) that provided for “[t]he repair or reconstruction of any road, highway, or bridge that is in operation or under construction when damaged by an emergency declared by the Governor of the State and concurred in by the Secretary, or for a disaster or emergency declared by the President pursuant to the Robert T. Stafford Act (42 U.S.C. 5121) if the repair or reconstruction activity is: (A) [i]n the same location with the same capacity, dimensions, and design as the original road, highway, or bridge as before the declaration, and (B) [c]ommenced within a 2-year period beginning on the date of the declaration” (77 FR 59878). In addition to the proposed CE language, the NPRM sought comments on whether the emergency activities categorically excluded under the revised CE should also include the following: (1) Construction of engineering and design changes to a damaged facility to meet current design standards; (2) repair and reconstruction of adjacent transportation facilities within the right-of-way damaged by the emergency (such as bike paths or ancillary structures); (3) construction of betterments to the damaged facilities beyond those eligible under 23 U.S.C. 125; (4) construction of engineering and design changes to a damaged facility for the purpose of seismic retrofitting; (5) construction of engineering and design changes to a damaged facility to deal with future extreme weather events and sea level rise; and (6) construction of other engineering and design changes to a damaged facility to address concerns such as safety and environmental impacts.

The NPRM also sought comment on whether the CE should include actions to repair, reconstruct, or replace a facility that has experienced catastrophic failure regardless of cause. Catastrophic failure was described as the sudden and complete failure of a major element or segment of the facility that causes a devastating impact on transportation services.

Additionally, the NPRM requested comments on approaches to addressing section 1315(b) of MAP-21. Specifically, the Agencies requested comments on a proposal to address the requirements of this section in future rulemakings required by other provisions of MAP-21. Section 1106 of MAP-21 amends 23 U.S.C. 119 by requiring State departments of transportation (State DOTs) to develop risk-based asset management plans. The MAP-21 also created several new transit programs under chapter 53 of title 49 U.S. Code. The Agencies requested comments on several questions related to the periodic evaluation requirements in section 1315(b).

The comment period for the NPRM closed on November 30, 2012, and additional comments were received on December 3, 2012. All comments were considered in the development of this final rule.

Comments were received from 12 State DOTs, 7 public interest groups, 4 transit agencies, and 2 Federal agencies. Commenters provided 111 comments on the NPRM, which were organized thematically and according to whether the comment addressed section 1315(a) or section 1315(b) of MAP-21, or were general comments.

Comments generally were supportive of the proposed rulemaking. Commenters offered specific comments to the statutory language adopted from section 1315(a) of MAP-21; provided input on the disposition of section 1315(b); commented on the six actions proposed for inclusion in the CE; and proposed revised language for consideration in the final rule. Eleven State DOTs, six public interest groups, one rail agency, and three transit agencies provided comments on the six additional activities listed in the NPRM for comment (see Section-by-Section Discussion of Comments below). The commenters indicated support for one or more of the listed activities. Seven State DOTs, three public interest groups, and two transit agencies expressed support for all six proposed activities.

Regarding section 1315(b), one public interest group and seven State DOTs commented on the NPRM that they agreed that the periodic evaluations should be part of risk-based asset management plans developed by the State. The Agencies agree with this proposal and are addressing the periodic evaluations required under MAP-21 section 1315(b) through a rulemaking implementing section 1106 of MAP-21 and through changes to implement the new programs authorized by MAP-21. As discussed in the Section-by-Section Discussion of Comments below, the Agencies relied on section 1315(b)'s requirement to “ensure that the rulemaking helps conserve Federal resources and protect public safety and health” in making improvements to the final CE.

One commenter commented that “once an event is determined to qualify for CE status, this decision should be treated as permanent and not subject to subsequent reconsideration.” All NEPA decisions under 23 CFR 771.117 are subject to compliance with sections 771.117(b) and 771.129(c). The NEPA decisions under 23 CFR 771.118 are subject to compliance with sections 771.118(b) and 771.129(c). The final rule does not eliminate these requirements. Additional review resulting from unusual circumstances may warrant changes to the type of environmental review for a particular proposed project to ensure the Agencies provide the appropriate degree of consideration for environmental impacts resulting from proposed actions.

One commenter recommended that the Agencies establish a flexible process for determining when CEs should be used rather than relying on a constraining list of activities eligible for CEs. The commenter also suggested providing set time limits on a project-by-project basis for the completion of NEPA. The final rule does not include either suggestion; the ideas proposed by the commenter fall outside the scope of this rulemaking.

No comments were received on this proposed change. The amendment will add a reference to MAP-21 and section 1315 of that statute. The FTA had considered adding a reference to section 20017 of MAP-21, which created the new FTA Emergency Relief program. Since that time, FTA has determined that section 20017 does not provide authority for the CE being added by this rulemaking and is not needed for part 622. For information on the Agencies' authority for this rulemaking, see the section entitled “Statutory/Legal Authority for This Rulemaking” below.

No comments were received on this change. The amendment will add a reference to MAP-21 and section 1315 of that statute. The FHWA had considered adding a reference to section 1106 of MAP-21, which created the requirement for risk-based asset management plans. Since that time, FHWA has determined that section 1106 does not provide authority for the CE language being added by this rulemaking and is not needed for part 771. For information on the Agencies' authority for this rulemaking, see the section entitled “Statutory/Legal Authority for This Rulemaking” below.

Three public interest groups, one rail agency, six State DOTs, and two transit agencies commented that the final rule should include language that expands the CE to cover catastrophic failures regardless of cause. One commenter specifically noted that a scenario could occur where there is a catastrophic failure of a major bridge or tunnel from a disaster that does not rise to the level of an emergency declared by the Governor and concurred in by the Secretary, or a disaster or emergency declared by the President under the Stafford Act. One commenter noted that “the effects of catastrophic failures to public safety and transportation are essentially the same as emergencies, and the need to quickly and safely repair the failures remains the same.” The commenter encouraged the Agencies to define all qualifying terms such as “sudden and complete failure” and “devastating impact” to account for different temporal and spatial scales. For example, “a bridge may be rendered unusable due to river scouring over several months without the bridge completely collapsing; the impact of such a bridge failure would be devastating to the public and the economy in many areas” of a State.

The Agencies have decided to limit the CE language to the same circumstances that would trigger the FHWA and FTA emergency relief programs. Under the Agencies' emergency relief programs, the damage to the facility must have been caused by a natural disaster or a catastrophic failure from an external cause. Limiting the new CE language to the same circumstances that trigger the emergency relief programs would ensure consistency. It also will avoid the need to create a separate and independent process for the Secretary's concurrence with a Governor's emergency declaration for catastrophic failures that do not qualify for the emergency relief programs.

The Agencies are amending section 771.117(c)(9) by adding the introductory phrase “[t]he following actions for transportation facilities damaged by an incident resulting in an emergency declared by the Governor of the State and concurred in by the Secretary, or a disaster or emergency declared by the President pursuant to the Robert T. Stafford Act (42 U.S.C. 5121).” This introductory phrase clarifies that all the actions covered in the amended and new CE language must be the result of the Agencies' (or their applicants or recipients') efforts to restore surface transportation in the aftermath of Presidentially declared emergency or disasters, or emergencies declared by the Governor of a State and concurred in by the Secretary.

This introductory language also is included in 23 CFR 771.118(c)(11) with the same intent. As mentioned above, categorically excluded FTA actions are now found at 23 CFR 771.118. Through this final rule, FTA is incorporating the new emergency CE established pursuant to section 1315 of MAP-21 by adding a new CE at section 771.118(c)(11) that is equivalent to the CE applicable to FHWA found at 23 CFR 771.117(c)(9). This new CE covers emergency repairs under 49 U.S.C. 5324 for public transportation infrastructure “damaged by an incident resulting in an emergency declared by the Governor of the State and concurred by the Secretary, or a disaster or emergency declared by the President pursuant to the Robert T. Stafford Act (42 U.S.C. 5121).”

One public interest group and three State DOTs expressed a desire to maintain the CE currently found in 23 CFR 771.117(c)(9) to ensure that flexibility is maintained with the final rule to continue categorically excluding emergency repairs under 23 U.S.C. 125, the FHWA Emergency Relief Program.

The Agencies continue to believe that “emergency repairs” do not typically result in significant environmental impacts. “Emergency repairs” are defined in the FHWA Emergency Relief Program regulations as “[t]hose repairs including temporary traffic operations undertaken during or immediately following the disaster occurrence for the purpose of: (1)[m]inimizing the extent of damage, (2) [p]rotecting remaining facilities, or (3) [r]estoring essential traffic” (23 CFR 668.103). The original language in section 771.117(c)(9) is retained as new paragraph (c)(9)(i) to continue covering these types of actions. The CE language for emergency repairs under 23 U.S.C. 125 was not carried forward to section 771.118(c)(11), however, due to its lack of applicability to FTA actions.

One rail agency and three public interest groups commented on the section 1315(a) language noting that the language was overly restrictive and should be expanded to include infrastructure components specific to rail and transit infrastructure. One commenter proposed specific language to amend section 771.117(c)(9)(ii) to read “[t]he repair or reconstruction of any road, highway, bridge, or transit facility that is in operation or under construction * * *” and to amend proposed 23 CFR 771.117(c)(9)(ii)(A) to read “[i]n the same location with the same capacity, dimensions, and design as the original road, highway, bridge, or transit facility as before the declaration * * * ” Another commenter proposed adding railroad right-of-way, railroad bridge, or railroad tunnel to proposed 23 CFR 771.117(c)(9)(ii)(A). Another commenter recommended clarification of the wording to include “critical transportation infrastructure including but not limited to any road, highway, rail, bridge, tunnel, or dock * * *”

The Agencies added the term “transit facility” to the list of transportation facilities that are subject to the new CE language at sections 771.117(c)(9)(ii) and 771.118(c)(11)(ii). The addition of this term expands the CE language to include the emergency repair or reconstruction of all transit facilities following an emergency or disaster, not just those that are co-located on roads or highways. The term “transit facility” includes rail transit and components of ferry terminals and systems, such as docks, piers, platforms, pedestrian loading structures, and ticketing facilities. This addition goes further than the list of transportation facilities provided in section 1315 of MAP-21. Documentation supporting this expansion is discussed below.

The final rule also adds section 771.118(c)(11)(i) to cover emergency repairs pursuant to 49 U.S.C. 5324. This addition will cover activities under the Public Transportation Emergency Relief Program (49 U.S.C. 5324) created by section 20017 of MAP-21. The types of activities covered (i.e., emergency repair of transit facilities) are analogous to the activities covered by the existing CE for emergency repairs in FHWA's Emergency Relief Program.

To support the inclusion of public transportation infrastructure in sections 771.117(c)(9) and 771.118(c)(11), FTA revisited and cross-referenced the substantiation record for FTA's March 2012 NEPA NPRM (Docket No. FTA-2011-0056-0002), which proposed a new list of CEs for FTA (77 FR 15310 (Mar. 15, 2012)). A substantiation record summary is provided in the docket for this rulemaking. The FTA also identified new supporting documentation, which includes, but is not limited to: The FTA documented CEs and Findings of No Significant Impact for past disaster-related projects, and for repair and reconstruction projects for transit facilities. The FTA also utilized comparative benchmarking, which provides support for the additional CE language by using the experience of other Federal agencies that conduct actions of similar nature, scope, and intensity. Although some of the actions covered by this added language might be covered by other CEs listed in sections 771.117 and 771.118, there is value in adding this CE language specifically for the FTA's Emergency Relief Program for ease of application when a practitioner is faced with emergency or disaster-related actions.

One commenter indicated that it was not clear why bridges are specifically mentioned, but other critical infrastructure such as tunnels and docks were not included. The commenter recommended wording to add tunnels and docks.

As discussed above, the term “transit facility” includes rail transit and components of ferry terminals and systems, such as docks, piers, platforms, pedestrian loading structures, and ticketing facilities. The Agencies have included “tunnels” in the list of transportation facilities covered by the CE language. Damaged tunnels can result in as much traffic and transit disruption as damaged bridges and therefore, deserve similar consideration. The types of tunnel-related actions necessitated by emergencies include dewatering to remove flood waters; repairs to electrical and mechanical systems; repairs to suspended ceilings and to ceiling or wall tiles; and, for highway tunnels, repairs to pavement. The environmental impacts from these types of actions would be similar for both highway and transit tunnels. Highway and transit tunnels are structurally and functionally similar, although design details and equipment are different because a tunnel is designed to address the operating needs of the mode(s) the tunnel serves. For example, the air vent system for a highway tunnel typically would be more extensive than for a tunnel serving only transit, but repairs performed on highway tunnel air vents within the right-of-way would not be expected to have significant environmental effects. In the Agencies' experience, the level of impacts for these actions is typically not significant because the actions are limited to the existing right-of-way and must substantially conform to the preexisting design, function, and location of the original facility.

The CEs would only cover the repair, reconstruction, retrofit, or replacement of an existing tunnel as long as it occurs within the existing right-of-way and in a manner that substantially conforms to the preexisting design, function, and location as the original. Including those conditions in the text of the CE ensures its applicability does not extend to construction of new tunnels. There may be situations when the nature of the damage to a tunnel (e.g., complete collapse) or the activity needed (e.g., substantial reconstruction or replacement) would warrant careful consideration of unusual circumstances. In these situations, the reviewer must determine if further environmental studies are needed to determine if the CE classification is proper or if a different class of NEPA review is warranted.

In response to the six questions noted below, seven State DOTs, three public interest groups, and one transit agency commented overall on the questions and proposal, stating that the Agencies needed to allow for flexible interpretation of the language in section 1315(a) of MAP-21. A specific concern with section 1315(a) was that the language could preclude use of the CE for projects that meet current design standards. The commenters encouraged an interpretation of this language to mean that the project meets the “present-day equivalent of the original design standards for the facility.” One commenter specifically noted that they have experienced frequent emergency projects in recent years with extreme weather events that “bring high rainfall and runoff rates, as well as tidal surges that lead to river and marsh flows over top of roads, bridges and culverts.” The commenter noted this has resulted in washed out pipe culverts and collapse of the roadways over the culverts. The commenter also reported experience with pavement and long-term road closures due to storm surge events on coastal roadways resulting in interruption of travel and evacuation routes. The commenter noted that in-kind replacements guarantee repeat failures and are a waste of taxpayer money. In addition, another commenter noted that the Federal Emergency Management Agency (FEMA) includes some of the proposed activities as a CE under 44 CFR 10.8(d)(2)(xv) (FEMA CE (xv)) for the“[r]epair, reconstruction, restoration, elevation, retrofitting, upgrading to current codes and standards, or replacement of any facility in a manner that substantially conforms to the preexisting design, function, and location.”

The Agencies agree with these comments. Upgrades to current codes and standards can avoid repetitive damage to transportation facilities and can also help protect public safety and health. Additionally, in certain situations, environmental conditions have changed to a degree that would warrant consideration of more protective measures than the existing codes and standards. Allowing these actions for damaged facilities is consistent with MAP-21's section 1315(b) requirement that the Secretary ensure the rule helps conserve Federal resources and protect public safety and health.

The Agencies have relied on their past experience as well as on benchmarking CEs covering similar activities, such as on the FEMA CE (xv) (44 CFR 10.8(d)(2(xv)), to modify the language originally proposed in 23 CFR 771.117(c)(9)(ii) of the NPRM for the final rule. The FEMA's CE is explicitly for “[r]epair, reconstruction, restoration, elevation, retrofitting, upgrading to current codes and standards, or replacement of any facility in a manner that substantially conforms to the preexisting design, function, and location.” The final rule modifies the proposed 23 CFR 771.117(c)(9)(ii) language and establishes 771.118(11)(ii) to read, “[t]he repair, reconstruction, restoration, retrofitting, or replacement of any road, highway, bridge, tunnel, or transit facility (such as a ferry dock or bus transfer station), including ancillary transportation facilities (such as pedestrian/bicycle paths and bike lanes), that is in operation or under construction when damaged and the action: (A) [o]ccurs within the existing right-of-way and in a manner that substantially conforms to the preexisting design, function, and location as the original (which may include upgrades to meet existing codes and standards as well as upgrades warranted to address conditions that have changed since the original construction); and [i]s commenced within a 2-year period beginning on the date of the declaration.” The Agencies' repair, reconstruction, restoration, retrofit, and replacement actions are similar to FEMA's actions of Federal financial assistance for transportation facilities. The Agencies' and FEMA's actions are typically carried out as permanent work that is eligible under a post-disaster assistance program. The only difference between a FEMA-funded and a FHWA- or FTA-funded repair, reconstruction, restoration, retrofit, or replacement of road, bridge, or transit facility is the funding source. The nature and typical level of impacts are similar, particularly when the actions substantially conform to the preexisting design, function, and location. In the Agencies' experience the level of impacts for these actions are typically not significant because the actions are limited to the existing right-of-way and must substantially conform to the preexisting design, function, and location of the original facility. This is consistent with FEMA's availability and use of FEMA CE (xv) and a review of FEMA's publicly available NEPA documents. A substantiation record summary based on benchmarking is provided in the docket for this rulemaking.

The term “reconstruction” means the demolition and rebuilding of a damaged facility, or part of a damaged facility, within the same footprint of the original. The term “retrofitting” refers to the addition of elements to a damaged facility to extend the life of the facility or to conform to a protective measure (e.g., earthquake retrofit, measure to reduce flood vulnerability, safety). The term “replacement” is meant to capture situations where a comparable facility is needed. These actions are covered by the new CE language as long as they occur within the existing right-of-way and in a manner that substantially conforms to the preexisting design, function, and location as the original.

The phrase “substantially conforms to the preexisting design, function, and location” is used to limit the amount of ground disturbance or resource impact. The phrase “substantially conforms” allows for some deviation from the original footprint, design, and function, but does not allow construction of a facility that is substantially different in nature. This addition goes beyond the language provided in section 1315 of MAP-21, but is consistent with the Agencies' practice in funding these actions. Work is restricted to the area within the existing right-of-way as an additional measure to limit the likelihood of potential impacts to protected resources. The phrase “which may include upgrades to meet existing codes and standards as well as upgrades warranted to address conditions that have changed since the original construction” allows for the restoration of the facility taking into account up-to-date codes and standards, but also allows for situations where restoration should accommodate changed conditions. For example, new flood risk information could be taken into account in the design of the transportation facility even when the community has not adopted a higher floodplain code. Another example is when the reconstruction of water crossing presents an opportunity to address fish passage concerns. In these situations conditions have changed since the original construction that may warrant a construction approach that goes beyond existing codes and standards. As previously noted, even if the new CE language applies, the Agencies must comply with the requirements of other environmental laws (e.g., section 106 under NHPA, section 404 of the CWA, 23 U.S.C. 138/49 U.S.C. 303 (section 4(f)), section 7 under ESA, bridge permits under the General Bridge Act of 1946) to address impacts in those unique situations where protected resources are present in the existing right-of-way.

The language in the final rule addresses the six additional activities proposed in the NPRM and comments received from the public on the inclusion of these activities. Below is a discussion of comments received on each of the proposed additional activities and how the final rule language reflects modifications to the proposal in response to these comments.

(1) Construction of engineering and design changes to a damaged facility to meet current design standards

One commenter expressed support for including this activity as a CE, noting that FEMA includes this activity as a CE under 44 CFR 10.8(d)(2)(xv), which allows for a CE for the “[r]epair, reconstruction, restoration, elevation, retrofitting, upgrading to current codes and standards, or replacement of any facility in a manner that substantially conforms to the preexisting design, function and location.” Others commented in support of this provision with one noting that “this provision would help to ensure that emergency repair projects can qualify for a CE when they are designed to meet current standards.”

The Agencies agree with these comments and modified the proposed language in the NPRM. The new sections 771.117(c)(9)(ii) and 771.118(c)(11)(ii) provide for the “repair, reconstruction, restoration, retrofitting, or replacement of any road, highway, bridge, tunnel, or transit facility (such as a ferry dock or bus transfer station), including ancillary transportation facilities (such as pedestrian/bicycle paths and bike lanes), that is in operation or under construction when damaged and the action: (A) [o]ccurs within the existing right-of-way and in a manner that substantially conforms to the preexisting design, function, and location as the original (which may include upgrades to meet existing codes and standards as well as upgrades warranted to address conditions that have changed since the original construction); and [i]s commenced within a 2-year period beginning on the date of the declaration.” A substantiation record summary which includes benchmarking FEMA's CE(xv), is provided in the docket for this rulemaking.

(2) Repair and reconstruction of adjacent transportation facilities within the right-of-way damaged by the emergency (such as bike paths or ancillary structures);

One commenter noted that “adjacent facilities often are affected by emergencies and are in need of emergency repairs at the same time primary facilities are repaired. Not repairing adjacent facilities may expose the primary facility to further damage and increase the risk of repeated failure.” Another commenter noted that many of the listed activities are already covered under 23 CFR 771.117(c) and expressed support for including this activity in the CE. One commenter recommended inclusion of “transportation facilities and infrastructure damaged by the emergency” in this provision.

The Agencies agree with these comments and have included ancillary transportation facilities in the final CE language. Ancillary transportation facilities, such as pedestrian/bicycle paths, bike lanes, and streetscape, contribute to the function of the road, highway, bridge, tunnel, or transit facility and are co-located to provide for the overall functioning of the transportation system network. Permanently repairing such adjacent facilities that previously existed or are under construction at the time of the incident and are co-located with the primary transportation facility ensures that already approved transportation facilities are fully replaced and provides for the complete functioning of the transportation network damaged by the incident. With this change, the CE language would cover the whole project when the restoration of the road, highway, bridge, tunnel, or transit facility includes repairing damaged ancillary facilities. In the Agencies' experience, the level of impacts of restoring damaged ancillary transportation facilities is typically not significant when they are limited to the existing right-of-way and must substantially conform to the preexisting design, function, and location of the original facility. This is consistent with FEMA's availability and use of FEMA CE (xv) and a review of FEMA's publicly available NEPA documents. A substantiation record summary based on benchmarking is provided in the docket for this rulemaking.

(3) Construction of betterments to the damaged facilities beyond those eligible under 23 U.S.C. 125;

Two commenters noted that inclusion of betterments would provide the opportunity to address scenarios where a culvert affected by an emergency is too small to handle the current debris flows. Inclusion of betterments would provide opportunities to install appropriately sized culverts and to armor bridge abutments as part of permanent repairs resulting from an emergency and help reduce long-term environmental impacts by reducing the frequency of catastrophic failure. One commenter stated that some betterments are minor activities, such as installation of riprap or raising the elevation of the roadway, and that these activities may add to the safety and life expectancy of the facility. One commenter noted that many betterments are already listed CEs. Additionally, other commenters expressed concerns about the lack of specificity as to what constituted betterments beyond those eligible under 23 U.S.C. 125.

The FHWA defines “betterments” as “[a]dded protective features, such as rebuilding of roadways at a higher elevation or the lengthening of bridges, or changes which modify the function or character of a highway facility from what existed prior to the disaster or catastrophic failure, such as additional lanes or added access control” (23 CFR 668.103). Under the FHWA Emergency Relief Program, betterments are eligible for Federal assistance if they are economically justified in accordance with 23 CFR 668.109(b)(6). Betterments may add protective features within the right-of-way such as rebuilding roadways at a higher elevation, installation of riprap, raising bridges, increasing the size of drainage structures, installation of seismic retrofits on bridges, and adding scour protection at bridges. Betterments may also add protective features that do not take place in the right-of-way such as relocating roadways or stabilizing slide areas. Another group of betterments involve the change of function or character of the transportation facility such as adding grade separations and improving access control. Upgrades to current codes and standards are eligible actions but are not considered to be “betterments.” The FTA does not currently use the term “betterments.”

The Agencies believe that they do not need to specifically call out “betterments” in the new CE language because it is not a term of art that is used in the FTA Emergency Relief Program. The Agencies agree that the new CE language can include some improvements on the original project or facility that was damaged, particularly if they help conserve Federal resources and protect public safety and health ( see MAP-21 sec. 1315(b)). Therefore, improvements that are related to the covered activities (i.e., repair, reconstruction, restoration, retrofitting, or replacement) and that meet the specified conditions (i.e., occur within the existing right-of-way and in a manner that substantially conforms to the preexisting design, function, and location as the original) are covered by the new CE language. For example, enlarging a culvert or armoring activities may be covered if they are needed for the upgrade of the facility to current codes, conditions, and standards.

One commenter specifically commented that betterments “may either deliberately or inadvertently facilitate increased traffic capacity and/or cause significant ground disturbance in previously undisturbed areas. These actions could significantly impact archaeological properties, historic facilities (such as the road or bridge needing repair), or a historic district that surrounds or is adjacent to the facility needing repair” and noted that compliance with 36 CFR part 800 typically is required for actions of this type. The commenter acknowledged that a CE does not equate to a waiver of section 106 requirements, but thought that confusion may result on the part of agencies responsible for fulfilling NEPA requirements on the project. The commenter recommended that the final rule clarify that the CE does not exempt the Agencies from other regulatory requirements and should “specify extraordinary circumstances as an integral element of the categorical exclusion to ensure that where appropriate, the presence of historic properties may require a more extensive environmental review under NEPA.”

The Agencies agree with the comment. The Agencies have clarified throughout the preamble of this final rule the requirement for consideration of unusual circumstances, which give rise to the potential for significant impacts on properties protected by 23 U.S.C. 138/49 U.S.C. 303 (section 4(f)) or section 106 of NHPA (sections 771.117(b)(3) and 771.118(b)(3)), when applying the CE to a proposed action. The Agencies also acknowledge the need for compliance with other environmental requirements in addition to NEPA. Finally, through the language in this final rule, the Agencies are applying this CE only to those improvements that are part of the reconstruction, retrofit, or replacement action when they occur within the existing right-of-way and substantially conform to the pre-existing design, function, and location as the original.

(4) Construction of engineering and design changes to a damaged facility for the purpose of seismic retrofitting;

One commenter suggested broadening this provision to allow for seismic retrofitting prior to a natural disaster or structure failure in addition to seismic retrofitting following an event that caused damage in order to extend the life of the facility. The commenter noted that seismic retrofitting to prevent damage might result in less damage to the environment than waiting to perform seismic retrofitting activities after damage has occurred. Another commenter expressed support for inclusion of seismic retrofitting activities in the CE.

Seismic retrofits of a damaged facility (i.e., road, highway, bridge, tunnel, transit facility, or ancillary transportation facility) would be covered by the new CE language. The new CE language specifically addresses the need for expediency in the restoration of transportation infrastructure damaged by qualifying events and to capitalize on the opportunity created by these events to incorporate resiliency principles in these restoration activities. Incorporation of resiliency principles would help conserve Federal resources by avoiding repetitive damage to these facilities as a result of similar disasters and to avoid significant damage from other potential hazards. The Agencies agree that improving surface transportation facilities before a disaster strikes is the ideal approach. Seismic retrofits prior to a disaster are outside the scope of section 1315(a) of MAP-21 and this regulation. However, the Agencies note that there are other CEs in 23 CFR part 771 that could be relied upon to make improvements to a transportation facility prior to a disaster such as 23 CFR 771.117(c)(12), (c)(8), (d)(1), (d)(2), and (d)(3) for FHWA actions and 23 CFR 771.118(c)(1), (c)(2), (c)(8), (d)(1), and (d)(6) for FTA actions.

(5) Construction of engineering and design changes to a damaged facility to deal with future extreme weather events and sea level rise;

One commenter expressed support for inclusion of this provision and provided an example of improvements made to a bridge, and processed as a CE, that allowed for improvements to the bridge as part of emergency repairs that increased the likelihood of the structure withstanding the stresses of future extreme weather events. The commenter also provided other examples of roadways that were improved to accommodate future storm events after being washed out. Another commenter expressed support of this provision and noted that recent severe storm events on the East Coast underscore the importance of providing flexibility to States to easily update infrastructure design to upgrade facilities after storm events to accommodate future storm events.

The Agencies agree that the new CE language should allow for some improvements on the original transportation facility based on the Agencies' experience with past actions, consideration of FEMA's experience with its CE (xv), and the determination that those types of improvements do not typically have a significant effect on the environment. Changes to a damaged facility that are related to the covered activities (i.e., repair, reconstruction, restoration, retrofitting, or replacement) and that meet the specified conditions (i.e., occur within the existing right-of-way and in a manner that substantially conforms to the preexisting design, function, and location as the original) are covered by the new CE language. The phrase “substantially conforms to the preexisting design, function, and location” is used to limit the amount of ground disturbance or resource impact. The phrase “substantially conforms” allows for some deviation from the original footprint, but does not allow construction of a facility that is substantially different in nature. Improvements that are not covered by the new CE language may be covered by other CEs in 23 CFR part 771 such as 23 CFR 771.117(c)(12), (c)(8), (d)(1), (d)(2), and (d)(3) for FHWA actions and 23 CFR 771.118(c)(1), (c)(2), (c)(8), (d)(1), and (d)(6) for FTA actions.

One commenter raised concerns about the potential impacts of these types of actions on the human environment. The commenter provided that, as an example, projects covered by this provision could involve potential relocation of infrastructure to accommodate sea level rise. One commenter proposed inclusion of additional text should the final rule include the six proposed additional activities: “(7) Modifications to the design or betterments to a damaged facility shall be a CE if such changes do not expand the footprint of the facility or have negative environmental impacts that would be greater than a reconstruction without such modifications or betterments.”

The Agencies agree that some actions under the proposed activity could raise environmental impact concerns, which is one of the reasons for consideration of unusual circumstances prior to applying the CE. In the Agencies' experience the level of impacts for these actions is normally not significant. The Agencies have created restrictions that limit the amount and level of environmental impacts, including impacts on the human environment. The phrase “substantially conforms to the preexisting design, function, and location” is used to limit the amount of ground disturbance or resource impact. The phrase “substantially conforms” allows for some deviation from the original footprint, but does not allow construction of a facility that is substantially different in nature. In addition, work is restricted to the area within the existing right-of-way as an additional measure to limit impacts to protected resources. The proposed actions must continue to meet the requirements of other environmental laws (e.g., section 106 under NHPA, section 404 of CWA, 23 U.S.C. 138/49 U.S.C. 303 (section 4(f)), section 7 under ESA, bridge permits under the General Bridge Act of 1946) when protected resources are present in the existing right-of-way. The additional safeguards provided under other applicable laws and regulations provide further assurance that the activities included in the new FHWA and FTA CEs do not have the potential to result in significant impacts on the human environment. This is consistent with FEMA's availability and use of FEMA CE (xv) and a review of FEMA's publicly available NEPA documents. A substantiation record summary based on benchmarking is provided in the docket for this rulemaking.

(6) Construction of other engineering and design changes to a damaged facility to address concerns such as safety and environmental impacts.

Two commenters supported allowing proactive approaches to natural hazards under the emergency repairs CE, like design and engineering changes to address earthquakes, extreme weather events, sea level rise, and other safety and environmental impacts. One commenter stated that including these activities in the CE will allow States and transit agencies to reduce the impact of future emergency events, rather than limiting the agencies' efforts merely to reacting to emergencies. One commenter expressed support for this provision noting the example modifications to a roadway following a washout event that provided the opportunity for the State DOT to modify the roadway revetment and protect sea turtle nesting habitat. One commenter noted that these activities should be expanded to include transit related infrastructure.

The final CE language in sections 771.117(c)(9)(ii) and 771.118(c)(11)(ii) includes engineering and design changes to address safety and environmental impacts as long as they are related to the covered activities (i.e., repair, reconstruction, restoration, retrofitting, or replacement) and meet the specified conditions (i.e., occur within the existing right-of-way and in a manner that substantially conforms to the preexisting design, function, and location as the original). As discussed above, the final language includes “transit facilities” in the infrastructure covered by the new CE language.

The Agencies derive explicit authority for this rulemaking action from 49 U.S.C. 322, which provides authority to “[a]n officer of the Department of Transportation [to] prescribe regulations to carry out the duties and powers of the officer.” That authority is delegated to the Agencies through 49 CFR 1.81(a)(3), which provides that the authority to prescribe regulations contained in 49 U.S.C. 322 is delegated to each Administrator “with respect to statutory provisions for which authority is delegated by other sections in [49 CFR Part 1].” Included in 49 CFR part 1, specifically 49 CFR 1.81(a)(5), is the delegation of authority with respect to NEPA, the statute implemented by this final rule. Moreover, the Council on Environmental Quality regulations that implement NEPA provide at 40 CFR 1500.6 that “[a]gencies shall review their policies, procedures, and regulations accordingly and revise them as necessary to insure full compliance with the purposes and provisions of [NEPA].”

The Agencies considered all comments received before the close of business on the comment closing date indicated above, and the comments are available for examination in the docket at the above address. The Agencies also considered comments received after the comment closing date and filed in the docket prior to this final rule.

The Agencies have determined that this rule be made effective immediately upon publication. The Administrative Procedure Act (5 U.S.C. 553(d)) requires that a rule be published 30 days prior to its effective date unless one of three exceptions applies. One of these exceptions is when the agency finds good cause for a shorter period. Here, the Agencies have determined that “good cause” exists for immediate effectiveness of this rule because this rule is expected to apply in many cases that address the immediate need to fund repairs of transit systems facilities and equipment damaged by Hurricane Sandy. Hurricane Sandy affected mid-Atlantic and northeastern States in October 2012, and particularly devastated transit operations in New Jersey and New York. These operations serve about 40 percent of all transit riders in the country. With Congress' passage of supplemental appropriations, Public Law 113-2, that fund FTA's Emergency Relief Program authorized at 49 U.S.C. 5324, immediate promulgation of the categorical exclusion for actions under that program will expand the FTA's ability to support much needed Hurricane Sandy recovery efforts and process these new funding requests in an expeditious manner, while still ensuring that the environment is protected. Thus, it is in the public interest for this final rule to have an immediate effective date. The Agencies acknowledge that although the justification for making this rule immediately effective stems from the need for transit recovery actions in response to Hurricane Sandy, the revisions contained within this final rule will be immediately applicable to a broader suite of the Agencies' funded and approved projects.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). The Agencies have determined that this action would not be a significant regulatory action under section 3(f) of Executive Order 12866 nor would it be significant within the meaning of Department of Transportation regulatory policies and procedures (44 FR 11032). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. It is anticipated that the economic impact of this rulemaking would be minimal. The changes that this rule proposes are requirements mandated by MAP-21 increase efficiencies in environmental review by making changes in the Agencies' environmental review procedures.

The activities this final rule adds to sections 771.117(c)(9) and 771.118(c)(11), which are described in section 1315(a), are inherently limited in their potential to cause significant environmental impacts because the use of the CEs is subject to the unusual circumstances provision in 23 CFR 771.117(b) and 23 CFR 771.118(b), respectively. These provisions require appropriate environmental studies, and may result in the reclassification of the NEPA evaluation of the project to an EA or EIS, if the Agencies determine that the proposal involves potentially significant or significant environmental impacts. These changes would not adversely affect, in any material way, any sector of the economy. In addition, these changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required.

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), the Agencies evaluated the effects of this final rule on small entities and anticipate that this action would not have a significant economic impact on a substantial number of small entities. The revision could streamline environmental review and thus would be less than any current impact on small business entities.

This final rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). This final rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $148.1 million or more in any one year (2 U.S.C. 1532). Further, in compliance with the Unfunded Mandates Reform Act of 1995, the agencies will evaluate any regulatory action that might be proposed in subsequent stages of the proceeding to assess the effects on State, local, and tribal governments and the private sector.

Executive Order 13132 requires agencies to assure meaningful and timely input by State and local officials in the development of regulatory policies that may 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. This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and the Agencies have determined that this action would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The Agencies have also determined that this action will not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions. The NPRM invited State and local governments with an interest in this rulemaking to comment on the effect that adoption of specific proposals may have on State or local governments. No comments on this issue were provided by State or local governments.

The Agencies have analyzed this action under Executive Order 13175, dated November 6, 2000, and believe that it would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Indian tribal governments; and would not preempt tribal law. Therefore, a tribal summary impact statement is not required.

The Agencies have analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agencies have determined that it is not a significant energy action under that order because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects under Executive Order 13211 is not required.

The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to these programs and were carried out in the development of this rule.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq. ), Federal agencies must obtain approval from the Office of Management and Budget for each collection of information they conduct, sponsor, or require through regulations. The Agencies determined that final rule does not contain collection of information requirements for the purposes of the PRA.

This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, and DOT Order 5610.2(a), 91 FR 27534, May 10, 2012, require DOT agencies to achieve environmental justice (EJ) as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority populations and low-income populations in the United States. The DOT Order requires DOT agencies to address compliance with the Executive Order and the DOT Order in all rulemaking activities. In addition, both Agencies have issued additional documents relating to administration of the Executive Order and the DOT Order. On June 14, 2012, the FHWA issued an update to its EJ order, FHWA Order 6640.23A, “FHWA Actions to Address Environmental Justice in Minority Populations and Low Income Populations” (available online at www.fhwa.dot.gov/legsregs/directives/orders/664023a.htm ). FTA also issued an update to its EJ policy, “FTA Policy Guidance for Federal Transit Recipients”, 77 FR 42077, July 17, 2012 (available online at www.fta.dot.gov/legislation_law/12349_14740.html ).

The Agencies have evaluated the CE under the Executive Order, the DOT Order, the FHWA Order, and the FTA Circular. The Agencies have determined that the designation of the new CE for emergency actions through this rulemaking will not cause disproportionately high and adverse effects on minority or low income populations. The rule simply adds a provision to the Agencies' NEPA procedures under which they may decide in the future that a project or program does not require the preparation of an EA or EIS. The rule itself has no potential for effects until it is applied to a proposed action requiring approval by the FHWA or FTA.

At the time the Agencies apply the CE established by this rulemaking, the Agencies have an independent obligation to conduct an evaluation of the proposed action under the applicable EJ orders and guidance. The adoption of this rule does not affect the scope or outcome of that EJ evaluation. Nor does the new rule affect the ability of affected populations to raise any concerns about potential EJ effects at the time the Agencies consider applying the new CE. Indeed, outreach to ensure the effective involvement of minority and low income populations in the environmental review process is a core aspect of the EJ orders and guidance. For these reasons, the Agencies also have determined no further EJ analysis is needed and no mitigation is required in connection with the designation of the CE for emergency actions.

The Agencies have analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The Agencies certify that this action would not concern an environmental risk to health or safety that may disproportionately affect children.

The Agencies do not anticipate that this action would affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

Agencies are required to adopt implementing procedures for NEPA that establish specific criteria for, and identification of, three classes of actions: Those that normally require preparation of an EIS; those that normally require preparation of an EA; and those that are categorically excluded from further NEPA review (40 CFR 1507.3(b)). The Council on Environmental Quality (CEQ) regulations do not direct agencies to prepare a NEPA analysis or document before establishing Agency procedures (such as this regulation) that supplement the CEQ regulations for implementing NEPA. The CEs are one part of those agency procedures, and therefore establishing CEs does not require preparation of a NEPA analysis or document. Agency NEPA procedures are generally procedural guidance to assist agencies in the fulfillment of agency responsibilities under NEPA, but are not the agency's final determination of what level of NEPA analysis is required for a particular proposed action. The requirements for establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The determination that establishing CEs does not require NEPA analysis and documentation was upheld in Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. Ill. 1999), aff'd, 230 F.3d 947, 954-55 (7th Cir. 2000).

A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

In consideration of the foregoing, the FHWA and FTA amend 23 CFR part 771 and 49 CFR part 622 as follows: