Authority for This Rulemaking

The FAA's authority to issue rules on aviation safety is found in title 49 of the United States Code. Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, part A, subpart III, sections 44701 and 44704. Under section 44701, the FAA is charged with prescribing regulations promoting safe flight of civil aircraft in air commerce by prescribing minimum standards required in the interest of safety for the design and performance of aircraft. Under section 44704, the Administrator issues type certificates for aircraft, aircraft engines, propellers, and specified appliances when the Administrator finds the product is properly designed and manufactured, performs properly, and meets the regulations and minimum standards prescribed under section 44701(a). This rulemaking is within the scope of these authorities because it promotes safety by updating the minimum prescribed standards used during the type certification process.

This final rule revises regulations in title 14 Code of Federal Regulations (14 CFR) part 27 (Airworthiness Standards: Normal Category Rotorcraft) and part 29 (Airworthiness Standards: Transport Category Rotorcraft) related to the certification of rotorcraft. These changes are necessary due to the extensive application of advancing technologies to rotorcraft. Current airworthiness standards do not adequately address increasing design complexity. To address these advances, the FAA has been issuing reoccurring special conditions, equivalent level of safety (ELOS) findings, and means of compliance (MOC) issue papers. This final rule addresses these areas by updating those standards that have been addressed by these special conditions, ELOS findings and MOC issue papers. Compliance with the regulatory changes implemented by this final rule will continue to be shown by the same testing, analysis, and inspections required by existing special conditions, ELOS findings and MOC issue papers. However, there will be a reduced administrative burden, to both the rotorcraft industry and the FAA, through the reduction or elimination of reoccurring special conditions, ELOS findings, and MOC issue papers.

This final rule updates parts 27 and 29 because the regulations in these parts were originally published in 1964 and past revisions to the airworthiness standards have not kept pace with advances in technology for rotorcraft. The FAA addresses these changes to technology by issuing reoccurring special conditions, ELOS findings, and MOC issue papers. These three processes are necessary to address new design features for which airworthiness standards are lacking, compliance with a rule cannot be achieved, or alternative methods of compliance are proposed. Special conditions are prescribed under 14 CFR 21.16 when the FAA finds the applicable airworthiness standards do not contain adequate or appropriate safety standards because of a novel or unusual design feature. The FAA issues ELOS findings under § 21.21(b)(1) where a design does not comply with the airworthiness standards, but compensating factors exist that provide an equivalent level of safety. MOC issue papers document compliance methodologies that fall outside existing guidance and policies.

The process of developing, drafting and finalizing these special conditions, ELOS findings, and MOC issue papers has an impact on both the FAA's and the applicants' resources. In addition, they impact applicants' schedules for obtaining FAA approval of their products. By updating the affected standards, many of these special conditions, ELOS findings, and MOC issue papers are now unnecessary, thus reducing the burden on both the FAA and industry.

In some cases, advancements in technology have rendered the regulations in parts 27 and 29 obsolete. This final rule revises those regulations. This final rule also updates a few of these rules to correct typographical errors.

As a result of incidents involving smoke and fire caused by failure of lithium batteries installed on Boeing 787 aircraft, the National Transportation Safety Board (NTSB) issued Safety Recommendations A-14-032 through 036 to the FAA on May 22, 2014. 1 The NTSB recommended the FAA develop abuse tests to simulate failures observed in the incidents investigated and to address findings in recent research (A-14-032), perform these tests on new aircraft for certain installations (A-14-033), develop guidance on acceptable methods to induce thermal runaway that reliably simulates battery failures (A-14-034), review methods of compliance used to certificate in-service lithium-ion battery aircraft installations to ensure that they adequately protect against adverse effects of a cell thermal runaway (A-14-035), and develop policy to establish a panel of technical experts to advise on compliance and best practices for safely installing new technology (A-14-036). This final rule incorporates these NTSB recommendations as they relate to rotorcraft into §§ 27.1353 and 29.1353.

On November 1, 2017, the FAA published a notice of proposed rulemaking (NPRM), “Normal and Transport Category Rotorcraft Certification” (82 FR 50583). In the NPRM, the FAA proposed changes necessary to address modern designs currently used in the rotorcraft industry and to reduce the burden on applicants for certification of new rotorcraft designs. The FAA proposed changes that would reduce or eliminate the need for certain special conditions that were often required to obtain certification of modern rotorcraft. The FAA also proposed to incorporate the provisions of ELOS findings and MOC issue papers that the FAA has made when approving certain design features.

The comment period closed on January 30, 2018.

The FAA received comments from 22 commenters. About half of the commenters were individuals. The remaining commenters included the NTSB, aviation manufacturers, industry groups and organizations, and foreign civil aviation authorities. One commenter, the Aircraft Electronics Association, supported the proposed rule without change. Most commenters were generally supportive of the proposal but some suggested changes to the proposed rule, as discussed in more detail later in this preamble. Some comments were beyond the scope of the proposal.

In the NPRM, the FAA proposed to reformat the paragraph designation in § 27.903(d) to be consistent with § 29.903(e). When § 27.903(d) was adopted, the paragraph designation of § 29.903(e) was not used even though the FAA intended the requirements to be identical. This designation led to confusion. This final rule eliminates the confusion by reformatting the paragraph designation in § 27.903(d) as proposed in the NPRM. The restart capability requirements of § 27.903(d) are not being changed in this rulemaking.

Bell Helicopter Textron, Inc. (Bell) and the General Aviation Manufacturers Association (GAMA) requested that part 27 appendix C be revised to remove the need for compliance with § 29.903(e), as the requirements are identical to proposed § 27.903(d). The FAA agrees and has removed the reference to § 29.903(e) from appendix C of part 27.

Current §§ 27.1305 and 29.1305 prescribe the specific required powerplant instruments for rotorcraft. The changes to these sections will allow for other means of compliance for certain powerplant instrument indicators. Additionally, for § 29.1305, the FAA will permit an optional feature to simulate one engine inoperative (OEI) conditions without damaging the engines. Rotorcraft with OEI Training Mode will require additional indications to differentiate the simulated OEI conditions from actual engine failure.

Airbus Helicopters requested that the FAA use different wording to describe a synthesized power indicator (SPI) for an instrument that provides a single indicator of engine performance, because presenting the information as a percentage of power to the nearest engine limit is only one of the methods of informing the flightcrew.

The commenter's request did not pertain to the proposed regulatory text but rather to industry examples in the NPRM preamble. However, the guidance associated with this final rule, Advisory Circulars (AC) 27-1B, Certification of Normal Category Rotorcraft and AC 29-2C, Certification of Transport Category Rotorcraft, identifies other concepts of showing proximity to engine limits other than as a percentage.

Airbus Helicopters also commented that certification of SPIs can be accomplished using the existing rules, and provided examples of two designs that have been approved by the European Aviation Safety Agency (EASA). These technologies could only be certificated in the past by the FAA through processes such as that necessary for an ELOS finding. A key purpose of this rulemaking is to reduce or eliminate the need for reoccurring special conditions, ELOS findings, and MOC issue papers. Therefore, the FAA has made no changes to the regulatory text in response to this comment.

Bell, GAMA, Transport Canada, and an individual requested the FAA expand the changes to §§ 27.1305 and 29.1305 to allow synthesized dual/triple tachometers. This requested change is beyond the scope of the proposal. A key purpose of this rulemaking is to reduce or eliminate the need for reoccurring special conditions, ELOS findings, and MOC issue papers. The FAA has not issued any of these documents for synthesized dual or triple tachometers.

EASA requested that the FAA change the reference in the proposed § 27.1305(o) from engine “torque” to engine “power” to be consistent with § 29.1305(a)(16) and allowing for other forms of power determination. The requirement in § 27.1305(o) to display engine torque to the pilot is contingent on the establishment of a torque limitation for the engine under § 27.1521(e). Therefore, the requested change would create an incompatibility between §§ 27.1305(o) and 27.1521(e). The FAA did not make any changes in response to this comment.

Transport Canada requested that the FAA correct a typographical error in the current § 27.1305(k)(2) and change “or” to “and.” Transport Canada noted that this correction would make the wording of § 27.1305(k)(2) identical to that section's part 29 counterpart, § 29.1305(a)(14)(ii). The FAA notes that the word “or” in § 27.1305(k)(2) is not a typographical error. The difference in wording between § 27.1305(k)(2) and § 29.1305(a)(14)(ii) has existed in the Federal Aviation Regulations from the promulgation of parts 27 and 29 to replace the Civil Air Regulations. 2 Moreover, the requested change would increase the regulatory requirement. The FAA did not make any changes in response to this comment.

Transport Canada also requested the FAA change the wording in proposed § 29.1305(a)(5) from “a means to indicate manifold pressure for each reciprocation engine, of the altitude type” to “a means to indicate manifold pressure for each altitude engine” to align the reference to this type of reciprocating engine with references to this same engine type used throughout part 27. The FAA agrees and has made this change. Additionally, this change provides consistency with § 27.1305(e) and with the identification of this type of engine elsewhere in part 29, and the term “altitude engine” is as type of engine that is a reciprocating engine.

Bell, GAMA, and an individual proposed new language for § 27.1305 that would permit OEI training mode capability. OEI Training Mode is a design feature for Category A training purposes. As explained by the FAA in the NPRM, the FAA did not propose these changes because part 27 Category A rotorcraft are approved under appendix C to part 27, which requires compliance with § 29.1305. The FAA did not make any changes in response to these comments.

Sections 27.1309 and 29.1309 require applicants to assess the effects of failures resulting from installed systems and equipment. The changes to § 27.1309 made by this final rule now address advances in technology and increases in performance of normal category rotorcraft that were not envisioned when the rule was originally promulgated, and eliminate the distinction between single-engine and multi-engine rotorcraft. The final rule broadens the scope of the previous performance-based requirement to include catastrophic failure conditions, thus eliminating the need for recurring special conditions. The final rule also more closely aligns with current industry practices and accommodates potential future changes in industry failure analysis techniques.

EASA requested the FAA reserve the paragraph numbering and allocate new paragraph numbers for the new regulatory text to avoid confusion between the proposed regulations and previous amendments. The FAA has determined that this requested change is impracticable as it would result in numerous regulatory paragraphs without content. Part 21 requires aviation manufacturers to be familiar with the airworthiness standards that are effective as the certification basis as of the date of their application for a type certificate. EASA also suggested designating the first paragraph under §§ 27.1309 and 29.1309 as “(a)” for clarity. The FAA did not add such a designation because the first two sentences of §§ 27.1309 and 29.1309 are generally applicable requirements.

Bell, GAMA, Robinson Helicopter Company (Robinson), and two individuals commented that the proposed changes to § 27.1309 would increase the amount of analysis necessary to show compliance for normal category rotorcraft. GAMA and Bell stated that the proposed changes would exceed what is required to address complex systems, eliminate the distinction between single and multi-engine rotorcraft, and fail to maintain sufficient distinction from § 29.1309. Bell and GAMA also expressed that an increase in certification burden would be imposed by the changes, and be likely to cause significant economic damage to the rotorcraft industry. Similarly, Robinson stated that the proposed changes to § 27.1309 would significantly increase the regulatory burden on normal category rotorcraft by removing the distinction between single and multi-engine. According to Robinson, this would require additional failure analysis by the applicant, and alerting means in the design, resulting in a significant increase in the cost and complexity of small helicopters. Bell and GAMA requested that the proposed § 27.1309 be replaced with the recently promulgated § 23.2510, while Robinson requested that none of the proposed changes be made to § 27.1309.

This rulemaking does not change the current industry standard and compliance means for non-critical and noncomplex (simple) systems and equipment installed in normal category rotorcraft. As explained in the NPRM, the distinction between single and multi-engines no longer reflects the level of complexity of the systems installed in rotorcraft. Most applicants have been using industry standard methods, such as SAE/ARP 4761, for conducting their system safety analyses to show compliance with § 27.1309. These methods require assessment at the aircraft level regardless of whether the proposed design is a single or multi-engine configuration. As stated in the NPRM, the applicant's method for conducting the failure analysis remains the same. The changes eliminate the need for special conditions by incorporating prior special condition requirements for catastrophic and hazardous failure conditions into the rule text. The changes also provide a means for the integration of new technology into part 27 rotorcraft. A means of compliance for noncomplex (simple) systems is already provided in the guidance material for normal and transport category rotorcraft. Finally, the request to incorporate § 23.2510, a performance-based regulation contingent on the use of consensus standards, is beyond the scope of the NPRM.

Bell, GAMA, and Robinson commented that the changes to § 27.1309 eliminate an applicant's use of the FAA's safety continuum policy for part 27 rotorcraft. The FAA clarifies that the safety continuum policy, Policy No. PS-ASW-27-15, dated June 30, 2017, 3 provides a tiered approach for compliance with § 27.1309, based upon the rotorcraft's weight, occupant capacity, and number and type of engines. This policy remains applicable as an option for any applicant. Under the policy, the certification rigor for simpler, less complex rotorcraft and systems differs from that which is necessary for more complex rotorcraft and systems to show compliance with § 27.1309.

EASA, Transport Canada, and an individual requested additional definition of the applicability of §§ 27.1309 and 29.1309. The commenters stated there will be confusion regarding whether to apply §§ 27.1309 and 29.1309 to systems outside of the current subpart. The FAA recognized the need to be clear about the applicability of the regulation; therefore, the proposed introductory text published in the NPRM for §§ 27.1309 and 29.1309 clarified that the rule would apply to any system or equipment whose failure has not been specifically addressed by another requirement in chapter I of title 14 of the CFR. The FAA has determined that the proposed regulatory text is adequately clear and has adopted it without change in this final rule.

EASA and Thales AVS France commented on the proposed ACs intended to provide acceptable means to comply with §§ 27.1309 and 29.1309. These commenters requested that the AC text providing that “the catastrophic failure condition should not result from a single failure” should be included in the regulation to resolve the inconsistency resulting from the inclusion of such language in the AC but not the regulatory text. The guidance materials provide analysis techniques for showing how an applicant can achieve “extremely improbable” in conjunction with a single failure. Single failures are not the only failure conditions that need to be addressed in order for the analysis to be complete. The FAA has clarified this in AC 27-1B and AC 29-2C, which provide acceptable means to comply with §§ 27.1309 and 29.1309.

Bell and GAMA requested the FAA not adopt the proposed requirement in §§ 27.1309(a) and 29.1309(a) for equipment, systems, and installations to be analyzed for hazards both individually and with regard to their integration with the rest of the aircraft. The commenters stated that the appropriate safety analysis methodologies for the equipment to be installed are already covered by paragraph (d) in §§ 27.1309 and 29.1309. The commenters stated the specific analysis is defined in guidance, and that including this statement in the regulation imposes a significant increase in the certification burden. This is incorrect. The requirement the commenters opposed for inclusion in paragraph (a) is already present in § 29.1309 and is included in special conditions for part 27 to certify proposed design features such as autopilot systems. In addition, this regulatory text does not dictate a specific analysis methodology to be used to show compliance; therefore, there is no increase in the certification burden.

GAMA, EASA, and Thales AVS France requested that the FAA change proposed §§ 27.1309(b) and 29.1309(b) to specify three levels of failure classification: catastrophic, hazardous, and major. In the NPRM, the FAA proposed a top level failure classification (catastrophic), a bottom level (minor), and any other level in between as long as the probability of the failure condition is inversely proportional to its consequences. EASA and GAMA stated that the proposed rule change would increase the regulatory burden by requiring the same analysis for minor failure conditions as for other, more severe failure conditions.

The FAA recognizes that proposed §§ 27.1309(b)(2) and 29.1309(b)(2) would have inadvertently raised the regulatory burden. That was not the FAA's intent, so in this final rule the FAA has revised §§ 27.1309(b)(2) and 29.1309(b)(2) to change the bottom level failure classification to major, in order to maintain the current regulatory requirement.

The final rule provides flexibility for future changes in industry standards and practices by allowing as many levels of failure classification as an applicant wishes to propose, as long as the probability of the failure condition is inversely proportional to its consequences.

GAMA and an individual requested that the FAA make the language in §§ 27.1309(c) and 29.1309(c) consistent with one another, in that the word “and” is missing from § 27.1309(c). As explained in the NPRM, the FAA intended for these two sections to be consistent and thus, has corrected this error in this final rule such that “and” is included in § 27.1309(c), consistent with current § 29.1309(c).

Bell and GAMA commented on the FAA proposal to remove §§ 29.1309(b)(2) and 29.1309(e), which are specific to Category A rotorcraft, stating that these provisions are necessary companions to § 29.903(b) engine systems isolation requirements. The commenters stated that without a specific regulation for Category A systems and equipment, § 29.903(b) becomes the specific regulation and applies rather than § 29.1309. The commenters provided an example that, in order to show compliance with § 29.903(b), it would be necessary to show physical isolation between left engine and right engine indication systems, instead of providing integrated displays with redundancy rather than isolation with an appropriate probability for failure conditions that might affect both engine's indications. The commenters are correct that § 29.903(b) is the specific regulation for Category A engine isolation requirements. However, the § 29.903(b) analysis is limited to systems required for engine operations. The commenters' application of this analysis to engine indication systems and displays, which do not affect engine operation, is misplaced. Section 29.1309 requires applicants to assess the effects of failures resulting from installed systems and equipment, such as engine indicators or displays that may be necessary for performing Category A operations. These requirements are unchanged by the proposals in the NPRM.

GAMA requested that proposed §§ 27.1309(d)(2) and 29.1309(d)(2), which require an analysis of “[t]he effect of multiple failures and latent failures,” be revised to preclude future interpretations of this paragraph as requiring consideration of multiple failures of unrelated functions or systems.

Although there are cases where the failures of unrelated functions or systems should be considered, the FAA shares the commenter's concern on the need to limit multiple failure analysis so that every combination of failures of unrelated functions or systems will not need to be considered. The FAA has changed the guidance material, AC 27-1B and AC 29-2C, to provide guidance to help applicants determine the depth of analysis necessary when considering multiple failures in complying with §§ 27.1309(d)(2) and 29.1309(d)(2).

GAMA and Transport Canada requested that for the analysis of crew warning cues in proposed §§ 27.1309(d)(4) and 29.1309(d)(4), the FAA correct the word “warning.” In the NPRM, the FAA proposed to replace the term “warning” with “annunciation,” but in §§ 27.1309(d)(4) and 29.1309(d)(4) the term “warning” remained in the proposed regulatory text. However, Transport Canada suggested that “warning” be replaced with “alerting.”

The FAA has determined that the term “alerting” is generally understood to include warnings and cautions that may include aural and visual types of cues to the pilot as appropriate. The FAA agrees that “alerting” more accurately conveys the requirement, and so has included it in this final rule.

An individual requested the FAA address the additional costs that may be incurred by U.S. applicants seeking validation of type-certificated products by EASA. The commenter states that the FAA's changes to §§ 27.1309 and 29.1309 compromise the rules' harmonization with EASA's rules.

The FAA's changes in this final rule incorporate the provisions of prior special conditions. EASA has validated several aircraft designs with the provisions of these special conditions. Therefore, the commenter's concern about additional costs during validation is not warranted.

In the NPRM, the FAA proposed to revise §§ 27.1329 and 29.1329 by combining the existing requirements for automatic pilot with those of §§ 27.1335 and 29.1335 for flight director systems into one rule for automatic pilot and flight guidance systems. EASA noted the FAA proposed to change the requirements in §§ 27.1329(a)(1) and 29.1329(a)(1) so that the system can be overpowered by “one pilot” to “the pilot” and in §§ 27.1329(a)(2) and 29.1329(a)(2) that the system can be disengaged by “each pilot” to “the pilot.” EASA stated that these changes reduce the level of safety, as the prior rules required that the effort of one pilot be enough to overpower the system. The effect of the proposed language as described by EASA was not the FAA's intent. Accordingly, the final rule refers to “one pilot,” in §§ 27.1329(a)(1) and 29.1329(a)(1) and “each pilot” in §§ 27.1329(a)(2) and 29.1329(a)(2) to be consistent with the existing regulatory requirement.

Transport Canada noted that the proposed rule appeared to include fly-by-wire in its definition of an automatic flight guidance and control system, and that manufacturers would not be able to comply with a requirement to completely disengage a fly-by-wire system. Transport Canada therefore requested the rule be changed so that a proposed design would only have to only disengage “any malfunctioning components of” the system.

The FAA did not intend for §§ 27.1329 and 29.1329 to cover flight control systems, including fly-by-wire. The section title and the introductory sentence have been changed in this final rule to remove references to “control.” Sections 27.1329(a)(2) and 29.1329(a)(2) have also been changed in this final rule so that applicants may design the system to either disengage the entire system, any malfunctioning component of the system, or both.

Bell, GAMA, Transport Canada, and Thales AVS France commented that the proposed §§ 27.1329(d) and 29.1329(d) would have eliminated the condition of “assuming that corrective action begins within a reasonable period of time.” The commenters stated that the FAA did not explain the elimination of this statement.

The existing text identified by commenters was inadvertently omitted from the NPRM, but is included in this final rule.

Current §  29.1333(a) requires isolating the pilot instrument system from any other operating systems because at the time the rule was promulgated, these systems were federated, and connecting the systems increased the likelihood that a fault in one system could cause a failure in the pilot instrument system. In the NPRM, the FAA proposed to revise §  29.1333(a) and section VIII(b)(5)(i) of appendix B to parts 27 and 29 limiting it to pneumatic systems, allowing for the use of current technology to display integrated information to the pilot.

Airbus Helicopters requested that the FAA change the word “system” to “parts” so that the requirement for physical independence only applies to the pneumatic parts of a system.

The FAA intended for only the pneumatic portion of the system to have physical independence. The FAA is not changing the proposed rule text as suggested by the commenter because the word “parts,” could be interpreted as a component as opposed to only the pneumatic portion of the system. This section of the rule is adopted as proposed in the NPRM.

The FAA's current regulations pertaining to batteries for rotorcraft include requirements specific to lead-acid batteries and nickel-cadmium batteries. In the NPRM, the FAA proposed performance-based requirements to accommodate any energy storage system. As a result, this final rule incorporates, for rotorcraft, the NTSB's recommendation that the FAA require aircraft manufacturers to demonstrate acceptable performance as part of the certification of any new aircraft design that incorporates the installation of lithium-ion batteries.

Bell and GAMA requested that the FAA modify proposed §§ 27.1353(a) and 29.1353(a) by removing the word “automatic” from the protective design features required for hazard mitigation, and expressed concern that a requirement that the features be “automatic” would increase certification requirements. Current §§ 27.1353(g) and 29.1353(c) contain a similar requirement for automatic features to monitor the battery system for nickel-cadmium batteries and prevent or mitigate an over temperature condition or battery failure. Special conditions issued by the FAA to certificate lithium battery installations have required automatic features to monitor the battery system and protect the aircraft. The proposed regulation does not change this requirement but rather incorporates it into a rule that accommodates any energy storage system. Some energy storage system hazards may occur too rapidly to be mitigated by pilot action; therefore, automatic monitoring and control is necessary which would not increase certification requirements.

In another comment, the NTSB suggested including more prescriptive language in §§ 27.1353(a) and 29.1353(a) to address all possible mitigation strategies. By using performance-based requirements, this final rule allows both current and future mitigation strategies. A prescriptive list of current acceptable mitigation strategies may not allow for future energy storage technologies. Accordingly, in this final rule, the FAA has adopted §§ 27.1353(a) and 29.1353(a) as proposed.

Bell and GAMA requested modifying proposed §§ 27.1353(b) and 29.1353(b), because they would have required venting as the means of limiting the accumulation of hazardous gases, fluids, and smoke. The FAA agrees with these comments and has adopted Bell and GAMA's recommended language in this final rule, in order to allow other types of hazard mitigation. The intent of the rule is to require that emissions not accumulate in hazardous (flammability, toxicity, visibility, etc.) quantities. Designs may accomplish this through venting or through other means.

Bell and GAMA commented that the term “damage” in §§ 27.1353(c) and 29.1353(c) is unclear and requested that the rule be revised from “must not damage surrounding structures, adjacent equipment, or systems necessary for continued safe flight and landing” to “must not result in any hazardous effect on structures, equipment, or systems necessary for continued safe flight and landing.” The language proposed in the NPRM was retained from the current rule and accurately captures the requirement. The commenter's suggested change would allow damage to occur undetected until it evolved into a hazardous condition, which was not the intent of the rule. Accordingly, in this final rule, the FAA has adopted §§ 27.1353(c) and 29.1353(c) as proposed.

The NTSB requested that proposed §§ 27.1353(d) and 29.1353(d) be revised to address the maximum amount of pressure from an energy storage system failure. The FAA agrees, since a rapid increase in pressure that exceeds the maximum amount for an energy storage system that is not contained may result in damage to surrounding systems or structure. Proposed §§ 27.1353(d) and 29.1353(d) have been revised consistent with the NTSB comment.

GAMA commented that the §§ 27.1353(e) and 29.1353(e) requirement to provide a means to monitor and inform the pilot of energy storage system health precludes other mitigating design features and may be unnecessary when effective containment measures are used. GAMA requested adding an alternative requirement to allow sufficient containment of the energy storage system.

GAMA's requested change to §§ 27.1353(e) and 29.1353(e) would invalidate the requirement that the pilot be notified of all critical system parameters. The pilot must know the health of the required energy storage system. The regulation does not preclude other mitigating strategies but these must include a means for the pilot to know the condition of all critical system parameters. Accordingly, in this final rule, the FAA has adopted §§ 27.1353(e) and 29.1353(e) as proposed.

Current § 27.1545 requires instruments to be marked with a green arc and red radial lines. In the NPRM, the FAA proposed to remove the restrictive requirement for some instrument markings to allow alternative means of compliance.

Bell and GAMA requested the rule specify when V NE must be displayed, allow provisions for variable V NE information, and clarify that a V NE caution range is not always applicable. These requested changes are beyond the scope of this rulemaking, which was to make the color and depiction of the airspeed indicator markings less prescriptive. In addition, the suggested wording would be more prescriptive, and therefore restrict traditional systems from being approved.

An individual requested the FAA change the term “yellow arc” in § 27.1545(b)(3) to “amber arc” to be consistent with § 27.1322(b). The requested change is beyond the scope of this rulemaking, which was to eliminate the need for reoccurring MOC issue papers for a lack of green arc in modern electronic displays. The FAA has not created any issue papers because of the requirement for a “yellow” arc.

The current regulation requires instruments to be marked with a green arc and red radial lines. In the NPRM, the FAA proposed to remove these requirements for some instrument markings.

EASA suggested the term “radial” in §§ 27.1549(a) and 29.1549(a) be replaced with “range,” similar to the proposed §§ 27.1549(d) and 29.1549(d). Sections 27.1549(a) and 29.1549(a) specify the requirement for marking of maximum and minimum safe operating limits. A red line is a defined limit. A range, in this context, would allow a level of ambiguity in the marking of the indicator. The FAA did not make any changes in response to the comment.

Transport Canada requested that the term “marked” be changed to “displayed” throughout §§ 27.1549 and 29.1549. The term “marked” is more consistent with the other instrument regulations for rotorcraft and airplanes. The FAA did not make any changes in response to the comment.

An individual requested the FAA change the term “yellow arc” in §§ 29.1549(b)(3) and 29.1549(c) to “amber arc” to be consistent with § 27.1322(b). The requested change is beyond the scope of this rulemaking, which was to eliminate the need for reoccurring MOC issue papers for a lack of green arc in modern electronic displays. The FAA has not created any issue papers because of the requirement for a “yellow” arc.

Bell and GAMA requested that the word “propeller” be changed to “rotor” in §§ 27.1549(d) and 29.1549(d). The word “propeller” comes from a prior rule amendment to parts 27 and 29 that was based on a part 25 rule. Although “propeller” is an appropriate term for airplanes, “rotor” is the more appropriate term for rotorcraft. The FAA agrees and has made the requested change.

One commenter noted the typographical omission of the word “and” between the proposed §§ 27.1549(d) and 27.1549(e). The FAA has corrected this error in this final rule by including “and” at the end of paragraph (d), consistent with the current rule.

The control marking regulations required marking the usable fuel capacity at the fuel quantity indicator. The intent of these regulations was to provide a continuous indication of usable fuel capacity at the fuel quantity indicator. Older, analog gauges used a placard to comply with this requirement. In the NPRM, the FAA proposed performance-based requirements to permit other means of informing the pilot of the usable fuel system capacity. However, this final rule requires that alternative methods address any lack of continuous display by ensuring the information is readily accessible to the pilot.

Bell and GAMA requested modifying proposed §§ 27.1555(c)(1) and 29.1555(c)(1) to require “a means to provide the usable fuel capacity to the pilot.” The intent of the language proposed in the NPRM was to keep the existing requirement for applicants that choose to follow that method, while providing an additional, less prescriptive method.

Similarly, EASA requested the FAA make the requirement more generic by eliminating the reference “to the pilot” within §§ 27.1555(c)(1)(i) and 29.1555(c)(1)(i), since this information is also used during maintenance and servicing. However, removing the requirement that the information be accessible to the pilot would not ensure that the pilot always has access to the data, which is the purpose of this rule.

GAMA also requested modifying §§ 27.1555(c)(2) and 29.1555(c)(2), which contains usable fuel capacity requirements for fuel systems with selector controls, to match the proposed language in §§ 27.1555(c)(1) and 29.1555(c)(1) for fuel systems with no selector controls. The changes in the NPRM were proposed to eliminate the issues associated with placarding a digital display in a modern glass cockpit. Placarding near or at the selector switches does not create these issues.

Additionally, GAMA requested that the FAA update §§ 27.1583(b)(3) and 29.1583(b)(3) to require that the flight manual include the usable fuel capacity information required per §§ 27.1555(c)(1) and 29.1555(c)(1) respectively. This requested change is not appropriate, because the requirement to add the capacity information into the flight manual is only necessary if it is not continuously displayed at the indicator. The commenter's requested language would require the information in the flight manual for all designs.

Airbus Helicopters requested that the FAA clarify whether “usable fuel capacity” refers to the actual remaining fuel or to the total usable capacity of the fuel system. The FAA notes that the term “usable fuel capacity” refers to the total usable capacity of the fuel system. The requirements for indicating the actual usable quantity are contained within §§ 27.1305, 27.1337, 29.1305, and 29.1337. In the NPRM, the FAA did not propose modifying the language or meaning of “usable fuel capacity.” Changing the meaning is outside the scope of this rulemaking. The proposed rule language provides an alternative, less prescriptive requirement allowing the applicant to relay the fuel system capacity to the crew by means other than a placard at the fuel quantity indicator.

In the NPRM preamble, the FAA stated that this rulemaking would update several rules that cause unnecessary burdens in cost and time to both the FAA and the rotorcraft industry. These changes are necessary due to the extensive application of advancing technologies to rotorcraft, which the airworthiness standards did not adequately address. The FAA proposed that, by updating the affected standards, many special conditions, ELOS findings, and MOC issue papers would become unnecessary, thus reducing the burden of cost and time on the FAA and industry.

GAMA requested rewording or deleting “reduced burden for the rotorcraft industry,” because showing compliance by the same testing analysis and inspections strongly implies there is no reduced burden. Additionally, GAMA requested that the FAA perform an analysis of the economic impact of the regulatory changes on small entities and provide access to the results of such analysis in the proposed rulemaking.

This rule updates parts 27 and 29 to address changes in technology and to include updated airworthiness standards. The FAA maintains that while compliance is shown by the same testing, analysis, and inspections, there will be savings to both the FAA and industry from updating the airworthiness standards. Updating the airworthiness standards reduces the number of reoccurring special conditions, ELOS findings, and MOC issue papers and the administration burden associated with processing one of the three documents.

Further information regarding final rule revisions that address comments on this issue is provided in discussions, C. Rotorcraft Equipment, Systems, and Installations (§§ 27.1309, 29.1309, and Appendix C to Part 27) and F. Energy Storage System (§§ 27.1353 and 29.1353). Additionally, the FAA has complied with the Regulatory Flexibility Act for this rulemaking and certified that a regulatory flexibility analysis is not required, as this rule will not have a significant economic impact on a substantial number of small entities.

One individual requested guidance for installing antennas on helicopters for both part 27 and 29. Two other individuals requested the FAA adopt rules to address accident rates, such as adding § 25.1302 to parts 27 and 29 and implementing Terrain Awareness and Warning Systems and Radar Altimeters. Another individual provided comments about minimum backup systems for VFR-only rotorcraft. The FAA appreciates the interest in aviation safety from these commenters; however, these comments were beyond the scope of this rulemaking effort.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

This final rule revises regulations in 14 CFR part 27 (Airworthiness Standards: Normal Category Rotorcraft) and part 29 (Airworthiness Standards: Transport Category Rotorcraft) related to the certification of rotorcraft. The changes are necessary because the airworthiness standards did not adequately address the increases in design complexity resulting from advancing technologies. As a result, many regulatory sections have been subject to reoccurring special conditions, ELOS findings, and MOC issue papers. This rulemaking addresses these items by updating the rules that cause unnecessary burdens in cost and time to both the rotorcraft industry and the FAA.

The FAA received comments on the NPRM that was published on November 1, 2017. The comments and the FAA's response to them are discussed in “III. Discussion of Public Comments and Final Rule,” in the preamble to this final rule. The FAA made changes to the proposed rule as a result of the public comments. However, the changes assisted the FAA in clarifying and updating the proposal to ensure there will not be additional costs from this rulemaking. These changes did not result in additional costs to industry or the FAA. The FAA expects this rule will not result in additional costs to industry since it incorporates current industry practice. In addition, the rule will provide small savings to industry and the FAA by avoiding the burden and costs associated with developing special conditions, ELOS findings and MOC issue papers. The rule affects U.S. manufacturers of normal and transport category rotorcraft plus any rotorcraft operator or owner who applies for a supplemental type certificate (STC). The remainder of this section provides discussion of the impact and savings of this final rule by topic.

Changes to these sections will allow for other means of compliance for certain powerplant instrument indicators. These means of compliance are voluntary and do not impose any new cost but could be cost relieving for applicants that choose to use them. Additionally, for § 29.1305, the FAA will permit an optional feature to simulate OEI conditions without damaging the engines. Rotorcraft with OEI Training Mode must have additional indications to differentiate the simulated OEI condition from actual engine failure. The OEI Training Mode is often installed in modern multi-engine rotorcraft. The FAA finds that this change will not result in additional costs to industry. The OEI Training Mode is optional and this change removes the need to issue special conditions for those manufacturers or modifiers including OEI training modes in their rotorcraft.

The FAA revises the failure analysis requirement for equipment, systems, and installations to reduce the need for special conditions. These changes more closely align with current industry practices and also accommodate future changes in industry failure analysis techniques. Additionally, the FAA eliminates the distinction between single-engine and multi-engine rotorcraft. This distinction is no longer relevant because current analysis tools for technologies and associated failure effects no longer consider the number of engines. This will reduce the need to issue recurring special conditions, potentially providing small savings for manufacturers and anybody who modifies the rotorcraft. As these are current industry practice, the FAA finds there are no additional costs associated with these changes.

This section is updated to be consistent with industry standards and practices for conducting failure analysis. The rule clarifies the requirement to perform a failure analysis and recognizes that the severity of failures can vary. Additionally, this section accommodates future changes in industry failure analysis techniques and reflects current certification practices. The rule allows for other options that will reduce the need to issue recurring special conditions, potentially providing small savings for manufacturers and applicants looking to modify a rotorcraft.

This rule standardizes terminology and combines the requirements for automatic pilot and flight director systems into one rule. Modern designs combine both automatic pilot and flight director systems and are now referred to as automatic pilot and flight guidance systems.

The change allows for the use of more modern integrated systems to monitor and display highly integrated information regarding the rotorcraft. This section does not impose additional costs as the updates reflect modern industry practices of integrating instrument systems.

The changes accommodate different energy storage systems. The regulation applies to lead acid, nickel-cadmium, and lithium batteries without imposing additional requirements. The changes will provide the flexibility necessary for the regulations to keep up with changes in technology.

The final rule provides flexibility for some instrument markings. Allowing for other markings will not result in additional mandatory costs and may be possibly cost relieving for manufacturers that elect to outfit the rotorcraft with different instrument markings.

The rule permits more than one method to inform the pilot of the usable fuel system capacity. However, alternative methods must address the lack of continuous display currently required. Changes to this section allow for more than one means of compliance at no additional costs. Offering alternative means of compliance allows industry to meet the requirement with the least costly option, which can be cost relieving.

There are no additional costs for changes to these sections as these are typographical or standardizing corrections.

Based on the discussion above, the FAA has determined that this final rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

This final rule amends the certification standards of normal and transport category rotorcraft to incorporate modern designs currently used in the rotorcraft industry. Currently, changes in technology are addressed by issuing reoccurring special conditions, ELOS findings, and MOC issue papers. These three processes are necessary to address new design features for which airworthiness standards are lacking, compliance with a rule cannot be achieved, or alternative methods of compliance are proposed. These special conditions, ELOS findings, and MOC issue papers impact FAA and industry resources as well as applicants' schedules for obtaining FAA approval of their products. By updating the affected standards with this final rule, many special conditions, ELOS findings, and MOC issue papers will become unnecessary, thus reducing both the FAA and industry's administration burden associated with processing one of the three documents.

As the rule reduces the administrative burden and does not include any new regulatory burden, the FAA expects this rule will not result in additional costs and may result in small cost savings for any small entity affected by this rulemaking action. If an agency determines that a rulemaking will not result in a significant economic impact on a substantial number of small entities, the head of the agency may so certify under section 605(b) of the RFA. Therefore, as provided in section 605(b), the head of the FAA certifies that this rulemaking will not result in a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

The FAA has assessed the potential effect of this final rule and determined that the potential benefits are available to both domestic and international firms, which would either have no effect or a positive effect on international trade.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155 million in lieu of $100 million.

This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there would be no new requirement for information collection associated with this final rule.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these final regulations.

FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6.f and involves no extraordinary circumstances.

The FAA has analyzed this rule under the principles and criteria of Executive Order 13132, Federalism. The agency has determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.

The FAA analyzed this rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it will not be a “significant energy action” under the executive order and will not be likely to have a significant adverse effect on the supply, distribution, or use of energy.

An electronic copy of a rulemaking document may be obtained from the internet by—

1. Searching the Federal eRulemaking Portal ( www.regulations.gov );

2. Visiting the FAA's Regulations and Policies web page at www.faa.gov/regulations_policies/; or

3. Accessing the Government Printing Office's web page at www.GovInfo.gov.

Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9680.

Comments received may be viewed by going to https://www.regulations.gov and following the online instructions to search the docket number for this action. Anyone is able to search the electronic form of all comments received into any of the FAA's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.).

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document, may contact its local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit https://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations (CFR) parts 27 and 29 as follows:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2020-21-19, Amendment 39-21292 (85 FR 69142, November 2, 2020) (AD 2020-21-19). AD 2020-21-19 applied to certain Dassault Aviation Model FALCON 900EX airplanes. AD 2020-21-19 required revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. The FAA issued AD 2020-21-19 to address reduced structural integrity of the airplane. AD 2020-21-19 specifies that accomplishing the actions required by paragraph (g) or (i) of that AD terminates the requirements of paragraph (g)(1) of AD 2010-26-05, Amendment 39-16544 (75 FR 79952, December 21, 2010) for Dassault Aviation Model FALCON 900EX airplanes, serial numbers 1 through 96 inclusive, and serial numbers 98 through 119 inclusive. This AD therefore continues to allow that terminating action.

The NPRM published in the Federal Register on November 10, 2022 (87 FR 67849). The NPRM was prompted by AD 2022-0144, dated July 11, 2022, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2022-0144) (referred to after this as the MCAI). The MCAI states that new or more restrictive airworthiness limitations have been developed.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1411.

In the NPRM, the FAA proposed to continue to require the actions in AD 2020-21-19 and to require revising the existing maintenance or inspection program, as applicable, to incorporate additional new or more restrictive airworthiness limitations, as specified in EASA AD 2022-0144.

The FAA is issuing this AD to address reduced structural integrity of the airplane.

The FAA received no comments on the NPRM or on the determination of the cost to the public.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

EASA AD 2022-0144 specifies new or more restrictive airworthiness limitations for airplane structures and safe life limits.

This AD also requires EASA AD 2020-0116, dated May 20, 2020, which the Director of the Federal Register approved for incorporation by reference as of December 7, 2020 (85 FR 69142, November 2, 2020).

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

The FAA estimates that this AD affects 88 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the total cost per operator for the retained actions from AD 2020-21-19 to be $7,650 (90 work-hours × $85 per work-hour).

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate.

The FAA estimates the total cost per operator for the new actions to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model BD-700-2A12 airplanes. The NPRM published in the Federal Register on June 21, 2022 (87 FR 36783). The NPRM was prompted by AD CF-2021-36, dated November 1, 2021, issued by Transport Canada, which is the aviation authority for Canada (referred to after this as the MCAI). The MCAI states that during production activities, a lateral offset was observed on the HUD of several airplanes between the SVS and actual runway. An investigation determined the cause of the offset to be mechanical misalignment of the HUD during manufacturing and assembly. This offset, if not corrected, will create an incorrect airplane reference display on the HUD, which could lead to excessive deviation during landing. This could particularly affect SAL or EFVS operations.

In the NPRM, the FAA proposed to require revising the existing AFM to prohibit SAL and EFVS operations, and calibrating the HUD. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-0684.

The FAA received a comment from Executive Jet Management, Inc. (EJM). The following presents the comment received on the NPRM and the FAA's response.

EJM noted that ADs for Bombardier airplanes often involve approval for alternative methods of compliance (AMOCs) because the required AFMs or other service information becomes outdated before the AD becomes effective. Because of the increasing number of Bombardier ADs that require these AMOCs, EJM expressed concern over the burden associated with the AMOC process. EJM recognized that the FAA cannot allow the future use of service information that is not available when the AD is published. EJM noted that an AD issued by the European Union Aviation Safety Agency (EASA) typically states that the use of later-approved revisions of the required service information is acceptable for compliance, and that the corresponding FAA AD refers to that EASA AD for the requirements. EJM requested a similar process for ADs for Bombardier airplanes, adding that this process would streamline their workload and enhance safety.

The FAA partially agrees with the request. The FAA agrees with referencing the latest AFM revisions in this AD. Certain sections of Bombardier Global 7500 AFM, Publication No. CSP 700-7000-1 cited in the NPRM have been revised, as described under “Related Service Information under 1 CFR part 51” in this final rule. The AFM sections are modified to revise calculations for certain performance data, and therefore do not add any additional work to the proposed requirements of the NPRM. The FAA revised paragraphs (g)(1) through (3) of this AD to require the revised service information. This AD also provides credit for use of the documents that were identified in the NPRM, as specified in revised paragraph (i) of this AD.

The FAA disagrees with adding a statement that allows using later-approved revisions of the AFM sections specified in the Related Service Information under 1 CFR part 51 section of this AD, as the FAA would need to determine their effect to the AD. Further, the FAA is required by Office of the Federal Register (OFR) regulations for approval of materials incorporated by reference, as specified in 1 CFR 51.1(f), to either publish the service document contents as part of the actual AD language; or submit the service document to the OFR for approval as referenced material, in which case the FAA may only refer to such material in the text of an AD. However, it is not necessary to include a statement in this final rule that allows the use of later-approved revisions of the AFM. Paragraph (g) of this AD requires revising the existing AFM to “include the information in” the specified sections of the AFM. As long as the information included in the AFM is identical to “the information in” those AFM sections, operators may use means other than the specified AFM revisions to comply with the requirement.

Regarding the IBR the MCAI process, the FAA must have permission from the design approval holder to post in the AD docket the service information required for compliance with the MCAI. At this time, the FAA has not received Bombardier's permission for the “IBR the MCAI” process. Without this permission, the FAA cannot IBR the MCAI.

The FAA has revised paragraph (h) of this AD to allow the HUD calibration to be done using Bombardier Service Bulletin 700-34-7521, Revision 03, dated July 27, 2021, or Bombardier Service Bulletin 700-34-7521, Revision 04, dated December 6, 2021; and Bombardier Service Bulletin 700-34-7523, Revision 01, dated December 8, 2021; as applicable. This change more closely reflects the revisions specified in paragraph B. of the MCAI. The FAA has also removed paragraph (i)(1)(iv) of this AD (paragraph (i)(4) of the proposed AD), and reidentified the subsequent paragraph accordingly, because Bombardier Service Bulletin 700-34-7521, Revision 03, dated July 27, 2021, is now specified in paragraph (h) of this AD. Further, paragraphs (i)(1)(i) through (iv) have been clarified to specify which documents are and are not incorporated by reference in this AD.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comment received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

Bombardier has issued the following documents to prohibit SAL and EFVS operations until the HUD has been calibrated.

• Section 6., Service Bulletins, Chapter 1—Introduction, Bombardier Global 7500 AFM, Publication No. CSP 700-7000-1, Revision 18, dated August 18, 2022.

• Supplement 7—Enhanced Flight Vision System (EFVS) Operations, Chapter 7—Supplements, Bombardier Global 7500 AFM, Publication No. CSP 700-7000-1, Revision 18, dated August 18, 2022.

• Supplement 20—Steep Approaches with Published Glidepath Angles from 4.5 to 5.5 Degrees, Chapter 7—Supplements, Bombardier Global 7500 AFM, Publication No. CSP 700-7000-1, Revision 18, dated August 18, 2022.

Bombardier has issued the following documents, which specify procedures for calibrating the HUD (and second HUD if installed). The procedures include an inspection of the HUD mounting brackets and sill beams for damage and contamination ( e.g., drill shavings and adhesive) of the mating surfaces and injection holes, an inspection for voids in the structural adhesive, and applicable corrective actions. Corrective actions include replacing damaged brackets and backfilling voids with structural adhesive. These documents are distinct since they apply to different airplane configurations.

• Bombardier Service Bulletin 700-34-7521, Revision 03, dated July 27, 2021.

• Bombardier Service Bulletin 700-34-7521, Revision 04, dated December 6, 2021.

• Bombardier Service Bulletin 700-34-7523, Revision 01, dated December 8, 2021.

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

Earlier revisions of Bombardier Service Bulletins 700-34-7521 and 700-34-7523 included a typographical error on the metric values on the “External Target Board” table. This error was corrected in Bombardier Service Bulletin 700-34-7521, Revision 03, dated July 27, 2021; Bombardier Service Bulletin 700-34-7521, Revision 04, dated December 6, 2021; and Bombardier Service Bulletin 700-34-7523, Revision 01, dated December 8, 2021. This error is further described in the Retroactive Action section in these service bulletins. The FAA has determined that the earlier revisions are acceptable for compliance with the requirements of this AD under certain conditions in their entirety if imperial values were used. However, if the metric values specified in the earlier revisions were used, the HUD calibration is not considered completed for the purposes of Supplement 7—Enhanced Flight Vision System (EFVS) Operations, and Supplement 20—Steep Approaches with Published Glidepath Angles from 4.5 to 5.5 Degrees, of Chapter 7—Supplements, of the Bombardier Global 7500 AFM, Publication No. CSP 700-7000-1, until retroactive actions are also done as specified in paragraph (i) of this AD.

The FAA estimates that this AD affects 40 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates that replacement brackets would cost up to $1,200 (per HUD) if required for any on-condition corrective actions in this AD. The FAA has received no definitive data on which to base the work-hour estimates for this replacement. The FAA has no way of determining the number of airplanes that might need this on-condition action.

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 99-25-11, Amendment 39-11454 (64 FR 72522, December 28, 1999) (AD 99-25-11). AD 99-25-11 applied to certain BAE Systems (Operations) Limited Model BAe 146 and Avro 146-RJ series airplanes. AD 99-25-11 required repetitive eddy current inspections for cracks along the face of the retraction attachment boss in the NLG sidewall; and corrective action, if necessary. AD 99-25-11 was prompted by issuance of MCAI by a foreign civil aviation authority. The FAA issued AD 99-25-11 to address cracking along the face of the retraction attachment boss in the NLG sidewall, which could result in premature extension of the NLG or result in depressurization of the airplane.

FAA AD 99-25-11 corresponds to British AD 015-10-98.

The NPRM published in the Federal Register on October 31, 2022 (87 FR 65541). The NPRM was prompted by AD G-2021-0016R1, dated February 18, 2022 (U.K. CAA AD G-2021-0016R1) (also referred as the MCAI), issued by the Civil Aviation Authority, which is the aviation authority for the United Kingdom. U.K. CAA AD G-2021-0016R1 superseded European Union Aviation Safety Agency (EASA) AD 2007-0305, dated December 20, 2007, which superseded British AD 015-10-98. The FAA did not issue an AD corresponding to EASA AD 2007-0305. The MCAI states that evidence of cracking was found on several in-service airplanes in the bore and along the face of the retraction jack attachment boss on the left-hand NLG sidewall. Undetected cracking of the NLG sidewall could lead to explosive decompression of the fuselage near to the flightcrew (since the NLG sidewall forms part of the nose fuselage pressure shell), leading to significant structural damage to the airframe and/or incapacitation of the flightcrew.

The effectivity of each revision of Inspection Service Bulletin ISB.53-152 before Revision 8 was limited to airplanes that were not modified by torque tightening modification HCM01641A in production. BAE Systems (Operations) Limited has received reports of two airplanes with cracks at the NLG retraction jack attachment boss; those airplanes were post-modification HCM01641A and as such were not subject to the requirements of FAA AD 99-25-11. As a result of new findings and further analysis, BAE Systems (Operations) Limited issued Revision 8 of ISB.53-152, dated February 19, 2018, which extends the effectivity to all BAe 146 and Avro 146-RJ airplanes, except for airplanes post-modification HCM20011A, HCM20012A, HCM20013A, HCM20313A, HCM20314A, or HMC20315A.

Revisions prior to Revision 8 of ISB.53-152 included provisions for continued operation with certain crack conditions, which was also allowed in FAA AD 99-25-11 if approved as specified in paragraph (h)(1) of this AD. The U.K. CAA and the FAA have determined that continued operation with known cracks is not acceptable. Therefore, this AD does not allow flight with cracks.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1313.

In the NPRM, the FAA proposed to continue to require the actions in AD 99-25-11 and expand the applicability.

The FAA received no comments on the NPRM or on the determination of the costs.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-152, Revision 8, dated February 19, 2018. This service information describes procedures for repetitive eddy current inspections for cracking in the bore and along the face of the retraction attachment boss in the left-hand NLG sidewall, and repair or replacement of a cracked sidewall.

The FAA also reviewed British Aerospace Service Bulletin SB.53-152, dated October 8, 1998, which the Director of the Federal Register approved for incorporation by reference as of February 1, 2000 (64 FR 72522, December 28, 1999).

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

The FAA estimates that this AD affects 20 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has received no definitive data on which to base the 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.

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

The FAA has 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) Will not affect intrastate aviation in Alaska, and

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it establishes airspace in Union Springs, AL, to support IFR operations in the area.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2022-1262 in the Federal Register (87 FR 65180, October 28, 2022) to establish Class E airspace extending upward from 700 feet above the surface at Franklin Field Airport, Union Springs, AL, to accommodate RNAV GPS standard instrument approach procedures (SIAPs) serving this airport.

Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received supporting this action.

Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. These updates will be published subsequently in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic routes, and reporting points.

The FAA is amending 14 CFR part 71 by establishing Class E airspace extending upward from 700 feet above the surface within an 8.1-mile radius of Franklin Field Airport, Union Springs, AL, to accommodate RNAV GPS standard instrument approach procedures (SIAPs) serving this airport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a.

This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant the preparation of an environmental assessment.

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it updates the using agency listed for restricted areas R-2204 Oliktok Point High, AK, and R-2204 Oliktok Point Low, AK.

The U.S. Department of Energy (DOE) requested that the Federal Aviation Administration amend the descriptions of restricted areas R-2204 Oliktok Point High, AK, and R-2204 Oliktok Point Low, AK, by changing the using agency listed for each from “Department of Energy, Office of Science, Washington, DC” to “Department of Energy, Arctic Energy Office, Washington, DC”. The request is the result of the DOE re-establishing the Arctic Energy Office with an office in Fairbanks, AK, and determining it to be in the best interest of the DOE that the Arctic Energy Office undertake the using agency responsibilities for the R-2204 Oliktok Point High and R-2204 Oliktok Point Low restricted areas. Both DOE offices, the Office of Science, Biological and Environmental Research and the Arctic Energy Office, support the using agency change.

This action amends 14 CFR part 73 by changing the using agency name listed for restricted areas R-2204 Oliktok Point High and R-2204 Oliktok Point Low, AK, from “Department of Energy, Office of Science, Washington DC” to “Department of Energy, Arctic Energy Office, Washington, DC”. This action is necessary in order to reflect the current organization tasked with using agency responsibilities for the restricted areas.

This is an administrative change that does not affect the boundaries, designated altitudes, times of designation, or activities conducted within restricted areas R-2204 Oliktok Point High and R-2204 Oliktok Point Low, AK; therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

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

The FAA has determined that this action of amending the using agency information for R-2204 Oliktok Point High and R-2204 Oliktok Point Low, AK, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points), and paragraph 5-6.5d, which categorically excludes from further environmental impact review the modification of the technical description of special use airspace (SUA) that does not alter the dimensions, altitudes, or times of designation of the airspace (such as changes in designation of the controlling or using agency, or correction of typographical errors). This airspace action is an administrative change to the description of restricted areas R-2204 Oliktok Point High and R-2204 Oliktok Point Low, AK, to update the using agency name. It does not alter the restricted area dimensions, designated altitudes, times of designation, or use of the airspace. Therefore, this airspace action is not expected to result in any significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, this action has been reviewed for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows:

In September 2020, the Commodity Futures Trading Commission (Commission) adopted final rules to revise, among other things, part 45 of its regulations on swap data recordkeeping and reporting requirements for swap data repositories, derivatives clearing organizations, swap execution facilities, designated contract markets, swap dealers (SDs), major swap participants (MSPs), and swap counterparties that are neither SDs nor MSPs. 1 Part 23 of the Commission's regulations contains multiple cross-references to, and relies on terms defined in, part 45 of the Commission's regulations. The Commission has identified the following errors in part 23 relating to part 45 as well as certain other similar errors, and is correcting them as shown in the regulatory text in this Federal Register document.

In accordance with the Administrative Procedure Act, the Commission has good cause to find that it is unnecessary to provide the public prior notice and an opportunity to comment on these technical amendments. 2 As more fully described below, the amendments make only typographical and clerical changes that are necessary to avoid confusion or mistakes. There is no substantive change on which the public could comment. As the revisions to the Commission's regulations in this rulemaking are only technical in nature and will not cause any party to undertake any new obligations, the Commission has determined to publish this rulemaking without prior notice and comment. Similarly, because the Commission is not promulgating, changing, or deleting any regulatory requirement, consideration of costs and benefits and consideration of the public interest to be protected by the antitrust laws are not required by the Commodity Exchange Act. 3 Finally, these correcting amendments do not implicate any requirements under the Paperwork Reduction Act of 1995. 4

Commission regulation § 23.202 (Daily trading records)  5 erroneously cross-references Commission regulations § 45.4(a), (b), and (c). The Commission is correcting the cross-references to Commission regulations §§ 45.5, 45.6, and 45.7, respectively.

Commission regulation § 23.205(a) (Real-time public reporting of swap transaction and pricing data)  6 erroneously cross-references the real-time public “recording” requirements in part 43 of the Commission's regulations. The Commission is correcting the reference to replace the word “recording” with the word “reporting.”

The Commission is replacing the term unique swap identifier (USI) with the term unique transaction identifier (UTI). The Commission previously updated part 45 to make this change, 7 but did not make the necessary conforming changes in part 23 where it is referenced. 8

The Commission is updating and conforming its references to a counterparty's identifier to clarify that a counterparty must provide its legal entity identifier (LEI) or, when applicable, an alternate identifier. 9 Part 23 does not consistently use the term LEI (in one instance using the term unique counterparty identifier instead), 10 and does not clearly address the full set of circumstances when a counterparty may use an alternate identifier in lieu of an LEI, but rather only provides for the use of an alternate identifier where the counterparty is a natural person. 11

The Commission is updating and conforming its references to a swap's unique product identifier (UPI) to clarify that the swap trading record shall include the UPI and description using the product classification system as prescribed in part 45, when applicable. 12 Commission regulation § 23.202(a)(2)(vii) does not address the possibility that a swap may not have a UPI. 13

The Commission is replacing the example floating rate in Exhibit C of part 23, subpart I, appendix 1, to use “Fed Funds.” Exhibit C currently uses the outdated “USD-Libor-BBA” as an example for the field labeled Floating rate index name/rate period. 14

For the reasons stated in the preamble, 17 CFR part 23 is corrected by making the following correcting amendments:

I. Background

The Criminal Antitrust Anti-Retaliation Act (CAARA or the Act), Public Law 116-257, 134 Stat. 1147, was enacted on December 23, 2020. Section 2 of the Act, codified at 15 U.S.C. 7a-3 and referred to throughout these interim final rules as CAARA, prohibits retaliation by an employer, defined in the statute as “a person, or any officer, employee, contractor, subcontractor, or agent of such person,” against a “covered individual,” defined in the statute as “an employee, contractor, subcontractor or agent of an employer,” in the terms and conditions of employment in reprisal for the individual having engaged in protected activity. Protected activity under CAARA includes any lawful act done by an individual to report certain information to the Federal Government, the individual's supervisor, or a person working for the employer who has the authority to investigate, discover, or terminate misconduct. The information must relate to: a violation (or conduct the individual reasonably believes is a violation) of section 1 or 3 of the Sherman Act (15 U.S.C. 1 or 3), or a violation (or conduct the individual reasonably believes is a violation) of another criminal law committed in conjunction with a potential violation of section 1 or 3 of the Sherman Act, or in conjunction with an investigation by the Department of Justice of a potential violation of section 1 or 3 of the Sherman Act. The Act also protects individuals from retaliation for causing to be filed, testifying in, participating in, or otherwise assisting in a Federal Government investigation or proceeding relating to a violation (or conduct the individual reasonably believes is a violation) of section 1 or 3 of the Sherman Act, or a violation (or conduct the individual reasonably believes is a violation) of another criminal law committed in conjunction with a potential violation of section 1 or 3 of the Sherman Act, or in conjunction with an investigation by the Department of Justice of a potential violation of section 1 or 3 of the Sherman Acts. The Federal Government is defined by the statute as a Federal regulatory or law enforcement agency, or any Member of Congress or committee of Congress. These interim final rules establish procedures for the handling of retaliation complaints under the Act.

CAARA incorporates the rules, procedures, and burdens of proof set forth in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121(b), with some exceptions. Under CAARA, a person who believes that they have been discharged or otherwise retaliated against in violation of the Act (complainant) may file a complaint with the Secretary of Labor (Secretary) within 180 days of the alleged retaliation. Upon receipt of the complaint, the Secretary must provide written notice to the person or persons named in the complaint alleged to have violated the Act (respondent) and to the complainant's employer (which in most cases will be the respondent) of the filing of the complaint, the allegations contained in the complaint, the substance of the evidence supporting the complaint, and the rights afforded the respondent throughout the investigation. The Secretary must then conduct an investigation, within 60 days of receipt of the complaint, after affording the respondent an opportunity to submit a written response and to meet with the investigator to present statements from witnesses.

The Act provides that the Secretary may conduct an investigation only if the complainant has made a prima facie showing that the protected activity was a contributing factor in the adverse action alleged in the complaint and the respondent has not demonstrated, through clear and convincing evidence, that it would have taken the same adverse action in the absence of that activity. OSHA interprets the prima facie case requirement as allowing the complainant to meet this burden through the information they provide in their complaint as supplemented by interviews of the complainant.

After investigating a complaint, the Secretary will issue written findings. If, as a result of the investigation, the Secretary finds there is reasonable cause to believe that retaliation has occurred, the Secretary must notify the complainant and respondent of those findings, and issue a preliminary order providing all relief necessary to make the complainant whole, including, where appropriate: reinstatement with the same seniority status that the complainant would have had but for the retaliation; back pay, with interest; and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees.

The complainant and the respondent then have 30 days after the date of receipt of the Secretary's notification in which to file objections to the findings and/or preliminary order and request a hearing before an Administrative Law Judge (ALJ). The filing of objections will not stay any reinstatement order. However, under OSHA's regulations, the filing of objections will stay any other remedy in the preliminary order. If a hearing before an ALJ is not requested within 30 days, the preliminary order becomes final and is not subject to judicial review.

If a hearing is held, the Act requires the hearing be conducted “expeditiously.” The Secretary then has 120 days after the conclusion of any hearing to issue a final order, which may provide appropriate relief or deny the complaint. Until the Secretary's final order is issued, the Secretary, the complainant, and the respondent may enter into a settlement agreement that terminates the proceeding. Where the Secretary has determined that a violation has occurred, the Secretary will order all relief necessary to make the complainant whole, including, where appropriate, reinstatement with the same seniority status that the complainant would have had, but for the retaliation; back pay, with interest; and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees. The Secretary also may award a prevailing employer reasonable attorney fees, not exceeding $1,000, if the Secretary finds that the complaint is frivolous or has been brought in bad faith. Within 60 days of the issuance of the final order, any person adversely affected or aggrieved by the Secretary's final order may file an appeal with the United States Court of Appeals for the circuit in which the violation allegedly occurred or the circuit where the complainant resided on the date of the violation.

The Act permits the covered individual to bring an action for de novo review of a CAARA retaliation claim in the appropriate United States district court in the event that the Secretary has not issued a final decision within 180 days after the filing of the complaint, and there is no showing that such delay is due to the bad faith of the complainant. The provision provides that the court will have jurisdiction over the action without regard to the amount in controversy. Finally, nothing in the CAARA anti-retaliation provision shall be deemed to diminish the rights, privileges, or remedies of any covered individual under any Federal or State law, or under any collective bargaining agreement.

The regulatory provisions in this part have been written and organized to be consistent with other whistleblower regulations promulgated by OSHA to the extent possible within the bounds of the statutory language of the Act. Responsibility for receiving and investigating complaints under the Act has been delegated to the Assistant Secretary for Occupational Safety and Health (Assistant Secretary) pursuant to Secretary of Labor's Order No. 08-2020 (May 15, 2020), 85 FR 58393 (September 18, 2020). Hearings on determinations by the Assistant Secretary are conducted by the Office of Administrative Law Judges, and appeals from decisions by ALJs are decided by the ARB. See Secretary of Labor's Order 01-2020 (Feb. 21, 2020), 85 FR 13186-01 (Mar. 6, 2020) (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board).

This section describes the purpose of the regulations implementing the anti-retaliation provisions of CAARA and provides an overview of the procedures covered by these regulations.

This section includes definitions of certain terms used in CAARA and this rule.

One term defined in § 1991.101 is “antitrust laws,” which CAARA defines as meaning section 1 or 3 of the Sherman Act (15 U.S.C. 1 or 3). See 15 U.S.C. 7a-3(a)(3)(A).

Another term defined in the statute is “covered individual,” which means an employee, contractor, subcontractor, or agent of an employer. See 15 U.S.C. 7a-3(a)(3)(B). Consistent with the approach that OSHA has taken in implementing other whistleblower protection provisions and consistent with applicable ARB case law, the interim final rule includes “an individual presently or formerly working for, an individual applying to work for, or an individual whose employment could be affected by, another person” in the definition of “covered individual.” See, e.g., 29 CFR 1979.101 (AIR21 definition of employee); 29 CFR 1980.101(g) (Sarbanes-Oxley Act of 2002 (SOX) definition of employee).

The term “employer” is defined in CAARA as meaning a person, or any officer, employee, contractor, subcontractor, or agent of such person. See 15 U.S.C. 7a-3(a)(3)(C). The term “Federal Government” is defined in CAARA as meaning a Federal regulatory or law enforcement agency; or any Member of Congress or committee of Congress. See 15 U.S.C. 7a-3(a)(3)(D).

The term “person” is defined in CAARA to have the same meaning as in 15 U.S.C. 12(a). Under that section, the term includes individuals as well as corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country. See 15 U.S.C. 7a-3(a)(3)(E) (incorporating 15 U.S.C. 12(a)).

This section describes the activities that are protected under CAARA and the conduct that is prohibited in response to any protected activities. The Act prohibits an employer, defined to include a person or any officer, employee, contractor, subcontractor, or agent of such person, from discharging, demoting, suspending, threatening, harassing or in any other manner retaliating against a covered individual in their terms and conditions of employment because the covered individual engaged in certain protected activity relating to certain antitrust laws—sections 1 and 3 of the Sherman Act, 15 U.S.C. 1 and 3. The Act further provides a rule of construction that “[t]he term `violation', with respect to the antitrust laws, shall not be construed to include a civil violation of any law that is not also a criminal violation.” 15 U.S.C. 7a-3(a)(4).

Protected activity under CAARA includes any lawful act by a covered individual to provide information or cause information to be provided regarding conduct which is of the type that constitutes a violation of section 1 or 3 of the Sherman Act, or which the covered individual reasonably believes constitutes a violation of section 1 or 3 of the Sherman Act; or conduct which the covered individual reasonably believes to be a violation of another criminal law which is committed, or which the covered individual reasonably believes to have been committed, in conjunction with a potential violation of section 1 or 3 of the Sherman Act or in conjunction with an investigation by the Department of Justice of a potential violation of section 1 or 3 of the Sherman Act. To be protected, the information or assistance must be provided to a Federal regulatory or law enforcement agency, any Member of Congress or committee of Congress, a person with supervisory authority over the covered individual, or any other person working for the employer who has the authority to investigate, discover, or terminate misconduct.

The Act also protects covered individuals from discharge or other retaliation for any lawful act done to cause to be filed, testify in, participate in, or otherwise assist a Federal Government investigation or a Federal Government proceeding filed or about to be filed (with any knowledge of the employer) relating to any violation of, or any act or omission which is of the type that constitutes a violation of section 1 or 3 of the Sherman Act, or which the covered individual reasonably believes to be a violation of, section 1 or 3 of the Sherman Act; or any violation of, or any act or omission the covered individual reasonably believes to be a violation of, another criminal law committed, or which the covered individual reasonably believes was committed, in conjunction with a potential violation of section 1 or 3 of the Sherman Act or in conjunction with an investigation by the Department of Justice of a potential violation of section 1 or 3 of the Sherman Act. The type of conduct that constitutes a violation of section 1 or 3 of the Sherman Act can include bid rigging, price fixing, and market allocation agreements between competitors.

Under the Act, a covered individual who provides information, causes information to be provided, or engages in other activities listed in the statute is protected as long as the conduct at issue is of the type that violates section 1 or 3 of the Sherman Act, or the covered individual reasonably believes that the conduct at issue is the type of conduct that violates section 1 or 3 of the Sherman Act; or the covered individual reasonably believes that the conduct at issue is a violation of another criminal law committed in conjunction with a potential violation of section 1 or 3 of the Sherman Act or in conjunction with an investigation by the Department of Justice of a potential violation. To have a reasonable belief, the individual must subjectively believe that such conduct is occurring and that belief must be objectively reasonable. See, e.g., Rhinehimer v. U.S. Bancorp. Invs., Inc., 787 F.3d 797, 811 (6th Cir. 2015) (discussing the reasonable belief standard under analogous language in the SOX whistleblower provision, 18 U.S.C. 1514A) (citations omitted); Harp v. Charter Commc'ns, Inc., 558 F.3d 722, 723 (7th Cir. 2009) (agreeing with First, Fourth, Fifth, and Ninth Circuits that determining reasonable belief under the SOX whistleblower provision requires analysis of the complainant's subjective belief and the objective reasonableness of that belief); Sylvester v. Parexel Int'l LLC, ARB No. 07-123, 2011 WL 2165854, at *11-12 (ARB May 25, 2011) (same). The objective reasonableness of a complainant's belief is typically determined “based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee.” Harp, 558 F.3d at 723 (quoting Allen v. Admin. Review Bd., 514 F.3d 468, 477 (5th Cir. 2008)). Moreover, the complainant need not cite any provision of law in their communications to the employer or show that the conduct constituted an actual violation of law. See, e.g., Sylvester, 2011 WL 2165854, at *11-12. Pursuant to this standard, a complainant's whistleblower activity is protected when it is based on a reasonable, but mistaken, belief that a violation of the relevant law has occurred. See Van Asdale v. Int'l Game Techs., 577 F.3d 989, 1001 (9th Cir. 2009); Allen, 514 F.3d at 477.

Activity will not be protected if the covered individual is found to have planned and initiated a violation or attempted violation of section 1 or 3 of the Sherman Act, planned and initiated a violation or attempted violation of another criminal law in conjunction with a violation or attempted violation of section 1 or 3 of the Sherman Act, or planned and initiated an obstruction or attempted obstruction of an investigation by the Department of Justice of a violation of section 1 or 3 of the Sherman Act.

This section explains the requirements for filing a retaliation complaint under CAARA. To be timely, a complaint must be filed within 180 days of when the alleged violation occurs. Under Delaware State College v. Ricks, 449 U.S. 250, 258 (1980), an alleged violation occurs when the retaliatory decision has been both made and communicated to the complainant. In other words, the limitations period commences once the covered individual is aware or reasonably should be aware of the employer's decision to take an adverse action. EEOC v. United Parcel Serv., Inc., 249 F.3d 557, 561-62 (6th Cir. 2001). The time for filing a complaint under CAARA may be tolled for reasons warranted by applicable case law. For example, OSHA may consider the time for filing a complaint to be tolled if a complainant mistakenly files a complaint with an agency other than OSHA within 180 days after an alleged adverse action. Xanthopoulos v. U.S. Dep't of Labor, 991 F.3d 823, 832 (7th Cir. 2021) (affirming ARB's refusal to toll the statute of limitations under SOX and explaining the limited circumstances in which tolling is appropriate for a timely filing in the wrong forum).

Complaints filed under CAARA need not be in any particular form. They may be either oral or in writing. If the complainant is unable to file the complaint in English, OSHA will accept the complaint in any language. With the consent of the covered individual, complaints may be filed by any person on the covered individual's behalf.

This section describes the procedures that apply to the investigation of CAARA complaints. Paragraph (a) of this section outlines the procedures for notifying the respondent, the employer (if different from the respondent), and the Antitrust Division of the United States Department of Justice of the complaint and notifying the respondent of rights under these regulations. In certain circumstances, OSHA may briefly delay notification to the respondent if requested by law enforcement. See OSHA Whistleblower Investigations Manual Chapter 3.IX.B, available at https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-03-011.pdf. Paragraph (b) describes the procedures for the respondent to submit the response to the complaint. Paragraph (c) specifies that OSHA will request that the parties provide each other with copies of their submissions to OSHA during the investigation and that, if a party does not provide such copies, OSHA generally will do so at a time permitting the other party an opportunity to respond to those submissions. Before providing such materials, OSHA will redact them consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. Paragraph (d) of this section discusses confidentiality of information provided during investigations.

Paragraph (e) of this section sets forth the applicable burdens of proof. CAARA incorporates the burdens of proof in AIR21. Thus, in order for OSHA to conduct an investigation, CAARA requires that a complainant make an initial prima facie showing that a protected activity was “a contributing factor” in the adverse action alleged in the complaint, i.e., that the protected activity, alone or in combination with other factors, affected in some way the outcome of the employer's decision. The complainant will be considered to have met the required burden for OSHA to commence an investigation if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing. The complainant's burden at this stage may be satisfied, for example, if the complainant shows that the adverse action took place shortly after the protected activity.

If the complainant does not make the required prima facie showing, the investigation must be discontinued and the complaint dismissed. See Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) (noting that the burden-shifting framework of the Energy Reorganization Act of 1974, as amended (ERA), which is the same as that under CAARA, serves a “gatekeeping function” intended to “stem[] frivolous complaints”). Even in cases where the complainant successfully makes a prima facie showing, CAARA requires that the investigation must be discontinued if the employer demonstrates, by clear and convincing evidence, that it would have taken the same adverse action in the absence of the protected activity. Thus, OSHA must dismiss the complaint and not investigate further if either: (1) the complainant fails to make the prima facie showing that protected activity was a contributing factor in the alleged adverse action; or (2) the employer rebuts that showing by clear and convincing evidence that it would have taken the same adverse action absent the protected activity.

Assuming that an investigation proceeds beyond the gatekeeping phase, the statute requires OSHA to determine whether there is reasonable cause to believe that protected activity was a contributing factor in the alleged adverse action. A contributing factor is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.” Wiest v. Tyco Elec. Corp., 812 F.3d 319, 330 (3d Cir. 2016) (discussing “contributing factor standard” under SOX); Feldman v. Law Enforcement Assocs. Corp., 752 F.3d 339, 348 (4th Cir. 2014) (same); Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1136 (10th Cir. 2013) (same). A conclusion that protected activity was a contributing factor in an adverse action can be based on direct evidence or circumstantial evidence “such as the temporal proximity between the protected activity and the adverse action, indications of pretext such as inconsistent application of policies and shifting explanations, antagonism or hostility toward protected activity, the relation between the discipline and the protected activity, and the presence [or absence] of intervening events that independently justify” the adverse action. Hess v. Union Pac. R.R. Co., 898 F.3d 852, 858 (8th Cir. 2018) (quoted source omitted) (discussing the contributing factor standard under the Federal Railroad Safety Act).

If OSHA finds reasonable cause to believe that the alleged protected activity was a contributing factor in the adverse action, OSHA may not order relief if the employer demonstrates by “clear and convincing evidence” that it would have taken the same action in the absence of the protected activity. See 49 U.S.C. 42121(b)(2)(B)(iv). The “clear and convincing evidence” standard is a higher burden of proof than a “preponderance of the evidence” standard. Clear and convincing evidence is evidence indicating that the thing to be proved is highly probable or reasonably certain. Clarke v. Navajo Express, ARB No. 09-114, 2011 WL 2614326, at *3 (ARB June 29, 2011).

Paragraph (f) describes the procedures OSHA will follow prior to the issuance of findings and a preliminary order when OSHA has reasonable cause to believe that a violation has occurred and reinstatement is required. Their purpose is to ensure compliance with the Due Process Clause of the Fifth Amendment, as interpreted by the Supreme Court in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987) (requiring OSHA to give a Surface Transportation Assistance Act respondent the opportunity to review the substance of the evidence and respond prior to ordering preliminary reinstatement).

This section provides that, on the basis of information obtained in the investigation, the Assistant Secretary will issue, within 60 days of the filing of a complaint, written findings regarding whether or not there is reasonable cause to believe that the complaint has merit. If the findings are that there is reasonable cause to believe that the complaint has merit, the Assistant Secretary will order all relief necessary to make the complainant whole, including reinstatement with the same seniority status that the complainant would have had, but for the retaliation; back pay with interest; and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees. The findings and, where appropriate, the preliminary order, will also advise the parties of their right to file objections to the findings of the Assistant Secretary and to request a hearing. The findings and, where appropriate, the preliminary order, will also advise the respondent of the right to request an award of attorney fees not exceeding a total of $1,000 from the ALJ, regardless of whether the respondent has filed objections, if the respondent alleges that the complaint was frivolous or brought in bad faith. If no objections are filed within 30 days of receipt of the findings, the findings and any preliminary order of the Assistant Secretary become the final decision and order of the Secretary. If objections are timely filed, any order of preliminary reinstatement will take effect, but the remaining provisions of the order will not take effect until administrative proceedings are completed.

The remedies provided under CAARA aim to make the complainant whole by restoring the complainant to the position that the complainant would have occupied absent the retaliation and to counteract the chilling effect of retaliation on protected whistleblowing in the complainant's workplace. The back pay and other remedies appropriate in each case will depend on the individual facts of the case and the evidence submitted, and the complainant's interim earnings must be taken into account in determining the appropriate back pay award. When there is evidence to determine these figures, a back pay award under CAARA might include, for example, amounts that the complainant would have earned in commissions, bonuses, overtime, or raises had the complainant not been discharged in retaliation for engaging in protected activity under CAARA. Lost benefits may also be included in a back pay award when there is evidence to support an award for lost benefits. A benefits award under CAARA might include amounts that the employer would have contributed to a 401(k) plan, insurance plan, profit-sharing plan, or retirement plan on the complainant's behalf had the complainant not been discharged in retaliation for engaging in protected activity under CAARA. Other damages, including non-pecuniary damages, such as damages for emotional distress due to the retaliation, are also available under CAARA. See, e.g., Jones v. Southpeak Interactive Corp. of Del., 777 F.3d 658, 670-71 (4th Cir. 2015) (holding that emotional distress damages are available under identical remedial provision in SOX); Halliburton, Inc. v. Admin. Review Bd., 771 F.3d 254, 264-66 (5th Cir. 2014) (same). Consistent with the rules under other whistleblower statutes enforced by the Department of Labor, in ordering interest on back pay under CAARA, OSHA will compute interest due by compounding daily the Internal Revenue Service interest rate for the underpayment of taxes, which under 26 U.S.C. 6621(a)(2) is the Federal short-term rate plus three percentage points, against back pay. See, e.g., 29 CFR 1980.105(a) (SOX); 29 CFR 1982.105(a) (Federal Railroad Safety Act (FRSA)); 29 CFR 1988.105(a) (Moving Ahead for Progress in the 21st Century Act (MAP-21)).

Consistent with the rules governing other Department of Labor-enforced whistleblower protection statutes, where appropriate, in ordering back pay, OSHA will require the respondent to submit the appropriate documentation to the Social Security Administration (SSA) allocating the back pay to the appropriate periods. See, e.g., 29 CFR 1980.105(a) (SOX); 29 CFR 1982.105(a) (FRSA); 29 CFR 1988.105(a) (MAP-21)).

The statute permits OSHA to preliminarily reinstate covered individuals to their positions if OSHA finds reasonable cause to believe that they were discharged in violation of CAARA. See 49 U.S.C. 42121(b)(2)(A). When a violation is found, the norm is for OSHA to order immediate preliminary reinstatement. In appropriate circumstances, in lieu of preliminary reinstatement, OSHA may order that the complainant receive the same pay and benefits that the complainant received prior to termination but not actually return to work. Such “economic reinstatement” is akin to an order of front pay and is sometimes employed in cases arising under section 105(c) of the Federal Mine Safety and Health Act of 1977, which protects miners from retaliation. 30 U.S.C. 815(c); see, e.g., Sec'y of Labor, MSHA v. North Fork Coal Corp., 33 FMSHRC 589, 2011 WL 1455831, at *4 (FMSHRC Mar. 25, 2011) (explaining economic reinstatement in lieu of temporary reinstatement in the context of section 105(c)). Front pay has been recognized as an appropriate remedy in cases under the whistleblower statutes enforced by OSHA in circumstances where reinstatement would not be appropriate. See, e.g., Deltek, Inc. v. Dep't of Labor, Admin. Rev Bd., 649 Fed. App'x. 320, 333 (4th Cir. 2016) (affirming award of front pay in SOX case due to “pronounced animosity between the parties;” explaining that “front pay `is designed to place the complainant in the identical financial position' that she would have occupied had she remained employed or been reinstated.”); Continental Airlines, Inc. v. Admin. Review Bd., 638 Fed. App'x. 283, 289-90, 2016 WL 97461, at *4 (5th Cir. 2016) (affirming front pay award under AIR21, and explaining that “front-pay is available when reinstatement is not possible”), aff'g Luder v. Cont'l Airlines, Inc., ARB No. 10-026, 2012 WL 376755, at *11 (ARB Jan. 31, 2012); see also Brown v. Lockheed Martin Corp., ALJ No. 2008-SOX-00049, 2010 WL 2054426, at *55-56 (ALJ Jan. 15, 2010) (noting that while reinstatement is the “presumptive remedy” under SOX whistleblower provision, front pay may be awarded as a substitute when reinstatement is inappropriate), aff'd Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1138 (10th Cir. 2013) (noting availability of all relief necessary to make the employee whole in SOX case but remanding for DOL to quantify remedies); Indiana Michigan Power Co. v. U.S. Dept. of Labor, 278 Fed. Appx. 597, 606 (6th Cir. 2008) (affirming front pay award under ERA). Neither an employer nor a covered individual has a statutory right to choose economic reinstatement. Rather, economic reinstatement is designed to accommodate situations in which evidence establishes to OSHA's satisfaction that immediate reinstatement is inadvisable for some reason, notwithstanding the employer's retaliatory discharge of the individual.

Objections to the findings of the Assistant Secretary must be in writing and must be filed with the Chief Administrative Law Judge, U.S. Department of Labor, in accordance with 29 CFR part 18, as applicable, within 30 days of the receipt of the findings. The date of the postmark, facsimile transmittal, or electronic transmittal is considered the date of the filing; if the objection is filed in person, by hand-delivery or other means, the objection is filed upon receipt. The filing of objections also is considered a request for a hearing before an ALJ. Although the parties are directed to serve a copy of their objections on the other parties of record, as well as on the OSHA official who issued the findings and order, the Assistant Secretary, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards, the failure to serve copies of the objections on the other parties of record does not affect the ALJ's jurisdiction to hear and decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 2005). OSHA and the Associate Solicitor for Fair Labor Standards may specify the means, including electronic means, to serve them with copies of objections to OSHA's findings.

The timely filing of objections stays all provisions of the preliminary order, except for the portion requiring reinstatement. A respondent may file a motion to stay the Assistant Secretary's preliminary order of reinstatement with the Office of Administrative Law Judges. However, such a motion will be granted only based on exceptional circumstances. The Secretary believes that a stay of the Assistant Secretary's preliminary order of reinstatement under CAARA would be appropriate only where the respondent can establish the necessary criteria for equitable injunctive relief, i.e., irreparable injury, likelihood of success on the merits, a balancing of possible harms to the parties, and that the public interest favors a stay. If no timely objection to the Assistant Secretary's findings and/or preliminary order is filed, then the Assistant Secretary's findings and/or preliminary order become the final decision of the Secretary not subject to judicial review.

This section adopts the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges, as set forth in 29 CFR part 18 subpart A. This section provides that the hearing is to commence expeditiously, except upon a showing of good cause or unless otherwise agreed to by the parties. Hearings will be conducted de novo, on the record. As noted in this section, formal rules of evidence will not apply, but rules or principles designed to assure production of the most probative evidence will be applied. The ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.

The Assistant Secretary may participate as a party or amicus curiae at any time in the administrative proceedings under CAARA. For example, the Assistant Secretary may exercise discretion to prosecute the case in the administrative proceeding before an ALJ; petition for review of a decision of an ALJ, including a decision based on a settlement agreement between the complainant and the respondent, regardless of whether the Assistant Secretary participated before the ALJ; or participate as amicus curiae before the ALJ or the ARB. Although OSHA anticipates that ordinarily the Assistant Secretary will not participate, the Assistant Secretary may choose to do so in appropriate cases, such as cases involving important or novel legal issues, multiple employees, alleged violations that appear egregious, or where the interests of justice might require participation by the Assistant Secretary. The Department of Justice Antitrust Division, if interested in a proceeding, also may participate as amicus curiae at any time in the proceedings.

This section sets forth the requirements for the content of the decisions and orders of the ALJ, and includes the standard for finding a violation under CAARA. Specifically, because CAARA incorporates the burdens of proof in AIR21, the complainant must demonstrate ( i.e., prove by a preponderance of the evidence) that the protected activity was a “contributing factor” in the adverse action. See 49 U.S.C. 42121(b)(2)(B)(iii); see, e.g., Allen, 514 F.3d at 475 n.1 (“The term `demonstrates' [under identical burden-shifting scheme in the SOX whistleblower provision] means to prove by a preponderance of the evidence.”). If the complainant demonstrates that the alleged protected activity was a contributing factor in the adverse action, then the employer must demonstrate by “clear and convincing evidence” that it would have taken the same action in the absence of the protected activity. See 49 U.S.C. 42121(b)(2)(B)(iv).

Paragraph (c) of this section further provides that OSHA's determination to dismiss the complaint without an investigation or without a complete investigation under § 1991.104 is not subject to review. OSHA's determinations on whether to proceed with an investigation under CAARA and whether to make investigative findings are discretionary decisions not subject to review by the ALJ. The ALJ hears cases de novo and, therefore, as a general matter, may not remand cases to OSHA to conduct an investigation or make further factual findings. Paragraph (d) notes the remedies that the ALJ may order under CAARA and, as discussed under § 1991.105 above, provides that interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621(a)(2) and will be compounded daily, and that the respondent will be required to submit appropriate documentation to the SSA allocating any back pay award to the appropriate periods. Paragraph (e) requires that the ALJ's decision be served on all parties to the proceeding, OSHA, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards. OSHA and the Associate Solicitor for Fair Labor Standards may specify the means, including electronic means, for service of the ALJ's decision on them. Paragraph (e) also provides that any ALJ decision requiring reinstatement or lifting an order of reinstatement by the Assistant Secretary will be effective immediately upon receipt of the decision by the respondent. All other portions of the ALJ's order will be effective 30 days after the date of the decision unless a timely petition for review has been filed with the ARB. If a timely petition for review is not filed with the ARB, the decision of the ALJ becomes the final decision of the Secretary and is not subject to judicial review.

Upon the issuance of the ALJ's decision, the parties have 30 days within which to petition the ARB for review of that decision. The date of the postmark, facsimile transmittal, or electronic transmittal is considered the date of filing of the petition; if the petition is filed in person, by hand delivery, or other means, the petition is considered filed upon receipt.

The appeal provisions in this part provide that an appeal to the ARB is only accepted at the discretion of the ARB. The parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections may be deemed waived. The ARB has 30 days to decide whether to accept the petition for review. If the ARB does not accept the petition, the decision of the ALJ becomes the final decision of the Secretary. If a timely petition for review is filed with the ARB, any relief ordered by the ALJ, except for that portion ordering reinstatement, is inoperative while the matter is pending before the ARB. When the ARB accepts a petition for review, the ALJ's factual determinations will be reviewed under the substantial evidence standard.

This section also provides that, based on exceptional circumstances, the ARB may grant a motion to stay an ALJ's preliminary order of reinstatement under CAARA (which otherwise would be effective immediately) while the ARB reviews the order. A stay of an ALJ's preliminary order of reinstatement under CAARA would be appropriate only where the respondent can establish the necessary criteria for equitable injunctive relief, i.e., irreparable injury, likelihood of success on the merits, a balancing of possible harms to the parties, and that the public interest favors a stay. See, e.g., Bailey v. Consol. Rail Corp. , ARB Case Nos. 13-030 13-033, 2013 WL 1385563, at *2 (ARB Mar. 27, 2013).

If the ARB concludes that the respondent has violated the law, it will issue an order providing all relief necessary to make the complainant whole. The order will require, where appropriate: reinstatement with the same seniority status that the complainant would have had, but for the retaliation; back pay with interest; and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes pursuant to 26 U.S.C. 6621(a)(2) and will be compounded daily, and the respondent will be required to submit appropriate documentation to the SSA allocating any back pay award to the appropriate periods. If the ARB determines that the respondent has not violated the law, an order will be issued denying the complaint. If, upon the request of the respondent, the ARB determines that a complaint was frivolous or was brought in bad faith, the ARB may award to the respondent a reasonable attorney fee, not exceeding a total of $1,000.

The decision of the ARB is subject to discretionary review by the Secretary of Labor. See Secretary of Labor's Order, 01-2020 (Feb. 21, 2020), 85 FR 13186, 13187 (Mar. 6, 2020).

As provided in that Secretary's Order, a party may petition the ARB to refer a decision to the Secretary for further review, after which the Secretary may accept review, decline review, or take no action. If no such petition is filed, the ARB's decision shall become the final action of the Department 28 calendar days after the date on which the decision was issued. If such a petition is filed and the ARB declines to refer the case to the Secretary, the ARB's decision shall become final 28 calendar days after the date on which the petition for review was filed. If the ARB refers a decision to the Secretary for further review, and the Secretary takes no action in response to the ARB's referral, or declines to accept the case for review, the ARB's decision shall become final either 28 calendar days from the date of the referral, or on the date on which the Secretary declines review, whichever comes first.

In the alternative, under the Secretary's Order, at any point during the first 28 calendar days after the date on which an ARB decision was issued, the Secretary may direct the ARB to refer the decision to the Secretary for review. If the Secretary directs the ARB to refer a case to the Secretary, or notifies the parties that the case has been accepted for review, the ARB's decision shall not become the final action of the Department and shall have no legal force or effect, unless and until the Secretary adopts the ARB's decision.

Under the Secretary's Order, any final decision made by the Secretary shall be made solely based on the administrative record, the petition and briefs filed with the ARB, and any amicus briefs permitted by the Secretary. The decision shall be in writing and shall be transmitted to the ARB, who will publish the decision and transmit it to the parties to the case. The Secretary's decision shall constitute final action by the Department and shall serve as binding precedent in all Department proceedings involving the same issue or issues.

This section provides the procedures and time periods for withdrawal of complaints, withdrawal of findings and/or preliminary orders by the Assistant Secretary, and withdrawal of objections to findings and/or orders. It permits complainants to withdraw their complaints orally, and provides that, in such circumstances, OSHA will confirm a complainant's desire to withdraw in writing. It also provides for approval of settlements at the investigative and adjudicatory stages of the case.

This section describes the statutory provisions for judicial review of decisions of the Secretary and requires, in cases where judicial review is sought, the ARB or the ALJ to submit the record of proceedings to the appropriate court pursuant to the rules of such court.

This section describes the ability of the Secretary, the complainant, and the respondent under CAARA to obtain judicial enforcement of final orders, preliminary orders of reinstatement, and terms of settlement agreements approved by the Department of Labor as provided in § 1991.111(d) and (e). CAARA provides that “[i]f a person fails to comply with an order or preliminary order issued by the Secretary of Labor pursuant to the procedures set forth in section 42121(b) of title 49, the Secretary of Labor or the person on whose behalf the order was issued may bring a civil action to enforce the order in the district court of the United States for the judicial district in which the violation occurred.” 15 U.S.C. 7a-3(b)(2)(E). As explained in section 1991.106, if a timely objection to OSHA's preliminary order is filed, all provisions of the preliminary order will be stayed, except for the portion requiring preliminary reinstatement, which will not be automatically stayed. See also 49 U.S.C. 42121(b)(2)(A) (“The filing of such objections shall not operate to stay any reinstatement remedy contained in the preliminary order.”). Thus, CAARA permits both private parties and the Secretary to seek district court enforcement of preliminary orders of reinstatement and final orders of the Secretary, including approved settlement agreements.

This section sets forth CAARA's provisions allowing a complainant to bring an original de novo action in district court, alleging the same allegations contained in the complaint filed with OSHA, if there has been no final decision of the Secretary within 180 days after the date of the filing of the complaint, and there is no showing that such delay is due to the bad faith of the complainant. See 15 U.S.C. 7a-3(b)(1)(B). This section also reflects the statutory provision that specifies the burdens of proof in a district court action. See 15 U.S.C. 7a-3(b)(2)(C) (incorporating 49 U.S.C. 42121(b).

This section also requires that, within seven days after filing a complaint in district court, a complainant must provide a file-stamped copy of the complaint to OSHA, the ALJ, or the ARB, depending on where the proceeding is pending. If the ARB has issued a decision that has not yet become final under Secretary of Labor's Order 01-2020, the case is regarded as pending before the ARB for purposes of this section and a copy of any district court complaint should be sent to the ARB. A copy of the district court complaint also must be provided to the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards. This provision is necessary to notify the agency that the complainant has opted to file a complaint in district court. This provision is not a substitute for the complainant's compliance with the requirements for service of process of the district court complaint contained in the Federal Rules of Civil Procedure and the local rules of the district court where the complaint is filed.

Finally, it should be noted that although a complainant may file an action in district court if the Secretary has not issued a final decision within 180 days of the filing of the complaint with OSHA, it is the Department of Labor's position that complainants may not initiate an action in federal court after any decision of the Department of Labor becomes the final decision of the Secretary, even if the date of the final decision is more than 180 days after the filing of the complaint. Thus, for example, after the ARB has issued a decision that has become final denying a whistleblower complaint, the complainant no longer may file an action for de novo review in federal district court. See Soo Line R.R., Inc. v. Admin. Review Bd., 990 F.3d 596, 598 n.1 (8th Cir. 2021). The purpose of the “kick-out” provision is to aid the complainant in receiving a prompt decision. That goal is not implicated in a situation where the complainant already has received a final decision from the Secretary. In addition, permitting the complainant to file a new case in district court in such circumstances could conflict with the parties' rights to seek judicial review of the Secretary's final decision in the court of appeals. See 49 U.S.C. 42121(b)(4)(B) (providing that an order with respect to which review could have been obtained in the court of appeals shall not be subject to judicial review in any criminal or other civil proceeding).

This section provides that, in circumstances not contemplated by these rules or for good cause, the ALJ or the ARB may, upon application and notice to the parties, waive any rule or issue such orders as justice or the administration of CAARA requires.

This rule contains a reporting provision (filing a retaliation complaint, section 1991.103) which was previously reviewed as a statutory requirement of CAARA and approved for use by the Office of Management and Budget (OMB), as part of the Information Collection Request (ICR) assigned OMB control number 1218-0236 under the provisions of the Paperwork Reduction Act of 1995 (PRA). See Public Law 104-13, 109 Stat. 163 (1995). A non-material change has been submitted to OMB to include the regulatory citation.

The notice and comment rulemaking procedures of section 553 of the Administrative Procedure Act (APA) do not apply “to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A). This is a rule of agency procedure, practice, and interpretation within the meaning of that section, because it provides the procedures for the handling of retaliation complaints. Therefore, publication in the Federal Register of a notice of proposed rulemaking and request for comments are not required for this rule. Although this is a procedural and interpretative rule not subject to the notice and comment procedures of the APA, OSHA is providing persons interested in this interim final rule 60 days to submit comments. A final rule will be published after OSHA receives and reviews the public's comments.

Furthermore, because this rule is procedural and interpretative rather than substantive, the normal requirement of 5 U.S.C. 553(d) that a rule be effective 30 days after publication in the Federal Register is inapplicable. OSHA also finds good cause to provide an immediate effective date for this interim final rule. It is in the public interest that the rule be effective immediately so that parties may know what procedures are applicable to pending cases.

The Office of Information and Regulatory Affairs has concluded that this rule is not a “significant regulatory action” within the meaning of Executive Order 12866, reaffirmed by Executive Order 13563, because it is not likely to: (1) have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866. Therefore, no economic impact analysis under section 6(a)(3)(C) of Executive Order 12866 has been prepared.

Also, because this rule is not significant under Executive Order 12866, and because no notice of proposed rulemaking has been published, no statement is required under section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532. In any event, this rulemaking is procedural and interpretative in nature and is thus not expected to have a significant economic impact. Finally, this rule does not have “federalism implications.” The rule does 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[,]” and therefore, is not subject to Executive Order 13132 (Federalism).

The notice and comment rulemaking procedures of section 553 of the APA do not apply “to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A). Rules that are exempt from APA notice and comment requirements are also exempt from the Regulatory Flexibility Act (RFA). See Small Business Administration Office of Advocacy, A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act, at 9; also found at https://www.sba.gov/advocacy/guide-government-agencies-how-comply-regulatory-flexibility-act . This is a rule of agency procedure, practice, and interpretation within the meaning of 5 U.S.C. 553; and, therefore, the rule is exempt from both the notice and comment rulemaking procedures of the APA and the requirements under the RFA.

This document was prepared under the direction and control of Douglas L. Parker, Assistant Secretary of Labor for Occupational Safety and Health.

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Sector Corpus Christi DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish these security zones by February 7, 2023 to ensure security of these vessels and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest because immediate action is needed to provide for the security of these vessels.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Corpus Christi (COTP) has determined that potential hazards associated with the transit of the Motor Vessel (M/V) DOM EXPLORER and M/V ADRIANO KNUTSEN, when loaded, will be a security concern within a 500-yard radius of each vessel. This rule is needed to provide for the safety and security the vessels, their cargo, and surrounding waterway from terrorist acts, sabotage or other subversive acts, accidents, or other events of a similar nature while they are transiting within Corpus Christi, TX, from February 7, 2023 through February 13, 2023.

The Coast Guard is establishing four 500-yard radius temporary moving security zones around M/V DOM EXPLORER and M/V ADRIANO KNUTSEN. The zones for the vessels will be enforced from February 7, 2023, through February 13, 2023. The duration of the zones are intended to protect the vessels and cargo and surrounding waterway from terrorist acts, sabotage or other subversive acts, accidents, or other events of a similar nature. No vessel or person will be permitted to enter the security zones without obtaining permission from the COTP or a designated representative.

Entry into these security zones is prohibited unless authorized by the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard (USCG) assigned to units under the operational control of USCG Sector Corpus Christi. Persons or vessels desiring to enter or pass through each zone must request permission from the COTP or a designated representative on VHF-FM channel 16 or by telephone at 361-939-0450. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative. The COTP or a designated representative will inform the public through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs),and/or Marine Safety Information Bulletins (MSIBs) as appropriate for the enforcement times and dates for each security zone.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, duration, and location of the security zones. This rule will impact a small designated area of 500-yards around the moving vessels in the Corpus Christi Ship Channel and La Quinta Channel as the vessels transit the channel over a seven day period. Moreover, the rule allows vessels to seek permission to enter the zones.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the temporary security zones may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves moving security zones lasting for the duration of time that the M/V DOM EXPLORER and M/V ADRIANO KNUTSEN are within the Corpus Christi Ship Channel and La Quinta Channel while loaded with cargo. It will prohibit entry within a 500-yard radius of M/V DOM EXPLORER and M/V ADRIANO KNUTSEN while the vessels are transiting loaded within Corpus Christi Ship Channel and La Quinta Channel. It is categorically excluded from further review under L60 in Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

I. Background

Packaging Company of America (PCA) petitioned TDEC to adopt revised permit conditions applicable to PCA's Highway 57, Counce, Tennessee facility (PCA Counce Mill) with an alternative monitoring option for this large non-EGU, along with corresponding revised recordkeeping and reporting conditions. This petition resulted in the issuance of the permit for PCA Counce Mill included as part of TDEC's SIP submittal. The changes allow PCA Counce Mill to address the NO X SIP Call's requirements for enforceable limits on ozone season NO X mass emissions through non-Part 75 alternative monitoring and reporting methodologies. The June 29, 2021, source-specific SIP revision submitted by TDEC contains the permit provisions that TDEC modified to specifically address the alternative monitoring provisions allowed under the NO X SIP Call. TDEC requests conditional approval of those provisions into the SIP.

Through a notice of proposed rulemaking (NPRM) published on December 23, 2022 (87 FR 78892), EPA proposed to conditionally approve the June 10, 2021, changes to Tennessee Air Pollution Control Board operating permit No. 078563 contained in TDEC's June 29, 2021 submittal. TDEC requests that this approval be conditioned on Tennessee's commitment to modify the provisions at Tennessee Air Pollution Control Regulation (TAPCR) 1200-03-27.12(11) to specify allowable non-Part 75 permissible alternative monitoring and reporting methodologies for large industrial non-EGUs subject to the NO X SIP Call, such as the alternative monitoring and reporting provisions in permit No. 078563. The details of Tennessee's submission, as well as the background and EPA's rationale for conditionally approving the changes, are described in more detail in the December 23, 2022, NPRM. Comments on the December 23, 2022, NPRM were due on or before January 23, 2023. No comments were received on the December 23, 2022, NPRM, adverse or otherwise.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, and as discussed in Section III of this preamble, EPA is finalizing the incorporation by reference of Tennessee Air Pollution Control Board operating permit No. 078563 for PCA Counce Mill, state effective on June 10, 2021, into the Tennessee SIP. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

EPA is taking final action to conditionally approve Tennessee Air Pollution Control Board operating permit No. 078563 for PCA Counce Mill, state effective June 10, 2021, for incorporation into the Tennessee SIP. These changes were submitted by Tennessee on June 29, 2021. As discussed in more detail in the December 23, 2022 NPRM, these changes to Tennessee's SIP are approved subject to the condition that Tennessee meets its commitment to submit a SIP revision modifying the provisions of TAPCR 1200-03-27.12(11) to specify permissible non-Part 75 alternative monitoring and reporting methodologies, as allowed under 40 CFR 51.121(i)(1) and (4), by 12 months from the date of this final approval. If the State fails to submit this revision on or before 12 months from the date of final approval of this action, the conditional approval will become a disapproval pursuant to CAA section 110(k)(4).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 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. This action merely conditionally approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

• 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).

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 11, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2) of the CAA.

For the reasons stated in the preamble, EPA amends 40 CFR part 52 as follows: