Federal Register Vol. 83, No.180,

Congress enacted the Expedited Funds Availability Act of 1987 (EFA Act) to provide prompt funds availability for deposits in transaction accounts and to foster improvements in the check collection and return processes. Section 609(c) authorizes the Board to regulate any aspect of the payment system and any related function of the payment system with respect to checks in order to carry out the provisions of the EFA Act.1

Regulation CC implements the EFA Act. Subpart C of Regulation CC implements the EFA Act's provisions regarding forward collection and return of checks.

Under the Uniform Commercial Code (UCC), an alteration is a change to the terms of a check that is made after the check is issued that modifies an obligation of a party by, for example, changing the payee's name or the amount of the check.2 By contrast, a forgery is a check on which the signature of the drawer (i.e., the account-holder at the paying bank) was made without authorization at the time of the check's issuance.3 In general, under UCC 4-401, the paying bank may charge the drawer's account only for checks that are properly payable.4 Neither altered checks nor forged checks are properly payable. In the case of an altered check under the UCC, the banks that received the check during forward collection, including the paying bank, have warranty claims against the banks that transferred the check (e.g., a collecting bank or the depositary bank). In the case of a forged check, however, the UCC places the responsibility on the paying bank for identifying the forgery.5 Therefore, the depositary bank typically bears the loss related to an altered check, whereas the paying bank bears the loss related to a forged check.

These provisions of the UCC reflect the long-standing rule set forth in Price v. Neal that the paying bank must bear the loss when a check it pays is not properly payable by virtue of the fact that the drawer did not authorize the item.6 The Price v. Neal rule reflects the assumption that the paying bank, rather than the depositary bank, is in the best position to judge whether the drawer's signature on a check is the authorized signature of the account-holder. By contrast, the depositary bank is arguably in a better position than the paying bank to inspect the check at the time of deposit and detect an alteration to the face of the check, to determine that the amount of the check is unusual for the depositary bank's customer, or to otherwise take responsibility for the items it accepts for deposit.

Regulation CC does not currently address whether a check should be presumed to be altered or forged in cases of doubt. For example, an unauthorized payee name could result from an alteration of the original check that the drawer issued, or from the creation of a forged check bearing the unauthorized payee name and an unauthorized/forged drawer's signature. Courts have reached opposite conclusions as to whether a paid, but fraudulent, check should be presumed to be altered or forged in the absence of evidence (such as the original check).7 Since the time of these decisions, the check collection system has become virtually all-electronic, and the number of instances in which the original paper check is available for inspection in such cases will be quite low.8 Unlike the 2006 court cases, where the paying bank received and destroyed the original check, in today's check environment the original check is typically truncated by the depositary bank or a collecting bank before it reaches the paying bank.

On June 2, 2017, the Board published a notice of proposed rulemaking intended to clarify the burden of proof in situations where there is a dispute as to whether the check has been altered or is a forgery, and the original paper check is not available for inspection.9 The Board proposed to adopt a presumption of alteration with respect to any dispute arising under Federal or State law as to whether the dollar amount or the payee on a substitute check or electronic check has been altered or whether the substitute check or electronic check is derived from an original check that is a forgery. Under the proposed rule, the presumption of alteration may be overcome by a preponderance of evidence that the substitute check or electronic check accurately represents the dollar amount and payee as authorized by the drawer, or that the substitute check or electronic check is derived from an original check that is a forgery. In the proposed rule, the presumption of alteration shall cease to apply if the original check is made available for examination by all parties involved in the dispute. The Board requested comment on whether the presumption should apply to a claim that the date was altered. The Board also requested comment on whether the presumption should apply if the bank claiming the presumption received and destroyed the original check.

The Board received eleven responses to its proposal from a variety of commenters, including financial institutions, trade associations, and clearinghouses. Ten commenters, including a comment letter submitted by a group of institutions and trade associations (“group letter”), generally supported the Board's proposal to adopt a presumption of alteration. Commenters supported the presumption of alteration because it aligned Regulation CC with current practices and created a uniform rule. One commenter stated that the proposed presumption was not necessary because the difference between alteration and forgery are well-known in the industry and the use of an evidentiary presumption may require institutions to unnecessarily increase the expense to store documents. Detailed comments are discussed in the description of the final rule below.

As directed by section 609(e) of the EFA Act, the Board consulted with the Comptroller of the Currency, the Board of Directors of the Federal Deposit Insurance Corporation, and the National Credit Union Administration Board during the rulemaking process.10

The Board has considered all comments received and has adopted a presumption of alteration. The Board has made certain modifications to the proposed presumption in light of comments received, as discussed below.

Altered Date. The Board's proposed presumption covered alterations to the dollar amount and payee. The Board requested comment on whether the presumption of alteration should apply to a claim that the date was altered. Six commenters, including the group letter, supported applying the presumption to claims that the date was altered and one commenter requested the Board investigate whether applying the presumption to such claims would promote greater certainty in the check collection process. Two commenters, including the group letter, noted that a claim that the date was altered may be alleged (1) where the date of a post-dated check is altered to make the check currently payable, and as a result, the paying bank pays the check when presented and incurs a loss to its customer which would not have resulted had the paying bank paid the check upon or following the date on the check was issued by the customer; and (2) where the date is altered to a more recent date in order to convey holder-in-due-course status on the depositor or to otherwise avoid a “stale-date” rejection by the paying bank. Three commenters suggested that the Board align the definition of “alteration” with the definition in the UCC, which would include alteration of the date field.11 One Federal Reserve Bank commenter stated that fraud could be committed by altering a number of fields, including name of payee, amount, date, check number, routing number, payee's indorsement, etc., and that the Board should address the entire scope of the legal uncertainty by using the UCC definition of alteration.

Based on the comments received, the Board has modified the presumption in the final rule so that the term “alteration” is used as defined in the UCC. The Board believes that aligning the presumption with the UCC's definition of “alteration” appropriately expands the scope of the presumption to cover instances of fraud beyond changes to the dollar amount or payee. The Board notes in the commentary that terms that are not defined in section 229.2, such as “alteration,” have the meanings set forth in the UCC and provides examples of alterations.

Bank that received and destroyed the original check. The presumption in the proposed rule would apply to disputes involving a substitute check or an electronic check, and thus the presumption could not be asserted by a bank that received the original check. The Board requested comment on whether the presumption should apply if the bank claiming the presumption received and destroyed the original check.

Six commenters, including the group letter, stated that the presumption should not apply to paying banks that received and destroyed the original check. These commenters noted that it is rare for a paying bank to receive an original check. A paying bank may receive the original check from the depositary bank via direct presentment if it is a very high dollar check or if the depositary bank has concerns with certain aspects of the check, such as unclear terms or a smudged signature. A paying bank may also request and receive the original check after receiving presentment of an electronic check due to a dispute about the check image. These commenters stated that receipt of an original check by a paying bank puts the paying bank on notice about the possible importance of the original check, and the paying bank should not have the benefit of the presumption of alteration if it receives the original check.

Commenters were split on whether the presumption should apply to a bank, other than the paying bank, if it received and destroyed the original check. The group letter stated that the presumption should apply in these cases because it would promote check truncation by not creating a legal disincentive to the destruction of checks by such banks. Three commenters stated that the presumption should not apply to any bank that received and destroyed the original check because a bank should not benefit from a presumption against another party when it had in its possession potential evidence to resolve a dispute regarding alteration or forgery.

In the final rule, the presumption of alteration applies to a dispute between banks where an electronic check or a substitute check was transferred between those banks. The presumption applies in such a dispute regardless of where in the chain, or by whom, the original check was truncated. However, as noted in the commentary, the presumption does not apply to a dispute between banks where the original check was transferred between those banks, even if that check is subsequently truncated and destroyed. The Board believes that the final rule addresses the concerns raised by the commenters who argued that the presumption of alteration should not apply if the paying bank received the original check. As a presumption of alteration generally favors the paying bank (the depositary bank is generally liable for alterations), the commenters' concern was that the application of the presumption should not incentivize a paying bank to destroy the original check after being put on notice of potentially high-risk items by receiving the original check. When a paying bank receives presentment of the original check, the presumption of alteration would not apply, as the presumption applies only to disputes concerning substitute checks or electronic checks. In another example noted by commenters, a paying bank may request and receive the original check after receiving presentment of an electronic check due to a dispute about the check image. In that scenario, the presumption of alteration would not apply pursuant to § 229.38(i)(3), which states that the presumption no longer applies if the original check is made available for examination by all parties involved in the dispute.

The Board does not believe that limiting the application of the presumption to the transfer of electronic checks or substitute checks will create a material incentive for depositary banks or collecting banks to bypass the check imaging process and send forward a substantial number of original checks merely to preserve the presumption of alteration. As the commenters noted, the expense of handling checks physically would likely be merited only in rare cases where a bank had substantial concerns about certain aspects of the check.

Rebutting the presumption and effect of producing the original check. One Federal Reserve Bank commenter suggested that the Board allow the presumption to be overcome only by the production of the original check, and not by proving by a preponderance of the evidence that the check was not altered or was forged. The commenter stated that a stronger evidentiary presumption in favor of alteration would be more efficient, as parties may continue to expend resources litigating the issue of whether an item is an alteration or forgery. Two commenters requested that the Board specify who would have the authority to determine whether evidence satisfied a preponderance of evidence burden. One commenter requested that the Board provide additional clarity as to what type of evidence would be adequate to overcome the presumption of alteration. Two commenters suggested that the Board set a time limitation in which a financial institution could request the original check in cases of doubt, such as ten business days. Additionally, one commenter requested that the Board allow a scanned image of the original check in lieu of the original to avoid the presumption of alteration.

In proposing the presumption of alteration, the Board did not intend to eliminate the opportunity for banks to provide additional evidence and engage in further litigation. The presumption was intended to create a uniform starting point that recognized the operational realities of check fraud in the absence of evidence. The comments requesting that the Board specify who can make the determination, what types of evidence would be adequate for overcoming the presumption of alteration, and the time limitation within which the original check must be provided would be matters for the court or other dispute resolution process and are outside of the scope of this final rule. A scanned image of the original check would generally provide no better evidentiary value than a substitute check or an electronic check, and thus the final rule does not permit such an image to overcome the presumption of alteration. Accordingly, the Board has adopted provisions on the rebuttal of the presumption in § 229.38(i)(2) substantially as proposed.

Use of term “forgery.” One Federal Reserve Bank commenter suggested that the Board use the phrase “issued without the account holder's authorization” instead of the term “forgery.” The Federal Reserve Bank commenter stated that under the UCC, the payor bank is generally liable for paying a check if the issuance of the check was not authorized by the accountholder, whether there is a forged drawer's signature on the check or not.

In the Board's final rule, the Board has adopted this suggestion. The presumption will apply to disputes as to whether a substitute check or electronic check contains an alteration or is derived from an original check that was issued with an unauthorized signature of the drawer. The Board believes that adopting the phrase “issued with an unauthorized signature of the drawer” appropriately covers the entire scope of the payer bank's liability for paying an item that is not properly payable because the accountholder has not authorized the issuance of the item. As stated in relation to “alteration,” the Board notes in the commentary that terms that are not defined in § 229.2, such as “unauthorized signature,” have the meanings set forth in the UCC and provides examples of unauthorized signatures.

Other topics. The Board also received comments on a variety of other topics. Two commenters, including the group letter, suggested that the Board clarify that the presumption also applies to alteration of the electronic image and not just the original check. The group letter also requested that the Board clarify that the parties should have the ability to vary the presumption to the maximum extent permitted under § 229.37. In the final rule, the Board has clarified in the commentary that the alteration claim may be related to the original check or the electronic or substitute check. The Board also included in the commentary a sentence stating that the presumption of alteration may be varied by agreement to the extent permitted under § 229.37.

One commenter requested that the Board ensure that the presumption can be applied only in disputes between banks, and not disputes between banks and customers. In the final rule, the Board has specified in § 229.38(i)(1) that the presumption applies to disputes between banks.

The group letter requested that the Board clarify that the presumption applies to disputes where the loss allocation rules for bank and non-bank parties are established under private contract or by laws other than Regulation CC and the UCC, such as private presentment arrangements or Federal regulations that apply to Treasury checks. As stated earlier, the intent behind the presumption of alteration is to create a uniform starting point in the absence of evidence under Federal and State laws. As stated above, the final rule does not prevent banks from varying the presumption of alteration by agreement to the extent permitted under § 229.37. However, the Board did not intend to override any other Federal statute or regulation, such as U.S. Treasury rules governing Treasury checks, to the extent that they already address the issue that the presumption is intended to address. In the final rule, the Board has indicated that the presumption applies in the absence of any Federal statute or regulation to the contrary.

One commenter requested that the Board require banks that receive original checks to preserve them for a set period of time. A retention requirement for physical checks would impose a record-keeping and storage burden for banks. The Board believes a more appropriate approach is for the rule to establish responsibilities with respect to the handling of checks and for banks to determine their own physical check retention policies based on their assessment of risk.

The Board conducts a competitive impact analysis when it considers an operational or legal change, if that change would have a direct and material adverse effect on the ability of other service providers to compete with the Federal Reserve in providing similar services due to legal differences or due to the Federal Reserve's dominant market position deriving from such legal differences. All operational or legal changes having a substantial effect on payments-system participants will be subject to a competitive-impact analysis, even if competitive effects are not apparent on the face of the proposal. If such legal differences exist, the Board will assess whether the same objectives could be achieved by a modified proposal with lesser competitive impact or, if not, whether the benefits of the proposal (such as contributing to payments-system efficiency or integrity or other Board objectives) outweigh the materially adverse effect on competition.12

The Board does not believe that the amendments to Regulation CC will have a direct and material adverse effect on the ability of other service providers to compete effectively with the Reserve Banks in providing similar services due to legal differences. The amendments would apply to the Reserve Banks and private-sector service providers alike and would not affect the competitive position of private-sector banks vis-à-vis the Reserve Banks.

In accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the Board may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a valid Office of Management and Budget (OMB) control number. The Board reviewed the final rule under the authority delegated to the Board by the OMB and determined that it contains no collections of information under the PRA.13 Accordingly, there is no paperwork burden associated with the rule.

An initial regulatory flexibility analysis (IRFA) was included in the proposal in accordance with section 3(a) of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq. (RFA). In the IRFA, the Board requested comment on the effect of the proposed rule on small entities and on any significant alternatives that would reduce the regulatory burden on small entities. The Board did not receive any comments. The RFA requires an agency to prepare a final regulatory flexibility analysis (FRFA) unless the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. In accordance with section 3(a) of the RFA, the Board has reviewed the final regulation. Based on its analysis, and for the reasons stated below, the Board certifies that the rule will not have a significant economic impact on a substantial number of small entities.

The final rule will apply to all depository institutions regardless of their size.14 Pursuant to regulations issued by the Small Business Administration (13 CFR 121.201), a “small banking organization” includes a depository institution with $550 million or less in total assets. Based on 2017 call report data, there are 9,631 depository institutions that have total domestic assets of $550 million or less and thus are considered small entities for purposes of the RFA. The presumption of alteration shifts the burden to the bank that warrants that a check has not been altered, which could be a depositary bank or collecting bank. In order to overcome the presumption of alteration, a depositary bank or collecting bank must prove by a preponderance of evidence either the substitute check or electronic check does not contain an alteration, or that the substitute check or electronic check is derived from an original check that was issued with an unauthorized signature of the drawer. Under the final rule, the presumption of alteration shall cease to apply if the original check is made available for examination by all parties involved in the dispute. Furthermore, the presumption of alteration will not apply if the paying bank received the original check from which the substitute check or electronic check was derived.

A depositary bank or collecting bank that destroys all original checks after truncation may incur additional risk, as it may not be able to overcome the presumption of alteration. The Board expects the additional risk to be minimal. According to Federal Reserve data, only 0.015% of forward items collected through the Reserve Banks were returned due to a claim of alteration or forgery in March 2018. The Board expects depositary banks and collecting banks to weigh the costs and benefits of destroying or retaining original checks, such as for large dollar amounts, so that the presumption of alteration will not apply. In their roles as paying banks, however, those same banks could benefit from the presumption. Additionally, a depositary bank that permits remote deposit capture may also incur additional risk, as it may not be able to obtain the original check to overcome the presumption of alteration. The Board expects depositary banks to examine their protocols for remote deposit capture, such as limiting the amount of money that may be deposited remotely. The Board expects that depository institutions will benefit from a uniform rule when there is an absence of evidence over whether a check has been altered or forged and may have reduced litigation and dispute resolution costs. The Board does not expect the rule to have a significant economic impact on a substantial number of small entities.

For the reasons set forth in the preamble, the Board to amends 12 CFR part 229 as follows:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2018-02-14, Amendment 39-19167 (83 FR 3263, January 24, 2018), (“AD 2018-02-14”). AD 2018-02-14 applied to certain Honeywell TPE331 turboprop and TSE331 turboshaft engines. The NPRM published in the Federal Register on June 25, 2018 (83 FR 29479). The NPRM was prompted by comments to revise the applicability and required actions of AD 2018-02-14 to include the TPE331-12B engine model, correct certain TPE engine model typographical errors, and to allow certain weld repair procedures. The NPRM proposed to continue to require the inspection and replacement of the affected combustion chamber case assembly on certain TPE331 and TSE331 engines. The NPRM also proposed to revise the Applicability to include the TPE331-12B engine model and the related inspection action, correct references to the TPE331-43-A, -43-BL, -47-A, -55-B, and -61-A engine models, and to allow weld repair procedures to the applicable combustion chamber case assemblies provided those procedures are approved by the Manager, Los Angeles ACO Branch. We are issuing this AD to address the unsafe condition on these products.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

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

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

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

We reviewed Honeywell Service Bulletin (SB) TPE331-72-2178, Revision 0, dated May 3, 2011 and Honeywell SB TPE331-72-2179, Revision 0, dated May 3, 2011. Honeywell SB TPE331-72-2178, Revision 0, describes procedures for inspection and removal of the affected combustion chamber case assemblies installed on all affected engines except for the TPE331-12B engine model. Honeywell SB TPE331-72-2179, Revision 0, describes procedures for inspection and removal of the affected combustion chamber case assemblies installed on the TPE331-12B engine model. 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.

We reviewed Honeywell SBs TPE331-72-2228, Revision 0, dated June 12, 2014; TPE331-72-2230, Revision 0, dated June 19, 2014; TPE331-72-2218, Revision 2, dated February 18, 2017; TPE331-72-2244, Revision 2, dated March 20 2017; TPE331-72-2235, Revision 2, dated February 18, 2017; TPE331-72-2281, Revision 0, dated July 22, 2016; TPE331-72-2294, Revision 0, dated December 22, 2016; TPE331-72-2231, Revision 1, dated August 1, 2017; and TSE331-72-2245, Revision 0, dated November 11, 2016. These SBs provide guidance on replacement of the affected combustion chamber case assemblies.

We estimate that this AD affects 5,644 engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary replacements that would be required based on the results of the inspection. We estimate that 158 engines will need this replacement during the first year of inspection.

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

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

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.

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

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Defense and Space S.A. Model C-212-CB, C-212-CC, C-212-CD, C-212-CE, and C-212-DF airplanes. The NPRM published in the Federal Register on June 25, 2018 (83 FR 29476). The NPRM was prompted by reports of failures of the rudder pedal control system support. The NPRM proposed to require repetitive detailed visual inspections of the rudder pedal control system support box and shaft and applicable corrective actions.

We are issuing this AD to address failure of the rudder pedal control system, which could result in reduced controllability of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0051, dated March 2, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Defense and Space S.A. Model C-212-CB, C-212-CC, C-212-CD, C-212-CE, and C-212-DF airplanes. The MCAI states:

Corrective actions include obtaining corrective actions approved by the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Airbus Defense and Space S.A.'s EASA Design Organization Approval (DOA); and accomplishing the corrective actions within the compliance time specified therein. You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0552.

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

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

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

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

Airbus Defense and Space S.A. has issued Airbus Alert Operators Transmission AOT-C212-27-0002, dated February 28, 2018. This service information describes procedures for repetitive detailed visual inspections of the rudder pedal control system support box and shaft. 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.

We estimate that this AD affects 36 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes. The NPRM published in the Federal Register on May 25, 2018 (83 FR 24233). The NPRM was prompted by a report of cracks, in various directions, in the lower portion of a MLG piston. The NPRM proposed to require a detailed visual inspection of the MLG, and replacement if necessary.

We are issuing this AD to address cracks in the lower portion of the MLG, which could lead to MLG failure during the landing roll-out, and possibly result in damage to the airplane and injury to occupants.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0163, dated September 4, 2017; corrected September 5, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0448.

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

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

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

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

Fokker Services B.V. has issued Fokker Service Bulletin SBF100-32-169, dated August 23, 2017. The service information describes procedures for a detailed visual inspection of the MLG, and replacement if necessary. 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.

We estimate that this AD affects 5 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary replacement that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need this replacement:

On May 9, 2018, at 83 FR 21194, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 by adding an AD that would apply to Airbus Helicopters Model AS-365N2, AS 365 N3, EC 155B, EC155B1, SA-365N1, and SA-366G1 helicopters.

The NPRM proposed to require a repetitive tap inspection of the aft fuselage outer skin for disbonding. Depending on the inspection results, the NPRM proposed to require reducing the compliance time interval of the tap inspections or repairing or replacing the panel to terminate the shorter compliance time interval. The NPRM also proposed to require a repetitive cleaning of the aft fuselage outer skin to visually inspect for distortion, wrinkling, and corrosion. Depending on the visual inspection results, the NPRM proposed to require an additional tap inspection of the area. The proposed requirements were intended to detect disbonding of the aft fuselage outer skin, which could result in loss of aft fuselage structural integrity and subsequent loss of control of the helicopter.

The NPRM was prompted by AD No. 2017-0165, dated September 5, 2017 (EASA AD 2017-0165), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for the Airbus Helicopters Model SA 365 N1, AS 365 N2, AS 365 N3, SA 366 G1, EC 155 B and EC 155 B1 helicopters. EASA advises of several reports of aft fuselage (baggage compartment area) outer skin disbonding found during a 600-hour inspection. EASA advises that most of the reports of disbonding occurred on Model EC 155 helicopters and may occur in the same area on Model AS 365, SA 365, and SA 366 helicopters due to design similarity. According to EASA, the cause of the disbonding has not yet been determined and the investigation is continuing. Airbus Helicopters states possible causes that are being considered include exhaust gas heat from the exhaust pipes and environmental conditions. EASA states that this condition, if not detected and corrected, could reduce the structural integrity of the aft fuselage, possibly affecting safe flight and landing.

To address this unsafe condition, EASA AD 2017-0165 requires a repetitive tap inspection of the aft fuselage outer skin for disbonding, a repetitive visual inspection of the aft fuselage outer skin for distortion, wrinkling, and corrosion, and contacting Airbus Helicopters if there is any disbonding.

We gave the public the opportunity to participate in developing this AD, but we did not receive any comments on the NPRM.

These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.

We consider this AD to be an interim action. If final action is later identified, we might consider further rulemaking then.

If there is disbonding within the allowable limit, the EASA AD specifies reporting the inspection results to Airbus Helicopters, whereas this AD does not. If there is disbonding that exceeds the allowable limit, the EASA AD specifies contacting Airbus Helicopters for approved skin panel repair or replacement instructions, whereas this AD requires repairing or replacing the panel instead.

We reviewed Airbus Helicopters Alert Service Bulletin (ASB) No. AS365-05.00.77 for Model AS365 N, N1, N2, and N3 and non-FAA-certificated Model AS365 F, Fs, Fi, K, and K2 helicopters; ASB No. SA366-05.48 for Model SA366 G1 and non-FAA-certificated Model SA366 GA helicopters; and ASB No. EC155-05A033 for Model EC155 B and B1 helicopters, all Revision 0 and all dated July 21, 2017. This service information specifies repetitive tap and visual inspections between aft fuselage outer skin frames X4630 and X6630 and defines the allowable limit of disbonding for this area. If there is distortion, wrinkling, or corrosion, this service information specifies performing a tap inspection. If there is disbonding within the allowable limit, this service information specifies reporting the inspection results to Airbus Helicopters and performing the recurring tap inspection at a shorter compliance time interval. If there is disbonding that exceeds the allowable limit, this service information specifies contacting Airbus Helicopters for repair before further flight.

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.

We estimate that this AD affects 46 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD.

Tap inspecting the aft fuselage outer skin takes about 3 work-hours for an estimated cost of $255 per helicopter and $11,730 for the U.S. fleet per inspection cycle. Visually inspecting the aft fuselage outer skin takes about 0.3 work-hour for an estimated cost of $26 per helicopter and $1,196 for the U.S. fleet per inspection cycle. Repairing a panel takes about 5 work-hours and parts cost about $500 for an estimated cost of $925. Replacing a panel takes about 10 work-hours and parts cost about $20,000 for an estimated cost of $20,850.

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

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on helicopters 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) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

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

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

History

The FAA published a final rule in the Federal Register for Docket No. FAA-2018-0139 (83 FR 37422, August 1, 2018), amending Class E airspace at Lyons-Rice County Municipal Airport, Lyons, KS. Subsequent to publication, the FAA identified a clerical error that the word “County” was omitted from the airport name in the preamble, as well as in the header of the legal description. This correction changes the airport name in the Summary section, History section, and Rules section, and the legal description from Lyons-Rice Municipal Airport” to read “Lyons-Rice County Municipal Airport”.

Accordingly, pursuant to the authority delegated to me, in the Federal Register of August 1, 2018 (83 FR 37422) FR Doc. 2018-16363, Amendment of Class E Airspace; Lyons, KS, is corrected as follows:

Availability of Rulemaking Documents

You may obtain an electronic copy using the internet by:

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

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

(3) Accessing the Government Printing Office's web page at http://www.gpoaccess.gov/fr/index.html.

You also may obtain a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking.

The FAA historically limited the number of arrivals and departures at JFK through the implementation of the High Density Rule (HDR).1 By statute enacted in April 2000, operations were added at JFK through provisions permitting exemptions for new entrant carriers and flights to small and non-hub airports.2 The HDR's applicability to JFK operations terminated as of January 1, 2007.3 With the AIR-21 exemptions and the HDR phase-out, some air carriers serving JFK significantly increased their scheduled operations throughout the day and retimed existing flights. This resulted in scheduled demand in peak hours that exceeded the airport's capacity and caused significant congestion and delay. In January 2008, the FAA placed temporary limits on scheduled operations at JFK to mitigate persistent congestion and delays at the airport.4 The FAA extended the January 18, 2008, Order placing temporary limits on scheduled operations at JFK on October 7, 2009, April 4, 2011, May 14, 2013, March 26, 2014, and May 24, 2016, as corrected June 21, 2016.5

Under the Order, as amended, the FAA (1) maintains the current hourly limits of 81 scheduled operations at JFK during the peak period; (2) imposes an 80 percent minimum usage requirement for Operating Authorizations (OAs) 6 with defined exceptions; (3) provides a mechanism for withdrawal of OAs for FAA operational reasons; (4) establishes procedures to allocate withdrawn, surrendered, or unallocated OAs; and (5) allows for trades and leases of OAs for consideration for the duration of the Order.

The reasons for issuing the Order have not changed appreciably since it was implemented. Demand for access to JFK remains high and the average weekday hourly flights in the busiest hours are generally at the limits under this Order. The FAA has reviewed the on-time and other performance metrics for the past two years in the peak months—May to August 2017 and 2018—and generally found continuing improvements relative to the same period in 2008. Year over year trends likewise show improved performance overall.7 However, the FAA has determined that the operational limitations imposed by this Order remain necessary. Without the operational limitations imposed by this Order, the FAA expects severe congestion-related delays would occur at JFK and at other airports throughout the National Airspace System (NAS). The FAA will continue to monitor performance and runway capacity at JFK to determine if changes are warranted. The FAA, in coordination with the Office of the Secretary of Transportation (OST), will also continue to consider potential rulemaking to codify policies for slot-controlled airports.

The FAA has received specific proposals for policy changes that would necessitate amending the Orders. For example, several carriers have requested a simplified process for the administrative management of temporary slot transfers, whereby the marketing and operating carriers would not be required to formally transfer slots for operation by carriers under common marketing control and whereby the slot holder could choose whether the holder or the operator would be responsible for reporting slot usage to the FAA. The FAA is considering proposing this and other potential changes in a future action taken on the LGA and JFK Orders.

The FAA is also reviewing the operational performance trends at JFK, assessing runway capacity, and modeling the impact of various demand scenarios on projected delays in light of the overall improved performance previously discussed. Preliminary information indicates that operational performance continues to trend upward, particularly when compared to performance when the FAA adopted the JFK scheduling limits in 2008. However, departure performance remains a concern. There is an indication of increased runway throughput in arrival capacity, while the departure capacity has remained fairly constant. The FAA is evaluating the schedule limits and operational performance goals to determine whether additional operations may be added to the current hourly limit while still managing delays at acceptable levels and is evaluating potential environmental impacts associated with such a change. The FAA is also evaluating the impacts of ongoing construction at JFK, which is expected to continue through the summer 2019 scheduling season. The Orders expire at the end of the current summer scheduling season and carriers are already planning winter schedules. There is insufficient time to publish for comment proposed amendments, adjudicate comments, and issue a final Order before the Orders expire. The FAA has therefore determined to proceed with an extension of the Orders, without policy changes, to meet current operational needs and allow time to further develop any proposed changes to the Orders. The FAA, in coordination with OST, would publish for comment any proposed policy changes for JFK and LGA in a separate notice as soon as practicable.

Accordingly, the FAA is extending the expiration date of this Order until October 24, 2020. This expiration date coincides with the extended expiration date for the Order limiting scheduled operations at LGA, as also extended by action published in today's Federal Register. The FAA finds that notice and comment procedures under 5 U.S.C. 553(b) are impracticable, unnecessary, and contrary to the public interest, as carriers have begun planning schedules for the winter 2018/2019 season and no significant substantive changes are included in this action. For these reasons, the FAA also finds that it is impracticable and contrary to the public interest to delay the effective date of this action under 5 U.S.C. 553(d).

The FAA has received multiple inquiries (both informal and formal) recently from carriers as well as the Port Authority of New York and New Jersey requesting information on the FAA's current process for establishing and allocating available capacity. The Order is the equivalent of limited local rules as referenced in the Worldwide Slot Guidelines (WSG) published by the International Air Transport Association and takes precedence over the WSG where there are differences. At JFK, the FAA follows the WSG in many respects such as new entrant priority 8 and consideration of schedule constraints such as terminal, gate, parking, customs and immigration, curfews, and similar operational factors.

Under current rules, the FAA uses an approach adapted from the WSG for reallocating available OAs at JFK.9 This includes applying priorities for new entrant airlines, the retiming of historic slots, and allocation of remaining available capacity. The FAA also considers factors such as delays or operational performance in certain hours or periods when the allocation is above the limits in adjacent hours. In general, the FAA reviews retiming requests to move from less congested hours to more congested hours in a similar manner to a new request. New entrants may receive a higher priority in the case of competing requests. The FAA also maintains a waiting list of carrier requests that could not be accommodated in prior scheduling seasons, if requested by the initial submission deadline, and prioritizes such requests over requests for new slots submitted after the initial submission deadline. Carriers that obtain temporary slot swaps to meet their operational needs do not lose priority on the waiting list for permanent slot allocations. The priorities considered by the FAA under established policy and practice when allocating OAs on a permanent or temporary basis are set forth in new paragraph 11 of the Amended Order.

The Order, as amended, is recited below in its entirety.

1. This Order continues the process for assigning operating authority to conduct an arrival or a departure at JFK during the affected hours to any certificated U.S. air carrier or foreign air carrier. The FAA will not assign operating authority under this Order to any person or entity other than a certificated U.S. or foreign air carrier with appropriate economic authority and FAA operating authority under 14 CFR part 121, 129, or 135. This Order applies to the following:

a. All U.S. air carriers and foreign air carriers conducting scheduled operations at JFK as of the date of this Order, any U.S. air carrier or foreign air carrier that operates under the same designator code as such a carrier, and any air carrier or foreign-flag carrier that has or enters into a codeshare agreement with such a carrier.

b. All U.S. air carriers or foreign air carriers initiating scheduled or regularly conducted commercial service to JFK while this Order is in effect.

c. The Chief Counsel of the FAA, in consultation with the Vice President, System Operations Services, is the final decision maker for determinations under this Order.

2. This Order governs scheduled arrivals and departures at JFK from 6 a.m. through 10:59 p.m., Eastern Time, Sunday through Saturday.

3. This Order takes effect on March 30, 2008, and will expire October 24, 2020.

4. Under the authority provided to the Secretary of Transportation and the FAA Administrator by 49 U.S.C. 40101, 40103 and 40113, we hereby order that:

a. No U.S. air carrier or foreign air carrier initiating or conducting scheduled or regularly conducted commercial service at JFK may conduct such operations without an Operating Authorization assigned by the FAA.

b. Except as otherwise authorized by the FAA based on historic precedence, scheduled U.S. air carrier and foreign air carrier arrivals and departures will not exceed 81 per hour from 6 a.m. through 10:59 p.m., Eastern Time.

c. The Administrator may change the limits if he determines that capacity exists to accommodate additional operations without a significant increase in delays.

5. For administrative tracking purposes only, the FAA will assign an identification number to each Operating Authorization.

6. A carrier holding an Operating Authorization may request the Administrator's approval to move any arrival or departure scheduled from 6 a.m. through 10:59 p.m. to another half hour within that period. Except as provided in paragraph 7, the carrier must receive the written approval of the Administrator, or his delegate, prior to conducting any adjusted arrival or departure. All requests to move an allocated Operating Authorization must be submitted to the FAA Slot Administration Office, facsimile (202) 267-7277 or email [email protected], and must come from a designated representative of the carrier. If the FAA cannot approve a carrier's request to move a scheduled arrival or departure, the carrier may then apply for a trade in accordance with paragraph 7.

7. For the duration of this Order, a carrier may enter into a lease or trade of an Operating Authorization to another carrier for any consideration. Notice of a trade or lease under this paragraph must be submitted in writing to the FAA Slot Administration Office, facsimile (202) 267-7277 or email [email protected], and must come from a designated representative of each carrier. The FAA must confirm and approve these transactions in writing prior to the effective date of the transaction. The FAA will approve transfers between carriers under the same marketing control up to five business days after the actual operation, but only to accommodate operational disruptions that occur on the same day of the scheduled operation. The FAA's approval of a trade or lease does not constitute a commitment by the FAA to grant the associated historical rights to any operator in the event that slot controls continue at JFK after this order expires.

8. A carrier may not buy, sell, trade, or transfer an Operating Authorization, except as described in paragraph 7.

9. Historical rights to Operating Authorizations and withdrawal of those rights due to insufficient usage will be determined on a seasonal basis and in accordance with the schedule approved by the FAA prior to the commencement of the applicable season.

a. For each day of the week that the FAA has approved an operating schedule, any Operating Authorization not used at least 80% of the time over the time-frame authorized by the FAA under this paragraph will be withdrawn by the FAA for the next applicable season except:

i. The FAA will treat as used any Operating Authorization held by a carrier on Thanksgiving Day, the Friday following Thanksgiving Day, and the period from December 24 through the first Saturday in January.

ii. The Administrator of the FAA may waive the 80% usage requirement in the event of a highly unusual and unpredictable condition which is beyond the control of the carrier and which affects carrier operations for a period of five consecutive days or more.

b. Each carrier holding an Operating Authorization must forward in writing to the FAA Slot Administration Office a list of all Operating Authorizations held by the carrier along with a listing of the Operating Authorizations and:

i. The dates within each applicable season it intends to commence and complete operations.

A. For each winter scheduling season, the report must be received by the FAA no later than August 15 during the preceding summer.

B. For each summer scheduling season, the report must be received by the FAA no later than January 15 during the preceding winter.

ii. The completed operations for each day of the applicable scheduling season:

A. No later than September 1 for the summer scheduling season.

B. No later than January 15 for the winter scheduling season.

iii. The completed operations for each day of the scheduling season within 30 days after the last day of the applicable scheduling season.

10. In the event that a carrier surrenders to the FAA any Operating Authorization assigned to it under this Order or if there are unallocated Operating Authorizations, the FAA will determine whether the Operating Authorizations should be reallocated. The FAA may temporarily allocate an Operating Authorization at its discretion. Such temporary allocations will not be entitled to historical status for the next applicable scheduling season under paragraph 9.

11. The FAA considers the following factors and priorities in allocating Operating Authorizations, which the FAA has determined are available for reallocation—

a. Historical requests for allocation of an Operating Authorization in the same time;

b. New entrant status;

c. Retiming of historic Operating Authorizations;

d. Extension of a seasonal Operating Authorization to year-round service;

e. The effective period of operation;

f. The extent and regularity of intended use with priority given to year-round services;

g. The operational impacts of scheduled demand, including the hourly and half-hour demand and the mix of arrival and departure flights; and

h. Airport facility constraints.

Any carrier that is not approved for allocation of an Operating Authorization by the FAA may request it be placed on a waiting list for consideration should an Operating Authorization in the requested time become available during that scheduling season.

12. If the FAA determines that an involuntary reduction in the number of allocated Operating Authorizations is required to meet operational needs, such as reduced airport capacity, the FAA will conduct a weighted lottery to withdraw Operating Authorizations to meet a reduced hourly or half-hourly limit for scheduled operations. The FAA will provide at least 45 days' notice unless otherwise required by operational needs. Any Operating Authorization that is withdrawn or temporarily suspended will, if reallocated, be reallocated to the carrier from which it was taken, provided that the carrier continues to operate scheduled service at JFK.

13. The FAA may enforce this Order through an enforcement action seeking a civil penalty under 49 U.S.C. 46301(a). The FAA also could file a civil action in U.S. District Court, under 49 U.S.C. 46106, 46107, seeking to enjoin any carrier from violating the terms of this Order.

14. The FAA may modify or withdraw any provision in this Order on its own or on application by any carrier for good cause shown.

Background

On September 30, 2013, the Department published a notice of proposed rulemaking (NPRM) in the Federal Register, 78 FR 59880, in which it addressed the following areas: (1) An NTSB recommendation for air taxis and commuter air carriers to make certain disclosures and a prohibition on certain practices by air taxis and commuter air carriers; (2) the creation of a new class of indirect air carrier, a requirement for these entities to make certain disclosures, and a prohibition on certain practices by these entities; (3) the authority of indirect air carriers to engage in sale of air transportation related to air ambulance services; and (4) a clarification regarding air services performed under contract with the Federal Government.

The Department's proposal to act in response to the NTSB recommendation built upon an advance notice of proposed rulemaking (ANPRM) published in the Federal Register on January 26, 2007, 72 FR 3773. The Department received 23 comments in response to the ANPRM, which were summarized in the NPRM.

The Department received 21 comments in response to the NPRM, including one comment representing the views of multiple entities. Of these, 18 comments were from members of the industry, including direct and indirect air carriers, as well as associations representing both direct and indirect air carriers and other aviation businesses. Specifically, these comments represented the views of the Air Charter Association, the Air Medical Operators Association, Air Methods, the Association of Air Medical Services, Blue Feather Charter, Chapman Freeborn, Corporate Flight Management, CSI Aviation, Flex Jet, Flight Options, Jet Logistics, Jet Solutions, the National Air Carrier Association, the National Air Transportation Association (NATA), the National Business Aviation Association (NBAA), Premier Aviation Charter, Public Charters Inc., Sentient Jet, Sentient Jet Charter, and Ultimate Jetcharters. One comment was from Consumers Union, a consumer rights organization; one comment was from the American Society of Travel Agents (ASTA), an association representing travel agents; and another comment was made anonymously. Three comments addressed the NTSB recommendation, 17 addressed the creation of a new class of indirect air carrier, six addressed air ambulance services, and one addressed air services performed under contract with the Federal Government.

In general, almost all commenters supported the proposals regarding the NTSB recommendation, the creation of a new class of indirect air carrier, and codifying the exemption authority for air ambulance services. These comments also provided suggested changes to the Department's proposals. The one comment regarding air services performed under contract with the Federal Government objected to the Department's proposal on that topic in its entirety. The section-by-section analysis will describe each provision of the final rule and respond to the comments received.

The NPRM: In the NPRM, the Department proposed to recognize a class of indirect air carrier to be named “air charter brokers” that are permitted as principals in their own right to engage in single entity charter air transportation aboard large and small aircraft pursuant to exemptions from certain provisions of Subtitle VII of Title 49 of the United States Code. The Department proposed allowing this class of indirect air carrier to self-identify, rather than establish a formal licensing or registration scheme. The Department solicited comment on the establishment of such a scheme, particularly whether one should apply to non-U.S. citizen air charter brokers. In addition, the Department sought comment on whether “single entity charter” should include individuals who self-aggregate to form a single entity charter and whether including self-aggregated groups in this definition would require a change to the definition of a single entity charter in 14 CFR 212.2.

Comments: The comments received by DOT demonstrated general support for the recognition of a new class of indirect air carrier. There was some support for expanding the definition of “air charter broker” to include “bona fide agents.” NBAA noted that charter customers using the services of an air charter broker acting as an agent were no less deserving of consumer protections than customers of air charter brokers acting as indirect air carriers. Further, NATA encouraged the Department to harmonize the regulatory language regarding disclosures required by air taxi operators/commuter air carriers and by air charter brokers.

Support for a registration scheme, on the other hand was mixed. Entities that favored the creation of a registry commented that self-identification might not adequately protect consumers because unscrupulous air charter brokers could easily change names, that a registry could be used to ensure minimum standards among air charter brokers (e.g., a certain level of insurance or bonding), and that a registry would provide consumers and DOT with contact information for and basic information about the regulated entities. Some commenters stated that such a registry would be inexpensive to maintain, while others stated it would be costly to maintain. Of the comments in favor of the establishment of a registration scheme, some favored requiring only U.S.-citizen air charter brokers to register, others favored requiring only foreign-citizen air charter brokers to register, and still others favored requiring all air charter brokers to register.

The Department received over a half-dozen comments regarding the proposed definition of “single entity charter,” all but one of which supported the inclusion of individuals who self-aggregate to form a single entity. NBAA proposed making clear that this class of indirect air carrier does not include “fractional ownership program managers” and “in-house corporate travel departments,” and proposed definitions of those two terms. The Air Charter Association of North America expressed concern that the proposed definition was overly broad and undermined consumer protections, including those found in DOT's rule governing public charters, 14 CFR part 380.

DOT Response: The Department is finalizing its proposed rule to recognize an “air charter broker” class of indirect air carrier. Because many commenters raised a valid point that charter customers deserve the same consumer protections whether they use air charter brokers who are acting as indirect air carriers or as bona fide agents, the Department has decided to widen its definition of air charter broker to include bona fide agents and, further, to define that term by regulation. Based on the multiple comments received, this is a natural outgrowth of the NPRM. The Department is also harmonizing, to the extent practicable, the regulatory language regarding disclosures required by air taxi operators/commuter air carriers and by air charter brokers.

The Department has decided not to create a registry of air charter brokers, either U.S. or non-U.S. citizens. After thoroughly reviewing the arguments raised in favor of and in opposition to such a registry, DOT has determined that at this time the potential benefits are ill-defined. The Department may revisit this issue in the future should the need become apparent. The Department notes, however, that this rulemaking does not preclude voluntary registration or “certification” through third parties. For example, air charter brokers may determine that voluntary membership in an association or organization provides the same benefits cited in the comments favoring the creation of a DOT-run registry.

Finally, recognizing the support of most commenters to including self-aggregated individuals within the definition of “single entity charter,” DOT adopts its proposed definition, but limits the ability of individuals to form self-aggregated groups only to flights to be operated using small aircraft. Thus, there is no need to change the definition of single entity charter in 14 CFR 212.2, since that part is not applicable to any flights performed by a commuter air carrier, air taxi operator, or certificated air carrier operating “small aircraft” under Part 298. Further, it acknowledges concerns, including those of the Air Charter Association of North America that the definition as proposed in the NPRM unnecessarily broadens the definition of a single entity charter and could undermine the consumer protections in the Department's rule governing public charters, 14 CFR part 380. In addition, the Department is making a non-substantive change by removing the word “passenger” from its “air charter broker” definition so that it references “single entity charter,” a term defined by regulation, rather than “single entity passenger charter.” The Department has decided not to accept NBAA's proposals regarding “fractional ownership membership program managers” and “in-house corporate travel departments” because those two entities do not provide common carriage air transportation and are therefore already excluded from the scope of this rule.

The NPRM: In the NPRM, the Department proposed to require that an air charter broker disclose clearly and conspicuously in any solicitation materials its status and the fact that it is not a direct air carrier and will use an authorized direct air carrier to provide the transportation it offers. The Department also proposed requiring written disclosure of (1) the corporate name of the direct air carrier in operational control of the aircraft and any other names in which the carrier holds itself out to the public (as recommended by the NTSB); (2) the capacity in which the air charter broker is acting; (3) the existence of any corporate or business relationships with a particular direct air carrier; (4) the aircraft type; (5) the total cost of air transportation paid to the air charter broker; (6) the existence of any other amount charged by third parties for which the charterer will be responsible for paying directly; and (7) the existence or absence of liability insurance held by the air charter broker covering the charterer and passengers and property on the charter flight, and the monetary limits of such insurance. Further, the Department sought public comment on whether any additional disclosures should be required.

Under the proposed rule, any required disclosure must be made within a “reasonable” time, defined as enough time for the charterer to make an informed decision as to whether to accept the change. Failure to provide notice within a “reasonable” time would entitle the consumer the option of receiving a full refund. The Department sought comment on whether to provide a specific time frame for the disclosures and whether to require some sort of confirmation of receipt of the disclosures. In addition, DOT solicited comment on whether the refund requirements of 14 CFR part 374 should apply to air charter brokers.

Comments: The comments received in response to the disclosure proposals ran the gamut, with some support for and some objection to each of the seven proposed disclosures. When expressing support for a disclosure, commenters generally cited a consumer need to possess that information. When expressing opposition to a disclosure, commenters generally asserted that consumers would not benefit from that information. In particular, many commenters noted that consumers need not learn the identity of the aircraft's owner so long as they know the name of the direct air carrier. In addition, some commenters stated that because most customers of air charter brokers are sophisticated consumers with significant bargaining power, the proposed disclosures would be better handled through a negotiated contract. In response to the disclosure of insurance (or lack thereof), several commenters suggested that DOT not only require disclosure, but require that air charter brokers maintain a certain level of insurance. Finally, NATA requested that the Department clarify the meaning of “any corporate or business relationship between the air charter broker and the direct air carrier.” The NBAA further requested that the disclosure of such relationships be limited to those “which may have a substantial bearing upon the air charter broker's selection of a direct air carrier.” Finally, Chapman Freeborn Airchartering questioned at what level of detail any required itemization must be made.

Both industry and ASTA provided comments against establishing a fixed time in which air charter brokers must disclose any changes in the air transportation arrangements. These comments explained that it would be an unworkable requirement, as some changes could be very last-minute and thus too late to comply with the prescribed time frame while others could become known far in advance thus rendering the time frame unnecessarily restrictive.

Most commenters expressed opposition to requiring that air charter brokers obtain some form of confirmation of the receipt of any changes to the required disclosures. These commenters stated that obtaining confirmation would not be practicable, as some consumers may simply decline to confirm receipt, and would create an undue burden for air charter brokers forced to obtain one.

Comments regarding DOT's proposal to subject air charter brokers to the refund requirements of 14 CFR part 374 indicated general disapproval. Most commenters wanted parties to negotiate refund provisions in the original contract. These commenters noted that customers of air charter brokers are sophisticated parties with significant bargaining power, that Part 374 may prove unworkable in the air charter broker context, and that DOT should not substitute its judgment for that of individuals in the marketplace. Several suggested that DOT could require refund provisions be disclosed in the original contract rather than impose Part 374 by default. The minority of commenters who expressed support for this portion of the NPRM stated that consumers of air charter broker services deserve the same protections as consumers of other forms of air transportation.

DOT Response: Of the seven proposed disclosures, the Department is requiring three and making three others required upon request. Having considered the comments both for and against the proposal, the Department believes that on the whole consumers, regardless of sophistication level, would benefit from an increased amount of information. The Department is not requiring that the type of the aircraft be disclosed since it believes that information is already a part of most charter negotiations. The Department is clarifying what type of “corporate or business relationship between the air charter broker and the direct air carrier” must be disclosed upon request by adding the example of a pre-existing contract between the two entities. Further, the Department is adopting in part NBAA's suggestion that this definition be further refined by adding language that the relationship must have a “bearing” on the transaction. Finally, the Department is changing the language of the disclosure upon request relating to costs to make clear that detailed itemization is not required.

The Department is not requiring that air charter brokers maintain a certain level of insurance. The Department is aware that most air charter brokers already maintain a certain level of insurance as a good business practice. Establishing a minimum level of insurance would therefore not add additional protection for consumer funds.

The Department agrees with industry and ASTA that regulating the time frame in which disclosures must be made is impracticable, for the reasons provided by those commenters. Therefore, the Department adopts the “within a reasonable time after such information becomes available” standard as proposed in the NPRM. The Department has clarified in the final rule that it is within a reasonable time of becoming available “to the air charter broker.” A “reasonable” time would be enough time for the charterer to make an informed decision as to whether he or she wants to accept the additional information or the change. For example, should the direct air carrier to operate the flight change one week prior to the flight date, the Department would find it “reasonable” for notice to be given within 24 hours after such information becomes available to the air charter broker. On the other hand, the Department would not find it “reasonable” for notice to be given two hours before departure in such a circumstance, since that would not give the charterer time to make an informed decision as to whether to accept the change. At that point, the charterer would already likely be fully prepared for the flight and may in fact already be en route to the airport.

Having reviewed the public comments, the Department has decided not to add a requirement that air charter brokers obtain written confirmation that the required disclosures were made or that charterers received notice of any changes to the information that must be disclosed or of any information that was not known at the time the contract was entered. The Department appreciates the burden such a requirement would place on air charter brokers and that some consumers may simply ignore requests for confirmation. Furthermore, such a requirement is likely not necessary since, as several commenters noted, the original signed contract may serve as confirmation that the air charter broker made, and that the consumer received, the required disclosures. The Department notes, however, that air charter brokers are free to obtain such confirmations as a method of guarding against claims that they did not make the disclosures.

The Department has considered the arguments against applying the refund requirements of 14 CFR part 374 to air charter brokers. The Department nevertheless believes that these requirements are not overly burdensome on air charter brokers, as their crux is establishing a time frame in which refunds should be processed, and provide consumers with useful protections. The Department believes that these are important consumer protections. As such, the Department is adopting the proposed rule on refunds.

The NPRM: In the NPRM, the Department proposed to enumerate ten prohibited unfair and deceptive practices and unfair methods of competition by air charter brokers. First, air charter brokers may not misrepresent themselves as direct air carriers. Second, air charter brokers must not use their names and slogans in connection with the name of the direct air carrier in such a manner that may confuse consumers as to the status of the air charter broker. Third, air charter brokers must not misrepresent the service, type of aircraft, or itinerary. Fourth, air charter brokers must not misrepresent the qualifications of pilots or the safety record and certification of pilots, aircraft, and air carriers. Fifth, air charter brokers must not make misrepresentations regarding insurance. Sixth, air charter brokers must not misrepresent the cost of the air transportation. Seventh, air charter brokers must not misrepresent membership in or involvement with organizations that audit air charter brokers or direct air carriers. Eighth, air charter brokers must not represent that they possess a contract with a direct air carrier until they have received a binding commitment from the direct air carrier. Ninth, air charter brokers must not sell or contract for air transportation that they know cannot be legally performed by the entity that is to operate the air transportation. Tenth, air charter brokers must not misrepresent the requirements that must be met by charterers to qualify for charter flights. The Department solicited comments on which, if any, of these should be enumerated in the final rule. In addition, the Department asked the public to comment on a potential record-keeping requirement to ensure compliance with the proposed regulations.

Comments: Members of the public expressed widely divergent views on what practices, if any, should be enumerated as unfair and deceptive. Two commenters stated that DOT should enumerate only one unfair and deceptive practice and unfair method of competition: That air charter brokers must not misrepresent themselves as direct air carriers. A third commenter expressed a view along these lines, noting that DOT should merely continue its existing enforcement policy of finding an unfair or deceptive practice or unfair method of competition when an air charter broker misrepresents itself as a direct air carrier. A fourth mirrored these comments but also supported enumerating as unfair or deceptive the practice of telling consumers that the broker maintains a certain level of insurance that it does not, in fact, maintain. Three commenters supported all the proposed enumerated unfair and deceptive practices. Another commenter opposed this portion of the proposal in its entirety. In addition, FlexJet asked that the Department clarify that it is not unfair or deceptive to advertise a price that changes due to circumstances beyond the air charter broker's control.

The Department received input regarding a record retention requirement. CSI Aviation expressed support for a requirement, noting that pursuant to Internal Revenue Service requirements, records are maintained for seven years following the date of transportation. NATA proposed a two-year retention requirement. The Air Charter Association voiced support for a retention requirement without proposing a time-frame.

DOT Response: The Department is making changes to its proposed rule to harmonize language where appropriate with the text of the section enumerating prohibited unfair and deceptive practices by air taxis/commuter air carriers, 14 CFR 298.90. The significant amount of enforcement activity in this area has led the Department to find such enumeration necessary. In fact, the Department believes that codifying certain actions as unfair or deceptive will lower the amount of enforcement action necessary, as all air charter brokers will be fully aware of what behavior is prohibited. In turn, this will level the playing field for those air charter brokers that do not misrepresent themselves or any part of their services. In response to FlexJet's query, the Department notes that the final rule requires that an air charter broker have a binding contract with a direct air carrier or direct foreign air carrier before representing such to the public. As a result, the largest portion of the charter transportation cost should already be established at the point where FlexJet's question arises. The final rule already provides air charter brokers with flexibility in quoting total costs and DOT does not believe greater flexibility is needed, despite FlexJet's request.

The Department is choosing at this time not to require a specific record retention period, but may revisit this issue if it becomes clear that efforts to enforce this part are impeded by a lack of such a period, air charter brokers are evading their disclosure obligations to charterers, or charterers are otherwise being harmed.

The NPRM: In the NPRM, the Department proposed to amend 14 CFR part 298 to prohibit air taxis and commuter air carriers from soliciting or executing contracts for single entity charter air transportation to be performed by another carrier without first providing clear and conspicuous written disclosure to the person or entity that contracts for that air transportation of: (1) The corporate name of the direct air carrier in operational control of the aircraft and any other names in which the carrier holds itself out to the public (as recommended by the NTSB) (2) the capacity in which the air taxi is acting in contracting for the air transportation; (3) the existence of any corporate or pre-existing business relationship with the direct air carrier that will be in operational control of the aircraft; (4) the make and model of the aircraft to be used; (5) the total cost of the air transportation, including carrier- and government-imposed fees and taxes; and (6) the existence of any fees and their amounts, if known, charged by third parties for which the charterer will be responsible for paying directly. In addition, should the operating carrier change, the Department proposed requiring that written notice be provided to the charter customer when the change becomes known. Should reasonable notice not be given, the Department proposed that the charter customer be entitled to a full refund. The Department sought comment on whether it should set a specific timeframe for such notice and whether it should require carriers to obtain confirmation of receipt of that notice and, if so, what type of confirmation.

Comments: Of the three comments on this topic, those from NATA and NBAA generally supported the Department's proposed disclosure requirements, albeit with some changes and clarifications. For example, both sought clarification of what type of “corporate or business relationship” must be disclosed and NBAA sought clarification on whether the parties could agree in writing to forgo certain disclosures. Furthermore, NATA suggested that the Department harmonize the disclosure requirements imposed on air taxi operators/commuter air carriers and on air charter brokers.

NATA also commented that the Department should refine the requirement that air taxi operators and commuter air carriers disclose the total cost. As proposed, the regulation indicates that government-imposed taxes and fees must be disclosed only as they apply to the total cost of air transportation but not as they apply to any fees (e.g., landing fees and fuel) charged by third parties for which the charterer will be responsible for paying directly. In addition, NATA suggested that the Department change its “make and model” references to “type of aircraft” in order to use an industry standard term.

Neither association advocated for a specified time frame in which disclosures must be made, noting that the fact-specific situations require a flexible “reasonable time” standard like that originally proposed by the Department. Moreover, neither advocated for a regulation requiring the confirmation of the receipt of the proposed disclosures.

On the other hand, the comment filed jointly by Corporate Flight Management, Public Charters Inc., and Ultimate Jetcharters opposed all the Department's proposed disclosure requirements. They asserted that the Department failed to provide evidence of objectionable practices by air taxis and commuter air carriers that would provide a rationale for the proposed rule, noting that the NTSB had advocated only the limited disclosure of the name of the operating carrier and the type of aircraft. In the absence of a demonstrated need for greater regulation, the commenters suggested that DOT allow market forces to work, particularly in this situation, where DOT has acknowledged that the consumers are sophisticated entities. Moreover, they asserted that the Department could rely on its existing enforcement mechanisms should problems arise.

DOT Response: The Department is amending 14 CFR part 298 to require air taxis and commuter air carriers to make three disclosures and to make three more upon request. The Department appreciates the comments it received and has incorporated the suggestions of NATA and NBAA into the final rule. First, the Department harmonizes the regulatory language regarding disclosures applicable to air taxi operators/commuter air carriers in 14 CFR 298.80 with those applicable to air charter brokers in 14 CFR 295.24. The Department clarifies what type of “corporate or business relationship between the air taxi operator or commuter air carrier and the direct air carrier” must be disclosed upon request. The Department adopts in part NBAA's suggestion that the definition of a corporate or business relationship be further refined by adding language that the relationship must have a “bearing” on the transaction. The Department disagrees with NBAA's suggestion that the rule indicate that parties may agree in writing to forgo certain disclosures because allowing parties to contract away these protections would severely limit the benefits of the rule.

In addition, based on NATA's suggestion, DOT is adding language to 14 CFR 298.80(a)(5) to clarify that air taxi operators and commuter air carriers must disclose upon request any government-imposed taxes and fees levied on expenses collected by third parties (e.g., landing fees and fuel) and paid directly by the charterer. Further, the Department is not requiring the type of aircraft to be disclosed since it believes that information is already a part of most charter negotiations.

The Department appreciates the positive feedback received regarding its “reasonable time” standard for making the required disclosures and, having received no alternative suggestions, adopts that standard. As the comments noted, because each situation is fact-specific, it would be difficult to enact a workable specific time frame for disclosures. The Department clarifies in the final rule that it is within a reasonable time of becoming available “to the air or commuter air carrier.” For this same reason, the Department clarifies in the final rule that in an exigent circumstance particular to a passenger the required disclosures do not have to be made prior to the start of the air transportation. In addition, the Department is not adding a requirement that air taxi operators and commuter air carriers obtain written confirmation that the required disclosures were made and that charterers received notice of any changes to the information that must be disclosed or of any information that was not known at the time the contract was entered. The Department notes, however, that air taxi operators and commuter air carriers are free to obtain such confirmations as a method of guarding against claims that they did not make the disclosures.

The Department thoroughly considered the comments of Corporate Flight Management, Public Charters Inc., and Ultimate Jetcharters. Nevertheless, DOT agrees with NTSB that disclosures are necessary to enhance consumer protection in charter air transportation. Furthermore, DOT also believes that there are significant benefits regarding additional disclosures to charterers when weighing their air transportation options to know the capacity in which the air taxi or commuter air carrier is acting in contracting for the air transportation, the existence of any corporate or business relationship between the air taxi or commuter air carrier and the direct air carrier that will be in operational control of the flight that bears on the selection of the direct air carrier, the type of aircraft to be used for the flight, the total cost of the air transportation, and the existence of any fees and their amounts that are collected by third parties that the charterer will be responsible for paying directly. The Department firmly believes that within this regulatory framework, the market will continue to work, allowing parties to freely contract with each other. In fact, these required disclosures, many of which are already made as good business practices and/or customer service gestures, will provide a more level playing field for all air taxis and commuter air carriers, thus contributing to the correction of any existing market failures.

The NPRM: The NPRM proposed to prohibit certain practices as unfair or deceptive or unfair methods of competition by air taxis and commuter air carriers. Specifically, these misrepresentations involved the entity in operational control of the aircraft, the quality of the aircraft involved, the schedule and itinerary, the insurance carried, the fares or charges levied, the presence of a contract for a specific air carrier or aircraft, and the legal impossibility of completing the specific flight.

Comments: Only the NATA and NBAA comments addressed the Department's proposal to enumerate for air taxis and commuter air carriers certain unfair and deceptive practices and unfair methods of competition. Both associations supported the proposal in its entirety.

DOT Response: The Department is adopting the proposed 14 CFR 298.100 and codifying it as 14 CFR 298.90. However, the Department is making changes to its proposed rule to harmonize language where appropriate with the text of the section enumerating prohibited unfair or deceptive practices by air charter brokers, 14 CFR 295.50. This includes enumerating misrepresentations as to the qualifications and the safety records of pilots, aircraft, and air carriers; membership in, involvement with, and standards set by auditing organizations; the requirements that charterers must meet to qualify for charter flights; and the use of names, trade names or slogans. The Department already considers such misrepresentations by air carriers, including air taxis and commuter air carriers, to be prohibited under 49 U.S.C. 41712. The Department believes that codifying these and other actions as unfair or deceptive will forestall enforcement action as all air taxis and commuter air carriers will be fully aware of what behavior is prohibited. In addition, the second and third enumerated unfair or deceptive practices contained significant overlap. Thus, these subsections are changed in the final rule so that each is a distinct unfair or deceptive practice or unfair method of competition.

The NPRM: Since 1983, the Department has authorized entities that arrange air ambulance services as indirect air carriers to engage in the sale of air transportation through a blanket exemption granted by the CAB in Order 81-1-36, 99 C.A.B. 801 (1983). In the NPRM, the Department proposed to codify that exemption. In addition, based upon the number of enforcement actions taken for violations of this exemption authority, as well as the licensing requirements of 49 U.S.C. 41101 and the statutory prohibition on unfair and deceptive practices and unfair methods of competition, 49 U.S.C 41712, the Department proposed in the NPRM to apply to indirect air carrier air ambulances the same enumerated prohibited practices proposed for air charter brokers in § 295.50, but not to apply to indirect air carrier air ambulances the disclosure requirements applicable to air charter brokers. DOT invited comments on this proposal in general, as well as comments regarding whether any of the specific provisions in section 295.24 should apply to indirect air carrier air ambulances.

Comments: All commenters expressed general support for the codification of the Department's long-standing exemption. Air Methods addressed the application of the enumerated prohibited practices in 295.50 to indirect air carrier air ambulances by proposing that an indirect air medical program name or logo on an aircraft not be considered misleading, so long as the name of the direct air carrier is displayed in accordance with 14 CFR 119.9(b). Many commenters expressed opposition to applying to air ambulance services the disclosure requirements applied to air charter brokers. Among the reasons given for excluding air ambulance services from these requirements, commenters cited a lack of passenger need and the possible delayed provision of care that could result. The Air Charter Association and the Association of Air Medical Services, on the other hand, disagreed and instead commented that air ambulances should be subjected to the same disclosure requirements as air charter brokers. Moreover, the latter group commented that it would be beneficial for air charter brokers to disclose their medical training level to consumers so that those consumers can better judge the broker's ability to determine the appropriateness of various aspects of flight, e.g., aircraft type, medical staffing, pressurization, etc.

DOT Response: The Department appreciates the general support expressed for the codification of its long-standing exemption, but chooses not to do so at this time. The Department will be studying this area further, including reviewing air ambulance complaints to determine what, if any, disclosure or other consumer protection requirements are appropriate in this area for direct and indirect air carrier air ambulances. Our decision here does not in any way alter the authority for entities that arrange air ambulance services as indirect air carriers to engage in the sale of air transportation under the blanket exemption granted by the CAB in Order 81-1-36, 99 C.A.B. 801 (1983).

The NPRM: The Department proposed to codify the longstanding view of its Office of Aviation Enforcement and Proceedings that contracts with the Federal Government arranged under a GSA Schedule are in fact in common carriage and subject to DOT jurisdiction.

Comments: CSI Aviation (CSI), the sole commenter on this portion of the NPRM, disagreed with the Department's proposal in its entirety. CSI stated that DOT failed to explain why air charter brokers operating under a GSA Schedule required economic authority from the Department. To the contrary, CSI argued that air transportation services conducted pursuant to the GSA Schedules were not common carriage but were, in fact, private carriage. In addition, CSI commented that because the GSA Schedules are governed by the Federal Acquisition Regulations, CSI (and similarly situated parties) are already subject to a consumer protection regime far more comprehensive that the regime proposed by DOT. For example, the Federal Acquisition Regulations subject violators to liquidated damages, nonpayment, and even criminal prosecution. Moreover, CSI asserted that the DOT proposal would interfere with GSA's contracting practices.

DOT Response: The Department is deferring action on this proposal as it is not clear that additional action is necessary. First, the dearth of feedback on this portion of the NPRM makes it more difficult for the Department to consider the various viewpoints of all stakeholders; the views of the only stakeholder to comment had previously been made clear in Federal court. Second, the paucity of feedback received from stakeholders in the years following the litigation that prompted the proposed codification indicates that the existing consumer protection regime may suffice at this time as asserted by CSI. Third, by having only imperfect information available to it, the Department risks taking action that may have unintended consequences. The Department stresses, however, that it may revisit this issue in the future. It may, for example, receive more input from stakeholders or see that changes in Federal Government procurement practices and rules have changed the level of protection afforded consumers.

This proposed rule is not a significant regulatory action under section 3(f) of E.O. 12866 (58 FR 51735, October 4, 1993), Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011), Improving Regulation and Regulatory Review. Accordingly, the Office of Management and Budget (OMB) has not reviewed it under that Order. It is also not significant within the meaning of DOT regulatory policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034 (February 26, 1979)).

The final rule is in part an enabling regulatory action, which would eliminate existing regulatory barriers by recognizing air charter brokers as a new class of indirect air carrier, and would allow air charter brokers as principals to provide single entity charter air transportation of passengers. By removing current regulatory barriers to the sale of single entity charters by air charter brokers, the rule is expected to result in a reduction in the opportunity costs currently incurred by those air charter brokers that would prefer to act as a principal, thereby resulting in a cost savings for these air charter brokers. The magnitude of these potential costs savings cannot be estimated, in part because under the rule the decision by an air charter broker to act as a principal rather than as an agent is discretionary. Therefore, the number of air charter brokers affected by the enabling aspects of rule and that may experience a cost savings cannot be estimated.

The final rule establishes requirements for actions and disclosures to be made by air charter brokers that result in more accurate and transparent information about brokered air transportation transactions being present in the marketplace for charterers. This includes disclosures that are to be made by air taxi operators that may be selling air charter flights that are operated by some other direct air carrier. The total annual costs of the information disclosure provisions of the final rule are estimated to range from $1.3 million to $2.7 million, with a mid-range estimate of $2.0 million expressed in 2017 dollars.

The Department believes that the final rule will result in benefits from the information disclosure requirements and from the enumeration of prohibitions on specific types of unfair or deceptive practices by air charter brokers, air taxis, and commuter air carriers. These benefits cannot be quantified however.

Additional details regarding the cost savings, costs, and benefits of the final rule can be found in the Regulatory Impact Analysis (RIA) for the final rule which is available in the Docket for this rulemaking.1

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

The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et seq.) requires Federal agencies to consider the effects of their regulatory actions on small businesses and other small entities, and to minimize any significant economic impact. When an agency issues a rulemaking proposal, the RFA requires the agency to “prepare and make available for public comment an initial regulatory flexibility analysis” which will “describe the impact of the proposed rule on small entities” (5 U.S.C. 603(a)). Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

In the NPRM (78 FR 59880), in lieu of preparing an Initial Regulatory Flexibility Analysis under section 603(a) of the RFA to assess the impact of the rule, the Department performed a certification analysis under section 605(b) of the RFA and certified that the rule will not have a significant economic impact on a substantial number of small entities.2 3 No comments were received regarding this certification or on the threshold economic analysis and its underlying assumptions that were presented in the NPRM.

The threshold economic analysis that was performed for the certification of the proposed rule under section 605(b) of the RFA determined that although a substantial number of air charter brokers would likely be considered small entities that would be affected by the rule, the economic impact on these small entities would not constitute a significant economic impact on these small entities relative to either gross revenues or profit. The primary changes made to the final rule from the proposed rule include the elimination of provisions that in the proposed rule would have applied to air ambulance services, and to certain air transportation services performed under contract to the Federal government. The elimination of these provisions does not substantively alter the economic analysis and certification of the rule under the RFA as compared to that performed for at the proposed rule stage, other than to remove one class of regulated entity, air ambulance services, that under the final rule are no longer affected and would no longer be subject to disclosure requirements or other provisions. The remaining provisions of the final rule still affect the same classes of regulated entities including air charter brokers, air taxis, and commuter air carriers, and affect these entities in essentially the same manner and to the same extent in terms of the costs and benefits of the rule.

Accordingly, the Secretary of Transportation certifies that this final rule will not have a significant economic impact on a substantial number of small entities.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This final rule does not include any provision that: (1) Has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibility among the various levels of government; (2) imposes substantial direct compliance costs on State and local governments; or (3) preempts State law. States are already preempted from regulating in this area by the Airline Deregulation Act, 49 U.S.C. 41713. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not significantly or uniquely affect the communities of the Indian Tribal governments or impose substantial direct compliance costs on them, the funding and consultation requirements of Executive Order 13084 do not apply.

This rule adopts new information collection requirements subject to the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 49 U.S.C. 3501 et seq.). (PRA) The Department will publish a separate notice in the Federal Register inviting the Office of Management and Budget (OMB), the general public, and other Federal agencies to comment on the new and revised information collection requirements contained in this document. As prescribed by the PRA, the requirements will not go into effect until OMB has approved them and the Department has published a notice announcing the effective date of the information collection requirements.

The Department has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this rule.

The DOT has analyzed the environmental impacts of this action pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and has determined that it is categorically excluded pursuant to DOT Order 5610.1C, Procedures for Considering Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical exclusions are actions identified in an agency's NEPA implementing procedures that do not normally have a significant impact on the environment and therefore do not require either an environmental assessment (EA) or environmental impact statement (EIS). See 40 CFR 1508.4. In analyzing the applicability of a categorical exclusion, the agency must also consider whether extraordinary circumstances are present that would warrant the preparation of an EA or EIS. Id. Paragraph 3.c.5 of DOT Order 5610.1C incorporates by reference the categorical exclusions for all DOT Operating Administrations. This action is covered by the categorical exclusion listed in the Federal Highway Administration's implementing procedures, “[p]romulgation of rules, regulations, and directives.” 23 CFR 771.117(c)(20). The purpose of this rulemaking is to eliminate a regulatory barrier to the sale of charter air transportation while providing consumers with information to make informed purchasing decisions. The agency does not anticipate any environmental impacts, and there are no extraordinary circumstances present in connection with this rulemaking.

For the reasons set forth above, 14 CFR chapter II is amended as follows:

I. Background

We are announcing the availability of a guidance for industry entitled “Determination of Status as a Qualified Facility Under Part 117: Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food and Part 507: Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals; Guidance for Industry.” We are issuing this guidance consistent with our good guidance practices regulation (21 CFR 10.115). This guidance represents the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.

In the Federal Register of May 16, 2016 (81 FR 30219), we made available a draft guidance for industry entitled “Qualified Facility Attestation Using Form FDA 3942a (for Human Food) or Form FDA 3942b (for Animal Food)” and gave interested parties an opportunity to submit comments by November 14, 2016, for us to consider before beginning work on the final version of the guidance. We received a couple of comments on the draft guidance and have modified the final guidance where appropriate. Changes to the guidance include: (1) Clarification regarding recordkeeping and FDA review of records, (2) clarification regarding how a facility can meet the definition of a “very small business,” (3) addition of new examples of calculations, and (4) explanation of a simpler method for determining whether a facility's 3-year average of food sales and food market value is below the inflation adjusted threshold for a “very small business.” In addition, editorial changes were made to improve clarity. The guidance announced in this notice finalizes the draft guidance dated May 16, 2016.

This guidance contains information collection provisions that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR 117.201 and 507.7 have been approved under 0910-0854.

The guidance also refers to previously approved collections of information found in FDA regulations. The collections of information in part 117 have been approved under OMB control number 0910-0751. The collections of information in part 507 have been approved under OMB control number 0910-0789.

Persons with access to the internet may obtain the draft guidance at either https://www.fda.gov/FoodGuidances or https://www.regulations.gov. Use the FDA website listed in the previous sentence to find the most current version of the guidance.

The following references are on display at the Dockets Management Staff (see ADDRESSES) and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; they are also available electronically at https://www.regulations.gov. FDA has verified the website addresses, as of the date this document publishes in the Federal Register, but websites are subject to change over time.

The Virginia Department of Transportation, owner and operator of the U.S. 17/U.S. 258/SR 32/James River Bridge which carries U.S. 17, U.S. 258, SR 32, across the James River, mile 5.0, between Isle of Wight and Newport News, VA, has requested a temporary deviation from the current operating schedule to facilitate replacement of a rotary cam limit switch in the span drive system of the vertical lift span of the drawbridge. The bridge has a vertical clearance of 60 feet above mean high water in the closed position and 145 feet above mean high water in the open position.

The current operating schedule is set out in 33 CFR 117.5. Under this temporary deviation, the bridge will be in the closed-to-navigation position from 7 a.m. on September 26, 2018, through 12:01 a.m. on September 28, 2018.

The James River is used by a variety of vessels including deep draft ocean-going vessels, U.S. government and public vessels, small commercial vessels, tug and barge traffic, and recreational vessels. The Coast Guard has carefully coordinated the restrictions with waterway users in publishing this temporary deviation.

Vessels able to pass through the bridge in the closed-to-navigation position may do so at any time. The bridge will not be able to open for emergencies and there is no immediate alternative route for vessels unable to pass through the bridge in the closed position. The Coast Guard will also inform the users of the waterway through our Local Notice and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

EPA is finalizing approval of changes to the Knox County portion of the Tennessee SIP regarding PSD and NNSR permitting, as well as updates to minor NSR, submitted by TDEC on behalf of Knox County's Air Quality Management Division.

On March 7, 2017, Tennessee submitted two SIP revisions updating Knox County's Air Quality Management Regulations, Section 41.0 entitled “Regulations for the Review of New Sources,” and Section 45.0 entitled “Prevention of Significant Deterioration.” 1 On April 17, 2017, Tennessee submitted two additional SIP revisions, including additional changes to Section 41, and updates to Section 25.0 entitled “Permits.” 2 These SIP revisions are meant to address changes to the federal NSR regulations, as promulgated by EPA in various rules. EPA is finalizing approval of the aforementioned SIP submittals in their entirety. Additional detail on these submittals, as well as the analysis of the changes and our rationale for approving them is presented in EPA's June 20, 2018, proposed rulemaking. See 83 FR 28568.

Tennessee's March 7, 2017, SIP revisions make changes to Knox County's Air Quality Regulations, Section 41.0—“Regulations for the Review of New Sources” and Section 45.0—“Prevention of Significant Deterioration” to address changes to the federal NSR regulations, as promulgated by EPA in the 2002 NSR Reform Rules, and subsequent changes in other relevant rulemakings.

As part of the changes to Section 41 and Section 45, Knox County adopted all the necessary provisions of the federal NNSR rules (found in 40 CFR 51.165) and the federal PSD rules (found in 40 CFR 51.166) to make them consistent with, and in some cases more stringent than, the federal rules. These changes included the adoption of several definitions in the federal PSD and NNSR rules, such as the definition of “regulated NSR pollutant,” as well as provisions regarding major NSR applicability procedures, actual-to-projected-actual applicability tests, plantwide applicability limits (PALs), and recordkeeping. Additionally, in the changes included in the March 7, 2017, SIP submittal, Knox County adopted the provisions of EPA's Ozone Phase 2 Rule.

The April 17, 2017, SIP revision included two changes to the Knox County portion of the Tennessee SIP, one making additional changes to Section 41, and another updating Section 25.0—“Permits.” The revisions to Section 41 include additional changes to address several updates to the federal PSD rules regarding the PM2.5 NAAQS. As part of the revisions to Section 25, Knox County amends subsections 25.1—“Construction Permit,” and 25.3—“Operating Permit,” to included changes to its NSR construction and operating permit regulations, as well as its minor NSR program.

As mentioned above, EPA published a notice of proposed rulemaking on June 20, 2018 (83 FR 28568), proposing to approve the changes from Tennessee's March 7, 2017, and April 17, 2017, SIP revisions. The proposed rulemaking contains more detailed information regarding the Tennessee SIP revisions being approved and explains the rationale for this action. Comments on the proposed rulemaking were due on or before July 20, 2018. EPA received no relevant comments.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Knox County's Air Quality Management Regulations, Section 25.1—“Construction Permit,” which is state effective January 18, 2017; Section 25.3—“Operating Permits,” which is state effective January 18, 2017; 3 Section 41.0—“Regulations for the Review of New Sources,” which is state effective January 18, 2017; and Section 45.0—“Prevention of Significant Deterioration,” which is state effective July 20, 2016. These revisions amend Knox County's NSR rules to address several changes to the federal NSR regulations, as promulgated by EPA in the 2002 NSR Reform Rules and subsequent actions. 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.4

EPA is finalizing approval of the revisions presented in Tennessee's March 7, 2017, and April 17, 2017, SIP submittals consisting of changes to Knox County's Air Quality Management Regulations, Section 41.0 entitled “Regulations for the Review of New Sources,” Section 45.0 entitled “Prevention of Significant Deterioration,” and Section 25.0 entitled “Permits.”

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. These actions merely approve state law as meeting Federal requirements and do not impose additional requirements beyond those imposed by state law. For that reason, these actions:

• Are 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);

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

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

• Are 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.);

• Do 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);

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

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

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

• Are 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

• Do 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 November 16, 2018. 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).

40 CFR part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

On January 15, 2013, EPA revised the primary (protective of human health) annual PM2.5 NAAQS to a level of 12.0 micrograms per cubic meter (μg/m3). 40 CFR 50.18. EPA also retained the annual PM2.5 secondary (protective of public welfare) NAAQS set at a level of 15.0 μg/m3, along with the 24-hour primary and secondary NAAQS for PM2.5 at a level of 35 μg/m3. 40 CFR 50.13.

Wisconsin revised its ambient air quality rules in chapter NR 404 such that its PM2.5 standards are consistent with EPA's revision. Wisconsin modified NR 404.04(9) by splitting the PM2.5 standards into separate sections for the primary and secondary standards. Wisconsin added NR 404.04(9)(am) for the primary PM2.5 standard and NR 404.04(9)(bm) for the secondary PM2.5 standard. In NR 404.04(9)(am), the primary annual PM2.5 standard was revised from 15.0 to 12.0 μg/m3 with the 24-hour primary PM2.5 standard remaining at 35 μg/m3. Wisconsin retained the current secondary standard, 15.0 μg/m3 annual and 35 μg/m3 24-hour, in the new NR 404.04(9)(bm).

Wisconsin also included monitoring method requirements in both NR 404.04(9)(am) and (bm). The ambient PM2.5 is to be measured by the methods of 40 CFR part 50, appendices L and N, for both standards. 40 CFR part 50, appendix L, is the Reference Method for the Determination of Fine Particulate Matter as PM2.5 in the Atmosphere, while 40 CFR part 50, appendix N, is the Interpretation of the NAAQS for PM2.5.

Wisconsin also revised its incorporation by reference rules in chapter NR 484. Wisconsin altered NR 484.04(6g) and NR 484.04(6r). The State amended NR 484.04(6g) by incorporating by reference 40 CFR part 50, appendix L, Reference Method for the Determination of Particulate Matter as PM2.5 in the Atmosphere, into NR 404.04(9). The State amended NR 484.04(6r) by incorporating by reference 40 CFR part 50, appendix N, Interpretation of the NAAQS for PM2.5, into NR 404.04(9).

A comment period was provided in the May 25, 2018, proposed rule (83 FR 24257). The comment period closed on June 25, 2018. One anonymous comment was received that is irrelevant to the scope of this rulemaking and therefore, need not be addressed.

EPA is approving revisions to NR 404.04(9), NR 484.04(6g), and NR 484.04(6r), as submitted on January 4, 2018. The revisions to the ambient air quality standards and the incorporation by reference rules make Wisconsin's standards consistent with 2012 PM2.5 NAAQS.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Wisconsin Regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available through www.regulations.gov, and at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

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

In addition, 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 and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 16, 2018. 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 Clean Air Act section 307(b)(2).)

40 CFR part 52 is amended as follows:

In the final rule, FRA failed to include an instruction amending 49 CFR 228.201 to include new paragraph (c). See 83 FR 43988. Paragraph (c) was discussed in the section-by-section analysis and properly published as new rule text, but was not properly included in an amendatory instruction. This correction remedies that oversight to ensure that the codified text of the section matches the text FRA intended.

For the reasons discussed in the preamble, FRA amends part 228 of chapter II, subtitle B of title 49, Code of Federal Regulations, as follows: