Federal Register Vol. 83, No.69,

The Office of Personnel Management (OPM) is issuing final regulations to implement the weather and safety leave provisions of the Administrative Leave Act of 2016, enacted under section 1138 of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328, 130 Stat. 2000, December 23, 2016). The Administrative Leave Act of 2016, hereafter referred to as “the Act,” added three new sections in title 5 of the U.S. Code that provide for specific categories of paid leave and requirements that apply to each: Section 6329a regarding administrative leave; section 6329b regarding investigative leave and notice leave; and section 6329c regarding weather and safety leave.

OPM published proposed regulations (82 FR 32263) on these new categories of leave on July 13, 2017. The 30-day comment period for the proposed regulations ended on August 14, 2017. After careful consideration of the comments received, and in recognition of the different implementation dates for the new leave categories under the Act, OPM has determined that it would better serve agencies if the final regulations on new subpart P, Weather and Safety Leave, were issued separately from the final regulations on the other leave categories. Accordingly, this Federal Register document provides general information, addresses the comments received, and issues final regulations that reflect changes to the proposed regulations expressly regarding subpart P, Weather and Safety Leave. OPM will issue separate final regulations on the other leave categories in the Federal Register at a later date.

While the Act directed OPM to prescribe (i.e., publish) regulations no later than 270 calendar days after the Act's enactment on December 23, 2016—i.e., September 19, 2017—OPM was unable to meet that requirement. The Act further directed that agencies “revise and implement the internal policies of the agency” to meet the statutory requirements pertaining to administrative leave, investigative leave, and notice leave no later than 270 calendar days after the date on which OPM issues its regulations. (See 5 U.S.C. 6329a(c)(2) and 6329b(h)(2).) However, there is no similar agency implementation provision in the law governing weather and safety leave. Therefore, the weather and safety leave regulations in subpart P must be implemented when the final rule is effective—i.e., 30 days after publication. (See the DATES section of this preamble.) OPM will delay enforcing the requirement in subpart P that agencies separately report weather and safety leave to OPM until the 270th day following publication of the final regulations on subparts N (administrative leave) and O (investigative leave and notice leave).

To the extent that existing agency collective bargaining agreements contain provisions that are inconsistent with the statutory provisions of the Administrative Leave Act (including sections 6329a, 6329b, or 6329c), then the Act supersedes—as of the applicable implementation date—conflicting provisions in agency collective bargaining agreements as a matter of law. For an agency collective bargaining agreement in effect before publication of these regulations, any provisions in the regulations (other than those restating statutory requirements) that are in conflict with the agreement may not be enforced until the expiration of the current term of the agreement. For an agency collective bargaining agreement that takes effect on or after the date these regulations are published, regulatory provisions will supersede conflicting provisions in the agreement during any period of time following the applicable regulatory implementation date. To the extent that the Act and accompanying regulations are not inconsistent with the provisions in agency collective bargaining agreements, those provisions remain in effect until the provisions expire or are renegotiated.

Agencies are responsible for compliance with time limits provided for in the Act and OPM regulations and guidance.

In this final rule, OPM is adding subpart P, Weather and Safety Leave (implementing 5 U.S.C. 6329c) to 5 CFR part 630. Hereafter in this SUPPLEMENTARY INFORMATION section, references to statutory provisions in title 5 of the United States Code will generally be referred to by section number without restating the title 5 reference (e.g., section 6329c instead of 5 U.S.C. 6329c). Also, references to regulatory provisions in title 5 of the Code of Federal Regulations will generally be referred to by section number without restating the title 5 reference (e.g., § 630.1601 instead of 5 CFR 630.1601).

Weather and safety leave is permitted—at an agency's discretion but subject to statutory and regulatory requirements, agency policies, and lawful collective bargaining provisions—only when an agency determines that employees cannot safely travel to and from, or perform work at, their normal worksite, a telework site, or other approved location because of severe weather or other emergency situations. Though granting of weather and safety leave must follow the guidelines and eligibility requirements contained in section 6329c and these implementing regulations, and it is anticipated that such leave would be granted sparingly in the case of employees participating in telework, there is no cap on the number of hours that may be granted for such leave.

Both the law and the regulations address recordkeeping and reporting requirements on weather and safety leave with which agencies must comply. Agencies must keep separate records on weather and safety leave.

We received comments relating to the proposed regulations on weather and safety leave from 6 agencies, 4 unions, 1 other organization, and 8 individuals. In the first section below, we address general or overarching comments. In the sections that follow, we address comments related to specific portions of the regulations.

Comment: Multiple commenters requested guidance about how the new types of leave should be coded in the payroll system to accurately account for and track the use of these new leave provisions.

OPM response: The regulations specify that an agency must track the use of the new categories of leave using five categories: (1) Administrative leave for investigative purposes, (2) administrative leave for other purposes, (3) investigative leave, (4) notice leave, and (5) weather and safety leave. The regulations do not address details regarding the coding of leave in agency payroll systems or in OPM's Government payroll databases. OPM will be providing payroll providers with instructions on how to properly code the various types of leave.

Comment: An organization expressed concern that having reports prepared by the Government Accountability Office (GAO) submitted every 5 years is too infrequent. Instead, the organization stated that agencies should be required to maintain real-time, current tallies of all types of paid leave available on its website for all to see, rather than buried in obscure, long, after-the-fact reports.

OPM response: Payroll providers submit payroll data to OPM every biweekly pay period. Thus, agencies and OPM will have real-time data that could be used to generate reports as necessary. The requirement for GAO reports every 5 years is a statutory requirement, which OPM has no authority to change. (See section 1138(d)(2) of Pub. L. 114-328.)

Comment: An organization stated that the regulations make no provision for ensuring that agencies establish necessary agency rules or that agency rules are consistent with OPM regulations. The organization suggested that OPM exercise oversight over agency practices.

OPM response: The Administrative Leave Act directed OPM to issue regulations and guidance dealing with the appropriate uses and proper recording of the new types of leave, but otherwise imposed no special obligation to monitor agency practices. Although OPM has more general authority to exercise an oversight function, OPM does not have the resources to regularly evaluate every agency personnel program, and no need for such a program has, as yet, been established in this context. OPM can and will intervene if it becomes aware that an agency is not complying with the law and regulations for which OPM is responsible. Each agency, along with Inspectors General, is responsible for evaluating agency personnel programs and the actions of its managers.

Comment: One commenter noted the telework-related provisions in the proposed regulations and expressed concern that Federal employees were not performing required hours of work while teleworking.

OPM response: The Telework Enhancement Act of 2010 (the Act), now codified at 5 U.S.C. 6501-6506, specifies roles, responsibilities and expectations for all Federal executive agencies with regard to telework policies; employee eligibility and participation; program implementation; and reporting. Under the Act, each agency is responsible for ensuring that employees perform required hours of work while teleworking. These regulations merely recognize the fact that the option of telework is available by law, as specified, under authority of 5 U.S.C. chapter 65 and explains how telework relates to the new types of leave.

Comment: A union requested clarification that, unlike OPM's Governmentwide regulations, OPM-issued “guidance” (e.g., weather/safety leave guidance) does not interfere with a union's bargaining rights or legal obligations in existing collective bargaining agreements.

OPM response: To respond to the comment about the relationship between OPM guidance and collective bargaining agreements, we must first address how statutory and regulatory requirements affect collective bargaining agreements. Statutory requirements established by the Administrative Leave Act supersede conflicting provisions in any agency collective bargaining agreement—as of the applicable implementation date. Thus, the requirements in section 6329c would prevail over conflicting provisions in any agency collective bargaining agreement effective on the date that is 30 days after publication of these final regulations. For example, section 6329c allows agencies to provide weather/safety leave “only if” an employee is “prevented from safely traveling to or performing work at an approved location.” By definition, for an employee participating in a telework program, the telework site is an approved location. Thus, the law bars granting weather/safety leave to an employee who can safely work at home under a telework arrangement.

If OPM regulatory requirements that go beyond statutory requirements conflict with an existing agency collective bargaining agreement, those regulatory requirements may not be implemented until the expiration of the current term of the agreement. (See section 7116(a)(7).) However, for any agency collective bargaining agreement that takes effect on or after the date these regulations are published, regulatory provisions will supersede conflicting provisions in the agreement during any period of time following the regulatory implementation date (30th day following publication). Once applicable, OPM regulations will have the force of law and be binding on agencies.

Once OPM regulations are in force, we will also expect agencies to comply with any related OPM guidance concerning compliance with the Act or regulations, and such guidance may itself impact an agency's collective bargaining obligations. For example, if the negotiability of a proposal or provision is at issue before the FLRA or Courts in the future, an agency may rely upon OPM's regulations and guidance as reasons why the proposal or provision would be contrary to law under the Federal Service Labor-Management Relations Statute and, therefore, be nonnegotiable.

Comment: One individual commented that agencies should not grant weather and safety leave, but instead should require employees to use their annual leave when they are prevented from safely traveling to work.

OPM response: The statute confers upon agencies the authority to grant weather and safety leave without loss of “leave to which the employee or employees are otherwise entitled” (section 6329c(b)). Weather and safety leave is generally appropriate when Government offices are closed for a full or partial day because of snow or any other weather or safety conditions and the employee is prevented from working or otherwise unable to work at an alternative worksite pursuant to the criteria provided in section 6329c(b). This would cover situations where working at an alternative worksite is itself unsafe, where the employee is ineligible for telework, or where the employee is not participating in a telework program. At the sole and exclusive discretion of agency management, it could also be used to cover the unusual situation where a teleworker is unprepared to telework because the event could not be readily anticipated (e.g., the normal workplace is rendered unsafe following a fire, flood, or earthquake) and the employee does not have equipment or materials he or she would need to perform work.

Comment: A union believed that OPM should impose the same 270-day delay in implementation for agency internal policies on weather and safety leave as is done for administrative leave, investigative leave, and notice leave. The union said that otherwise, the implementation and use of weather and safety leave could be improperly delayed indefinitely, creating uncertainty and confusion in the workplace. An individual similarly commented that the subpart P regulations should take effect in 270 days consistent with the other requirements in the Act.

OPM response: The Act provides a 270-day implementation period for administrative leave under 5 U.S.C. 6329a(c)(2) and for investigative and notice leave under 5 U.S.C. 6329b(h)(2), but does not provide a similar period for weather and safety leave under 5 U.S.C. 6329c. Therefore, the regulations on weather/safety leave under subpart P will take effect 30 days from this date of publication. As provided in § 630.1604(b) of the regulations, agency policies and procedures on weather/safety leave must be consistent with OPM's regulations and guidance.

Comment: One agency recommended that OPM change the definition of “act of God” to “act of nature.”

OPM response: OPM chose to use “act of God” over “act of nature” because “act of God” is the terminology used by the weather/safety leave statute. (See section 6329c(b)(1).)

Comment: An agency recommended adding a fourth weather/safety leave category for severe commuting situations such as closure of a mass transit system or a major highway. An individual suggested that OPM revise § 630.1603 to authorize agencies to grant employees weather/safety leave for the purposes of preparing their homes for an imminent hurricane or other natural disaster.

OPM response: The language of the weather and safety leave statute at section 6329c(b) authorizes its use only “if the employee or group of employees is prevented from safely traveling to or performing work at an approved location” (italics added). OPM cannot authorize this type of leave for mass transit or commuting problems not related to safety matters. Employees have other workplace flexibilities available to address these situations, including alternative work schedules, leave, and telework. However, an agency could choose to close the Federal facility in preparation for a severe hurricane or other pending disaster based on safety considerations. Since “weather and safety” leave may be granted when Government offices are closed for a full or partial day because of severe weather and safety conditions, provided an employee is prevented from performing or otherwise unable to work at an approved location based on criteria as specified in section 6329c(b), the leave may be appropriate for these purposes—e.g., evacuation of an area due to a hurricane.

Comment: An agency recommended that managerial discretion be allowed in instances where an employee is unavoidably delayed or necessarily absent for a short period of time because of a weather/safety issue.

OPM response: Weather/safety leave may be provided when employees are prevented from safely traveling to or safely performing work at an approved location. This type of leave is generally granted in conjunction with an agency or OPM operating status announcement. Such an operating status announcement may allow for a delayed arrival or early departure and the use of weather and safety leave to cover the short period of absence. In other circumstances, an agency may authorize administrative leave under section 6329a, subject to the 10-workday calendar year limitation (once section 6329a is implemented), for employees whose arrival at work is delayed; however, such use is subject to the sole and exclusive discretion of the head of the agency or his or her delegees, and should be consistent with agency policy. It is anticipated that granting of such leave would be rare.

Comment: An individual asked what position should be taken if officials authorize weather/safety leave when there are no weather/safety conditions present.

OPM response: The statute at section 6329c(b) prescribes that weather/safety leave may be provided “only if the employee or group of employees is prevented from safely traveling to or performing work at an approved location” due to the conditions specified under § 630.1603. This type of leave is generally provided in connection with an OPM or agency-specific operating announcement. Providing this leave when none of the weather/safety conditions listed under § 630.1603 are present would be inconsistent with the statute. Each agency is responsible for ensuring the weather/safety leave is used appropriately and, when it is not, taking necessary corrective action.

Comment: To reflect the statutory language at section 6329c(b), an agency recommended that OPM add the word “only” to § 630.1603 so that it reads “only if they are prevented from safely traveling.”

OPM response: The word “only” has been added to § 630.1603.

Comment: A union asked if it was appropriate for an agency to require employees to request annual leave when prevented from traveling to the worksite by a weather/safety event and then later requiring the employees to request conversion of the annual leave to weather/safety leave.

OPM response: Weather and safety leave generally should be authorized based on operating status announcements. In most cases, if an employee requests annual leave in order to depart before an announcement is made, the employee will remain on annual leave. More information will be provided in OPM guidance.

Comment: An agency asked if weather/safety leave or administrative leave applies when OPM or a local Federal Executive Board closes installations due to snow.

OPM response: Weather/safety leave generally will be provided in conjunction with an operating status announcement and may be used when Government offices are closed because of snow or any other weather or safety conditions, provided conditions for granting leave pursuant to section 6329c(b) are met.

Comment: An individual commenter objected to § 630.1605(a)(1) because the commenter viewed the regulation as forcing an employee to telework when an agency closes during a weather or safety event. The commenter stated that this rule had the effect of treating all telework employees as emergency employees. The commenter further stated that the safety of the employee should be given priority. The commenter noted that some existing collective bargaining agreements do not allow employees to telework when an agency is closed due to a weather/safety event.

OPM response: The weather/safety leave regulation does not force employees to telework. Rather it recognizes that weather/safety leave is normally unnecessary if an employee is eligible for and participating in a telework program and is able to work at his or her alternative work location, notwithstanding the conditions at the default workplace. The regulation simply provides a framework and criteria for decisions about whether to grant weather and safety leave to Federal employees, including those employees who are approved to telework. If a telework-participating employee does not meet the criteria for the granting of weather/safety leave and seeks not to telework, the employee has other options—the same options the employee would have on any other day he/she seeks not to work (e.g., requesting annual leave, requesting leave without pay etc.). Since the employee has the option to telework, the employee is able to work without compromising his/her safety. Weather/safety leave is granted solely because of safety risks. As stated in the law at section 6329c(b), weather/safety leave is to be granted “only if” an employee is “prevented from safely traveling to or performing work at an approved location,” and for an authorized teleworker the telework site (usually the employee's home) is an approved work location. Emergency employees are governed by a different set of guidelines than telework-participating employees. Unlike many emergency employees, the teleworker is not expected to report to the regular worksite when an emergency has caused the regular office to be closed to the public. To the extent that an existing collective bargaining agreement contains provisions that conflict with the nonstatutory requirements in telework-related regulations in § 630.1605(a), however, this regulation may not be enforced during the current term of the agreement (5 U.S.C. 7116(a)(7)).

Comment: Another individual commented that the denial of weather/safety leave to teleworkers penalizes those who only occasionally telework and discourages employees from agreeing to situational telework. The commenter recommended that the regulations include an annual threshold for situational teleworking days under which an employee, with supervisor concurrence, would not be required to telework or take leave when the government is closed for weather and safety purposes.

OPM response: As noted above, the statute at section 6329c(b) permits weather/safety leave only if the employee is prevented from safely traveling to or performing work at an approved location. Occasional teleworkers have the same ability as regular teleworkers to perform work at an approved location (the telework site) during weather/safety events. Occasional teleworkers also realize the benefits of teleworking, although not as frequently as regular teleworkers. OPM does not believe that the inability to receive weather/safety leave on the rare occasions when weather/safety events close offices will discourage a significant number of employees from seeking the benefit of occasional teleworking. Even if it does cause some employees to not engage in occasional teleworking, however, the regulation is consistent with the underlying purpose of this later statute, which is to limit weather/safety leave to situations where an employee is unable to perform work at an approved location.

Comment: A union asked what criteria are necessary to determine if an employee can reasonably work from home and what happens if the employee does not have a home and equipment that are suitable for teleworking. The union also commented that it was not equitable for those with telework agreements to work on days when those without agreements are not required to work. The union further said that it is not reasonable to force teleworkers to be forecasters of weather and safety events such that they must be telework ready on all workdays. The union additionally stated that telework policies are trending toward expecting employees to maintain their residence in a continuous telework-ready state by requiring mandatory telework during emergency closure of the regular worksite, which in effect requires employees to provide “free rent” of their residential office to the government on days when they were not planning to telework.

OPM response: The regulations on weather/safety leave related to teleworkers apply only to employees who are already “participating in a telework program” (as defined in § 630.1602). For such telework program participants who already telework at home, they must have a home and equipment suitable for teleworking. Agency telework policies and employee telework agreements establish the criteria for determining whether an employee can reasonably work from home. At a minimum, and subject to other requirements of the agency, teleworkers must have sufficient work and a workplace conducive to performing the work. If the employee does not have a suitable home or cannot transport needed equipment to his or her home, then the employee should not have a telework agreement. Employees without telework agreements cannot work from home; therefore, they may be granted weather/safety leave under these regulations.

Employees with telework agreements gain the benefits of teleworking, but generally will not be granted weather/safety leave when a weather/safety event can be reasonably anticipated. Warnings for these anticipated events are usually broadcast in the media well in advance and, for that reason, teleworkers are generally expected to know that they need to be prepared to work from home when the event occurs. Because agencies may provide weather/safety leave to teleworkers when, in the agency's judgment, the event could not be reasonably anticipated and an employee is otherwise prevented from performing work, there is no need for teleworkers to be prepared to telework on days when a major event is not anticipated unless it coincides with an already scheduled telework day. There is no requirement for employees to maintain their residence in a continuous telework-ready state or dedicate any part of their residence for telework purposes beyond any requirements in connection with their normally scheduled telework. For employees who have a regular telework schedule, there is essentially no difference between activities required to maintain a residence in a telework-ready state when expecting a weather event and maintaining it in a telework ready state when preparing for any other telework day, nor is there any meaningful difference in how an employee would dedicate space in their residence under these respective scenarios. OPM also notes that these regulations do not require mandatory telework during emergency closures, but instead bar weather/safety leave from being granted when employees can telework.

Comment: A union said that it is the responsibility of the agency to timely notify employees of an impending weather/safety condition if the agency wants the employees to telework on a day when the employees would have otherwise worked in the office. The union believed it unfair and burdensome to make employees take annual leave when they do not bring work home.

OPM response: Under § 630.1605(a)(3), agencies have discretion in determining whether a weather/safety condition could be reasonably anticipated and whether the employee took reasonable steps to prepare for teleworking. OPM defers to an agency's judgment as to whether to provide notice in some manner of impending weather/safety conditions for which teleworking employees will not receive weather/safety leave. An agency notice, whether provided or not provided, may be a consideration in the determination as to whether an employee took reasonable steps to prepare for teleworking.

Comment: Three commenters expressed concern about employee dependent care responsibilities when an employee participates in a telework program and a weather or safety condition occurs that prevents safe travel. Two of the commenters pointed out that agencies often have telework policies that do not permit telework when employees have small children or other dependents at the telework site. Because § 630.1605(a)(1) prohibits agencies from granting weather and safety leave when an employee can telework at an approved telework site, the commenters believe that this section precludes agencies from granting weather and safety leave to employees with dependent care responsibilities.

OPM response: An agency may determine that, under certain conditions, employees are capable of teleworking even if they have school-age children or elderly parents in the home and establish a policy of allowing telework in such situations. However, if these circumstances diminish an employees' ability to perform agency work, they will not be eligible to telework under these conditions (5 U.S.C. 6502(b)(1)). If an agency policy bars telework at home in the given child/elder care situation, then the home is not an approved location. Thus, if the employee is not permitted to telework under agency policies, and cannot safely travel to or perform work at the regular office location, an agency may grant weather/safety leave to the employee. If agency policies allow an employee to telework with a school-age child or an elderly parent in the home in a weather/safety situation, any time spent in giving care to such individuals would not be considered hours of work. Under this scenario, an employee would be expected to account for work and non-work hours during his or her tour of duty and take the appropriate leave (paid or unpaid) to account for the time spent away from normal work-related duties.

Comment: An agency recommended that agencies be permitted to grant employees administrative leave when needed to address the effects of weather/safety events to ensure their safety, the safety of others, the integrity of their property, and/or their ability to report to work. The agency provided as examples the need to clear snow or remove excess water from their property.

OPM response: To the extent that activities such as clearing snow are truly necessary to ensure that the employee can safely travel to or safely perform work at an approved location, within the meaning of section 6329c(b)(3), the agency can provide weather/safety leave at its discretion for the period needed. Employees would need to use their annual leave or other time off for activities such as clearing snow on sidewalks or basement water removal that are not necessary to ensure that the employee can safely travel to or perform work at an approved location. OPM's guidance on dismissal and closure policy and procedures will further address agency discretion in regard to granting weather/safety leave.

Comment: The same agency asked why § 630.1605(a)(2)(iii) is necessary since agencies may not approve weather/safety leave if an employee could reasonably anticipate the need to telework.

OPM response: Paragraphs (i) and (ii) of § 630.1605(a)(2) provide for the granting of weather/safety leave in two instances where the employee might otherwise be expected to telework. Paragraph (iii) provides that agencies can determine not to provide weather/safety leave in circumstances such as those provided under (i) and (ii) when the employee can safely travel to or perform work at the regular worksite. In these instances, the telework site might not be viable, but the employee might be able to work at the regular worksite. An employee is generally expected to report to the regular worksite—even on a day when he or she is scheduled to telework—if conditions at the telework site do not permit the performance of work (e.g., lack of internet access, loss of power).

Comment: The same agency asked when weather/safety leave is ever applicable to the telework site. The agency asked if it would be provided when the employee loses power while teleworking.

OPM response: Weather/safety leave may be granted to an employee at a telework site as provided under § 630.1605(a)(2)(ii). Examples of when weather/safety leave might be provided include weather-related damage to a home that makes occupying the home unsafe, loss of power at home (which makes the home not an approved location under agency telework policies), and employees not being prepared for teleworking when the conditions could not be anticipated (tornado or earthquake). The agency has discretion to grant weather/safety leave whenever an employee is prevented from safely working because of one of the conditions in § 630.1603.

Comment: A union requested that OPM clarify that under § 630.1605(a)(2)(iii) it is presumed that, if Government offices are closed, the weather/safety conditions prevent the employee from safely traveling to their traditional worksite.

OPM response: No such presumption applies. The agency must determine the actual facts. Section 630.1605(a)(2)(iii) addresses situations when an employee who participates in telework is unable to work from home or another alternative location, due to a weather/safety event, but the employee's regular worksite is open (or has reopened) for business. Even if the employee (who is a telework program participant) is not able to telework at home under the conditions described in paragraph (i) or (ii), the agency may choose not to provide an employee with weather/safety leave if the employee can safely travel to and work at the regular worksite—regardless of whether the given day was a scheduled telework day. Section 630.1605(a)(2)(iii) does not apply if the regular worksite is closed for weather/safety reasons.

Comment: An agency recommended that OPM correct the section reference in § 630.1605(a)(2)(iii) from “630.1603(a)” to “630.1603.” Another agency recommended that the same change be made in § 630.1605(a)(3). Two unions recommended that OPM provide in § 630.1605(b) that agencies inform employees of their designation as emergency employees at the time the designation is made.

OPM response: These changes have been made. OPM removed the paragraph designation from the § 630.1603 references and modified § 630.1605(b) to state “an agency should inform employees of their designation as emergency employees well in advance.”

Comment: A union objected to the provision at § 630.1605(b) giving agencies discretion to designate emergency employees who are critical to agency operations. The union said that the provision would not prohibit or deter an agency from broadly construing “necessary for critical agency operations” and excluding an overly large group of employees from weather/safety leave. The union recommended that § 630.1605(b) be stricken in its entirety or, at a minimum, modified to narrow the types of employees who could be categorized as emergency employees. The union said that these employees should not be required to physically report to work when their colleagues are granted weather and safety leave.

OPM response: Agencies have extensive experience with designating emergency employees under prior dismissal and closure procedures used for weather and other emergencies. Since the Telework Enhancement Act of 2010, OPM has incorporated telework into our emergency operating announcements not only for the safety of our employees, but also to support continuity of operations, both for mission-critical functions and more general work to the extent possible. The Federal Government has a vital role in our economy and it is extremely important that we continue operations to the greatest degree possible. OPM believes agencies are in the best position to make determinations as to which employees should be designated as emergency employees and which employees are eligible to telework. Agencies are also in the best position to decide if emergency employees are needed at the worksite or whether their duties can be performed while teleworking.

Comment: Two unions expressed concern about the regulation in § 630.1606(c), which provides that an employee may not receive weather/safety leave for hours during which the employee is on other preapproved leave (paid or unpaid) or paid time off. The unions objected to the rule that agencies should not approve weather/safety leave for an employee who, “in the agency's judgment, is cancelling preapproved leave or paid time off, or changing a regular day off in a flexible or compressed work schedule, for the primary purpose of obtaining weather and safety leave.” One union stated that, if employees have a right to modify scheduled time off, the primary purpose of a modification should not be left to the determination of management. The union warned that this rule could result in mass grievances, which could result in large costs to both the agency and the union. The other union voiced similar concerns, stating that an agency should be required to prove that an employee is cancelling preapproved leave for the primary purpose of obtaining weather/safety leave.

OPM response: The reason behind the rule on cancelling scheduled time off is to prevent employees from receiving paid leave when the employee was not actually going to be available to perform work. This is not a new policy and is currently reflected in OPM's operating status guidance for the Washington, DC, area. One good example is a situation in which an employee is on vacation in a distant location. Based on the unions' position, such an employee should be allowed to cancel preapproved leave and receive weather/safety leave even though the employee was not available to work at the regular worksite and is not affected by the weather/safety emergency. Another example is an employee who is in the middle of a 6-week period of scheduled unpaid leave under the Family and Medical Leave Act in order to recover from a serious illness and who clearly has no intention to report to work on the day of a weather/safety emergency. If such an employee tried to cancel the unpaid leave on the day of the weather/safety emergency, it would clearly be for the primary purpose of obtaining weather/safety leave. Given the variety of possible circumstances, OPM cannot prescribe a simple “bright line” rule (or even a set of rules) that does not require some judgment on the part of agency officials. Supervisors and managers are regularly called upon to exercise judgment in other contexts, and OPM believes they are capable of exercising appropriate judgment in this particular context and coming to a fair decision. OPM plans on providing additional guidance in this area regarding when a cancellation of preapproved leave would not prevent the granting of weather/safety leave because the employee's leave plans are also changed due to the weather/safety emergency—for example, when a doctor's appointment that was the reason for a request for sick leave is cancelled because of the same weather/safety event (e.g., a major snowstorm), or when an employee is unable to leave for vacation because the employee's flight is cancelled due to such an event. (We note that any sick leave would mandatorily be cancelled if the doctor's appointment is cancelled and the employee is not sick.)

Comment: One individual described the two sentences in § 630.1606(c) as being contradictory. Another individual found the paragraph confusing and requested language changes to clarify that weather/safety leave was not allowed unless the employee demonstrated that the weather/safety event prevented the employee from using preapproved leave for the originally planned purpose.

OPM response: After considering these comments, OPM does not believe the sentences are contradictory and will leave the paragraph unchanged. The first sentence prohibits the granting of weather/safety leave to employees on preapproved leave. The second sentence bars an employee from receiving weather/safety leave if the agency determines that the employee cancelled preapproved leave for the primary purpose of receiving weather/safety leave. This bar does not apply to employees who cancel their preapproved leave because their leave plans are disrupted by the weather/safety event or some other reason (e.g., a cancelled medical appointment or scheduled flight to a vacation destination). These employees may be approved for weather and safety leave if not otherwise required to telework or report to work under § 630.1605. OPM will be issuing guidance that will address this provision in more detail.

Comment: One agency noted prior policy regarding early departures and asked if the regulations are intended to bar weather/safety leave whenever an employee has pre-approved leave, no matter what the circumstances of the employee's leave.

OPM response: As addressed above, employees who cancel their preapproved leave because their leave plans are disrupted by the weather/safety event may be granted weather/safety leave, and OPM will be issuing more detailed guidance on that matter. OPM will also be issuing guidance that will provide more information on the relationship of preapproved leave to early dismissal from work at a Federal office or alternate work location.

In addition to the changes noted above, OPM made minor technical changes to § 630.1604 to improve clarity. We also changed “approve” to “provide” in several places in §§ 630.1605(a) and 630.1606(c) where the context was the providing of leave, since the term “approve” might suggest the employee is requesting that a leave entitlement be invoked. There is no entitlement to weather and safety leave; it is always provided at the agency's discretion.

The Office of Management and Budget has reviewed this rule in accordance with E.O. 13563 and 12866.

This rule is not subject to the requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because the rule is related to agency organization, management, or personnel.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because it will apply only to Federal agencies and employees.

For the reasons stated in the preamble, OPM is amending part 630 of title 5 of the Code of Federal Regulations as follows:

I. Background

This document supplements and corrects the SUPPLEMENTARY INFORMATION section of the final rule entitled “Community Reinvestment Act Regulations” (the CRA final rule), published on November 24, 2017, Federal Register Document 2017-25330 (82 FR 55734), by the OCC, the Board, and the FDIC (collectively, the Agencies), by addressing two additional comments that were timely submitted but inadvertently not included in the rulemaking record of the CRA final rule. The sections of this correction document are effective as if they had been included in the SUPPLEMENTARY INFORMATION section of the CRA final rule, effective January 1, 2018.

The Agencies ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). Nevertheless, an agency can waive this notice and comment procedure if it finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest and incorporates a statement of its findings and reasons in the notice.

Section 553(d) of the APA ordinarily requires a 30-day delay in the effective date of a final rule after the date of its publication in the Federal Register. This 30-day delay in effective date can be waived, however, if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued.

The Agencies do not believe that this correction document constitutes a rule that would be subject to APA notice and comment or delayed effective date requirements. The document corrects and supplements the Agencies' discussion of public comments in the SUPPLEMENTARY INFORMATION section of the CRA final rule and does not make any changes to the regulatory text in the CRA final rule or otherwise alter the CRA final rule's effect. As a result, this correction document is intended to ensure that the CRA final rule's SUPPLEMENTARY INFORMATION section accurately reflects the record of comments received and the Agencies' responses.

Moreover, even if the notice and comment and delayed effective date requirements applied to this rule, the Agencies find that there is good cause to waive those requirements because they are unnecessary as the CRA final rule had been previously subjected to the notice and comment procedures. As noted above, the Agencies are merely supplementing and correcting a discussion of public comments in the SUPPLEMENTARY INFORMATION section through this correction document. The Agencies are not making any changes to the regulatory text in the CRA final rule. Therefore, the Agencies find it unnecessary to undertake further notice and comment procedures with respect to this correction document.

In the SUPPLEMENTARY INFORMATION section of the CRA final rule, the Agencies discussed amendments to their Community Reinvestment Act (CRA) regulations. The Agencies referenced two public comments received in response to the Notice of Proposed Rulemaking for those amendments 1 and provided responses to those comments. However, due to an inadvertent clerical error, the Agencies did not become aware of two additional comment letters that were timely submitted until after the Agencies had finalized and issued the amendments.

After analyzing the two additional comment letters, the Agencies have determined that no changes to the regulatory text in the CRA final rule are necessary. However, the Agencies are revising the administrative record to include the correct number of public comments received, the analysis of all comments received, and the Agencies' responses to the comments.

1. On page 55734, the third full paragraph in the third column is revised to read as follows:

“Together, the Agencies received four comment letters on the proposed amendments. One comment was from a community organization, two comment letters were from industry trade associations, and one comment was from a financial institution. Commenters generally supported the changes proposed by the Agencies, although each also raised concerns regarding certain aspects of the proposed rule and made other suggestions not related to the proposal. As explained below, the Agencies are finalizing the amendments as proposed.”

2. On page 55735, the second full paragraph in the third column (continued in the first column on page 55736) and the first full paragraph in the first column on page 55736 are revised, and one paragraph is added following them to read as follows:

“The Agencies received three comment letters addressing this proposed revision. Two of the commenters supported the Agencies' efforts to conform the definition of “home mortgage loan” in the Agencies' CRA regulations to the scope of reportable transactions in Regulation C; one commenter opposed it. Of the two commenters supporting the proposed amendments, a community organization noted that some banks expressed concern that including home equity products (closed-end home equity loans and open-end home equity lines of credit) in CRA evaluations could have the effect of lowering the overall percentage of home mortgage loans made to low- and moderate-income borrowers and suggested that the Agencies consider evaluating home equity lending separately from other types of home lending. This commenter also urged the Agencies to consider loan purchases separately from originations during the CRA evaluation. A trade association opposed the proposed amendment to the “home mortgage loan” definition. This commenter recommended that data related to home equity products not be included in the CRA reports provided to the Agencies and the Agencies' analysis of home mortgage loans for purposes of the CRA evaluation. The commenter suggested that the Agencies only consider home equity-related data at the option of the financial institution. The commenter stated that treating home equity products in the same manner as purchase money mortgages or other real estate-secured lending fails to address the significant differences in the availability and use of these products across different geographies and income.

“The Agencies have considered all comments and are finalizing the amendment to the “home mortgage loan” definition as proposed. First, the commenter's suggestion to consider home mortgage loan purchases separately from loan originations would require a change to the lending test in the CRA regulations (12 CFR 25.22, 195.22, 228.22, and 345.22), which is beyond the scope of the proposed amendments. Second, excluding home equity loans and home equity lines of credit from the “home mortgage loan” definition would create an inconsistency between the CRA and HMDA regulations and a separate reporting requirement for CRA reporters that are also HMDA reporters. The change in the “home mortgage loan” definition does not require that the Agencies evaluate home mortgage loans with different purposes (e.g., home purchase, refinance, home improvement) the same during the CRA evaluation. Instead, the Agencies note that, as with all aspects of an institution's CRA performance evaluation, the Agencies will consider the performance context of the financial institution when evaluating its performance related to home mortgage lending, including home equity products. The Agencies emphasize that performance context may include additional information to explain how various loan products may impact bank performance. The Agencies believe that the commenters' concerns can be addressed effectively through the supervisory process. Accordingly, the Agencies are finalizing the revised definition of “home mortgage loan” as proposed.

“As we stated in the proposed rule, the Agencies have relied on the scope of HMDA-reportable transactions to define “home mortgage loan” in the CRA regulations, in order to reduce burden on institutions by avoiding unnecessary costs and confusion, and have made conforming changes when the scope of HMDA-reportable transactions has changed, provided that the revised terms continue to meet the statutory purposes of the CRA. The Agencies are aware that the Bureau announced its intention to open a rulemaking to reconsider various aspects of the 2015 HMDA Rule in its December 21, 2017, Public Statement on Home Mortgage Disclosure Act Compliance, which is available at https://www.consumerfinance.gov/about-us/newsroom/cfpb-issues-public-statement-home-mortgage-disclosure-act-compliance/. The Agencies will continue to review and monitor any new developments, including any amendments made to the cross-referenced definitions in HMDA and Regulation C that impact the CRA regulations, to ensure that such cross-referenced terms continue to meet the statutory objectives of the CRA.”

3. On page 55736, the first and second full paragraphs in the second column are revised and two paragraphs are added following them to read as follows:

“The Agencies received three comments addressing the proposed revision. These commenters supported amending the definition of “consumer lending” in the Agencies' CRA regulations to conform to changes in the scope of loans reportable under Regulation C, which will be effective January 1, 2018, but made additional suggestions, including some not related to the proposal. A trade association urged the Agencies to consider automatically home improvement loans not secured by a dwelling if the financial institution opts to have them considered. This commenter also suggested that if the financial institution opts not to have such loans considered, then the Agencies should not require the institution to produce data on those loans for CRA evaluation. A community organization suggested that the Agencies should have examiners evaluate consumer lending, including home improvement lending not secured by a dwelling, during CRA exams when such lending constitutes a “significant amount” of the bank's business rather than a “substantial majority,” as is currently required under 12 CFR __.22(a)(1). Another trade association encouraged the Agencies to create a fifth category under the “consumer loan” definition to take the place of the “home equity loan” category, which the Agencies proposed to remove as a result of home equity loans and home equity lines of credit being included in the amended definition of “home mortgage loan.”

“The Agencies have considered the comments and are finalizing the definition of “consumer lending” as proposed. First, the commenters' suggestions to defer always to the financial institution on the inclusion of unsecured home improvement loans and to change “substantial majority” to “significant amount” would require a change to the CRA regulations beyond the scope of the proposed amendments. Specifically, consumer loans are considered in the large bank lending test under 12 CFR __.22(a)(1) under two circumstances: “if the bank has collected and maintained [data], as required under 12 CFR __.42(c)(1), and elects to have those loans considered” or “[i]f consumer lending constitutes a substantial majority of a bank's business.” 12 CFR __.22(a)(1). Thus, in the case of financial institutions evaluated under the large bank lending test, following these commenters' recommendations would require a regulatory change in the retail lending test under 12 CFR __.22(a)(1), which was not proposed.

“Further, in regard to the commenter's suggestion to use “significant amount” instead of “substantial majority,” loan products evaluated in the small and intermediate small bank tests are generally based on the financial institution's major product lines, or primary products, whichever term applies depending on the supervising agency. The categorization of consumer loans by type applies solely to financial institutions evaluated using the large bank lending test. The selection of major product lines, or primary products, for small and intermediate small banks typically involves a review of loan originations during the evaluation period, by loan type, along with a discussion with bank management to understand the bank's business focus. As a result, examiners already may include or exclude home improvement loans in evaluating bank performance if they are not a major product line, or primary product, as applicable.

“Second, the Agencies do not believe that creating a fifth, “home improvement,” category of consumer loans is warranted given the flexibility already provided through the supervisory process. Additionally, creating a separate “home improvement loan” category of consumer loans could result in additional burden for many financial institutions, particularly community banks, through the separate tracking of loans and could result in a double counting of loans, under HMDA and CRA, for home improvement purposes that are secured by a dwelling. For these reasons, the Agencies opted to consider home improvement loans not secured by a dwelling included in evaluating performance under the large bank lending test under the existing consumer loan categories of “other secured” and “other unsecured,” rather than to create a new category of consumer loans. Accordingly, the Agencies are finalizing the definition of “consumer lending” as proposed. We note, however, that although the Agencies are not adopting changes pursuant to the commenters' recommendations, the Agencies regularly review examination policies, procedures, guidance, and the CRA regulations to better serve the goals of the CRA.”

4. On page 55736, the first full paragraph in the third column is revised to read as follows:

“The Agencies received two comments on the proposed changes to the CRA public file content requirements. One trade association supported the Agencies' efforts to streamline the public file content requirements to make it consistent with the new HMDA public disclosure requirements. Another trade association suggested that because financial institutions will no longer need to provide HMDA Loan Application Registers to the public, financial institutions should also not be required to produce their CRA Loan Application Registers (CRA LARs) so as to reduce regulatory burden. Changing the requirements in the CRA public file with respect to CRA LARs would require a regulation change that was not proposed by the Agencies and did not have the benefit of notice and comment. Accordingly, the Agencies are adopting the revisions as proposed.”

The substance of these special conditions previously has been published in the Federal Register for public comment. These special conditions have been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for adopting these special conditions upon publication in the Federal Register.

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

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

On November 20, 2014, Textron applied for a type certificate for their new Model 700 series airplanes. The Textron Model 700 series airplanes are transport-category, twin turbofan-powered airplanes with standard seating provisions for up to 12 passengers and 2 crewmembers, and a maximum takeoff weight of 39,500 lbs.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.17, Textron must show that the Model 700 series airplanes meet the applicable provisions of part 25, as amended by amendments 25-1 through 25-141.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Textron Model 700 series airplanes because of novel or unusual design features, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design features, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Textron Model 700 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

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

The Textron Model 700 series airplanes will incorporate the following novel or unusual design features:

These airplanes are equipped with systems (i.e. with flight control systems, autopilots, stability augmentation systems, load alleviation systems, flutter control systems, fuel management systems, etc.) that, directly or as a result of failure or malfunction, affect its structural performance.

Current regulations do not take into account the effects of systems on structural performance including normal operation and failure conditions. Special conditions are needed to account for these features. These special conditions define criteria to be used in the assessment of the effects of these systems on structures. The general approach of accounting for the effect of system failures on structural performance is extended to include any system in which partial or complete failure, alone or in combination with other system partial or complete failures, would affect structural performance.

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

As discussed above, these special conditions are applicable to the Textron Model 700 series airplanes. Should Textron apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

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

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Textron Aviation Inc. Model 700 series airplanes.

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

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

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

2. Depending upon the specific characteristics of the airplane, additional studies may be required that go beyond the criteria provided in these special conditions in order to demonstrate the capability of the airplane to meet other realistic conditions, such as alternative gust or maneuver descriptions for an airplane equipped with a load alleviation system.

3. The following definitions are applicable to these special conditions:

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

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

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

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

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

4. General. The following criteria will be used in determining the influence of a system and its failure conditions on the airplane structure.

5. System fully operative. With the system fully operative, the following apply:

a. Limit loads must be derived in all normal operating configurations of the system from all the limit conditions specified in 14 CFR part 25, subpart C (or defined by special condition or equivalent level of safety in lieu of those specified in part 25, subpart C), taking into account any special behavior of such a system or associated functions or any effect on the structural performance of the airplane that may occur up to the limit loads. In particular, any significant nonlinearity (rate of displacement of control surface, thresholds or any other system nonlinearities) must be accounted for in a realistic or conservative way when deriving limit loads from limit conditions.

b. The airplane must meet the strength requirements of 14 CFR part 25 (static strength, residual strength), using the specified factors to derive ultimate loads from the limit loads defined above. The effect of nonlinearities must be investigated beyond limit conditions to ensure the behavior of the system presents no anomaly compared to the behavior below limit conditions. However, conditions beyond limit conditions need not be considered when it can be shown that the airplane has design features that will not allow it to exceed those limit conditions.

c. The airplane must meet the aeroelastic stability requirements of § 25.629.

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

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

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

ii. For residual strength substantiation, the airplane must be able to withstand two thirds of the ultimate loads defined in subparagraph (6)(a)(i). For pressurized cabins, these loads must be combined with the normal operating differential pressure.

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

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

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

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

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

(2) the limit gust and turbulence conditions specified in § 25.341 and in § 25.345.

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

(4) the limit yaw maneuvering conditions specified in § 25.351.

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

ii. For static strength substantiation, each part of the structure must be able to withstand the loads in paragraph (6)(b)(i) of the special condition multiplied by a factor of safety depending on the probability of being in this failure state. The factor of safety is defined in Figure 2.

The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions is unnecessary because the substance of these special conditions has been published in the Federal Register for public comment in several prior instances with no substantive comments received. The FAA therefore has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for making these special conditions effective upon publication in the Federal Register.

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

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

On November 20, 2014, Textron applied for a type certificate for the Textron Model 700 series airplanes. The Textron Model 700 series airplanes are low-wing, executive jet airplanes with seating provisions for 2 crewmembers and up to 12 passengers. These airplanes will have a maximum takeoff weight of 38,514 lbs.

Textron's proposed passenger seating arrangement(s) include a baseline 9-place and an optional 8-place and 10-place configuration. The baseline configuration includes a forward right hand belted single-place side-facing seat. An optional 10-place seat configuration includes a left hand, aft-belted, three-place side-facing couch. The multiple-place and single-place side-facing seats can be occupied for taxi, takeoff, and landing, and incorporate an inflatable airbag occupant protection system integrated into the side-facing seats. The FAA determined that inflatable airbag systems are a novel or unusual design feature and the existing airworthiness regulations do not provide adequate or appropriate safety standards.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.17, Textron must show that the Textron Model 700 series airplanes meet the applicable provisions of part 25, as amended by Amendments 25-1 through 25-141.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Textron Model 700 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Textron Model 700 series airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34 and the noise-certification requirements of 14 CFR part 36.

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

The Textron Model 700 series airplanes will incorporate the following novel or unusual design feature:

An inflatable airbag system on multiple-place and single-place side-facing seats installed in Textron Model 700 series airplanes, in order to reduce the potential for both head and leg injury in the event of an accident.

Side-facing seats are considered a novel design for transport category airplanes that include §§ 25.562 and 25.785 at Amendment 25-64 in their certification basis, and were not considered when those airworthiness standards were issued. The FAA has determined that the existing regulations do not provide adequate or appropriate safety standards for occupants of side-facing seats. To provide a level of safety that is equivalent to that afforded to occupants of forward- and aft-facing seats, additional airworthiness standards in the form of special conditions are necessary.

On June 16, 1988, 14 CFR part 25 was amended by Amendment 25-64 to revise the emergency-landing conditions that must be considered in the design of transport category airplanes. Amendment 25-64 revised the static-load conditions in § 25.561, and added a new § 25.562 that required dynamic testing for all seats approved for occupancy during takeoff and landing. The intent of Amendment 25-64 was to provide an improved level of safety for occupants on transport category airplanes. However, because most seating on transport category airplanes is forward-facing, the pass/fail criteria developed in Amendment 25-64 focused primarily on these seats. For some time, the FAA granted exemptions for the multiple-place side-facing-seat installations because the existing test methods and acceptance criteria did not produce a level of safety equivalent to the level of safety provided for forward- and aft-facing seats. These exemptions were subject to many conditions that reflected the injury-evaluation criteria and mitigation strategies available at the time of the exemption issuance.

The FAA also issued special conditions to address single-place side-facing seats based on the data available at the time the FAA issued those special conditions. Continuing concerns regarding the safety of side-facing seats prompted the FAA to conduct research to develop an acceptable method of compliance with §§ 25.562 and 25.785(b) for side-facing seat installations. That research has identified injury considerations and evaluation criteria in addition to those previously used to approve side-facing seats (see published report DOT/FAA/AR-09/41, July 2011).

One particular concern that was identified during the FAA's research program, but not addressed in the previous special conditions, was the significant leg injuries that can occur to occupants of both single- and multiple-place side-facing seats. Because this type of injury does not occur on forward- and aft-facing seats, the FAA determined that, to achieve the level of safety envisioned in Amendment 25-64, additional requirements would be needed as compared to previously issued special conditions. Nonetheless, the research has now allowed the development of a single set of special conditions that is applicable to all fully side-facing seats.

On November 5, 2012, the FAA released Policy Statement PS-ANM-25-03-R1, “Technical Criteria for Approving Side-Facing Seats,” to update existing FAA certification policy on §§ 25.562 and 25.785(a) at Amendment 25-64 for single- and multiple-place side-facing seats. This policy addresses both the technical criteria for approving side-facing seats and the implementation of those criteria. The FAA methodology detailed in Policy Statement PS-ANM-25-03-R1 was used to establish a new set of proposed special conditions that incorporated conditions for exemptions developed prior to the policy and included in these new special conditions, others that reflect current research findings specifically for neck and leg protection. We have frequently issued these new special conditions for airbag systems in the shoulder belts. While the Textron design integrate the airbag systems into the side-facing seats that deploy from a different location then the shoulder belts, the airbag will inflate at the same locations as those in the shoulder belts. Therefore, the FAA is using the same special conditions as for airbag systems in shoulder belts for this Textron design as the airbag system functions the same.

In Policy Statement PS-ANM-25-03-R1, conditions 1 and 2 are applicable to all side-facing seat installations, whereas conditions 3 through 16 represent additional requirements applicable to side-facing seats equipped with an airbag system in the shoulder belt. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to the Textron Model 700 series airplanes Should Textron apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

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

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis.

In addition to the requirements of §§ 25.562 and 25.785, the following special condition numbers 1 and 2 are part of the type certification basis of the Textron Model 700 series airplanes with side-facing seat installations. For seat places equipped with airbag systems, additional special condition numbers 3 through 16 are part of the type certification basis.

1. Additional requirements applicable to tests or rational analysis conducted to show compliance with §§ 25.562 and 25.785 for side-facing seats:

a. The longitudinal test(s) conducted in accordance with § 25.562(b)(2) to show compliance with the seat-strength requirements of § 25.562(c)(7) and (8), and these special conditions must have an ES-2re anthropomorphic test dummy (ATD) (49 CFR part 572, subpart U) or equivalent, or a Hybrid-II ATD (49 CFR part 572, subpart B, as specified in § 25.562) or equivalent, occupying each seat position and including all items contactable by the occupant (e.g., armrest, interior wall, or furnishing) if those items are necessary to restrain the occupant. If included, the floor representation and contactable items must be located such that their relative position, with respect to the center of the nearest seat place, is the same at the start of the test as before floor misalignment is applied. For example, if floor misalignment rotates the centerline of the seat place nearest the contactable item 8 degrees clockwise about the airplane x-axis, then the item and floor representations must be rotated by 8 degrees clockwise also to maintain the same relative position to the seat place, as shown in Figure 1. Each ATD's relative position to the seat after application of floor misalignment must be the same as before misalignment is applied. To ensure proper loading of the seat by the occupants, the ATD pelvis must remain supported by the seat pan, and the restraint system must remain on the pelvis and shoulder of the ATD until rebound begins. No injury-criteria evaluation is necessary for tests conducted only to assess seat-strength requirements.

b. The longitudinal test(s) conducted in accordance with § 25.562(b)(2), to show compliance with the injury assessments required by § 25.562(c) and these special conditions, may be conducted separately from the test(s) to show structural integrity. In this case, structural-assessment tests must be conducted as specified in paragraph 1a, above, and the injury-assessment test must be conducted without yaw or floor misalignment. Injury assessments may be accomplished by testing with ES-2re ATD (49 CFR part 572, subpart U) or equivalent at all places. Alternatively, these assessments may be accomplished by multiple tests that use an ES-2re at the seat place being evaluated, and a Hybrid-II ATD (49 CFR part 572, subpart B, as specified in § 25.562) or equivalent used in all seat places forward of the one being assessed, to evaluate occupant interaction. In this case, seat places aft of the one being assessed may be unoccupied. If a seat installation includes adjacent items that are contactable by the occupant, the injury potential of that contact must be assessed. To make this assessment, tests may be conducted that include the actual item, located and attached in a representative fashion. Alternatively, the injury potential may be assessed by a combination of tests with items having the same geometry as the actual item, but having stiffness characteristics that would create the worst case for injury (injuries due to both contact with the item and lack of support from the item).

c. If a seat is installed aft of structure (e.g., an interior wall or furnishing) that does not have a homogeneous surface contactable by the occupant, additional analysis and/or test(s) may be required to demonstrate that the injury criteria are met for the area which an occupant could contact. For example, different yaw angles could result in different injury considerations and may require additional analysis or separate test(s) to evaluate.

d. To accommodate a range of occupant heights (5th percentile female to 95th percentile male), the surface of items contactable by the occupant must be homogenous 7.3 inches (185 mm) above and 7.9 inches (200 mm) below the point (center of area) that is contacted by the 50th percentile male size ATD's head during the longitudinal test(s) conducted in accordance with paragraphs 1a, 1b, and 1c, of these special conditions. Otherwise, additional head-injury criteria (HIC) assessment tests may be necessary. Any surface (inflatable or otherwise) that provides support for the occupant of any seat place must provide that support in a consistent manner regardless of occupant stature. For example, if an inflatable shoulder belt is used to mitigate injury risk, then it must be demonstrated by inspection to bear against the range of occupants in a similar manner before and after inflation. Likewise, the means of limiting lower-leg flail must be demonstrated by inspection to provide protection for the range of occupants in a similar manner.

e. For longitudinal test(s) conducted in accordance with § 25.562(b)(2) and these special conditions, the ATDs must be positioned, clothed, and have lateral instrumentation configured as follows:

i. ATD positioning:

(1) Lower the ATD vertically into the seat while simultaneously (see Figure 2 for illustration):

(a) Aligning the midsagittal plane (a vertical plane through the midline of the body; dividing the body into right and left halves) with approximately the middle of the seat place.

(b) Applying a horizontal x-axis direction (in the ATD coordinate system) force of about 20 lbs. (89 N) to the torso at approximately the intersection of the midsagittal plane and the bottom rib of the ES-2re or lower sternum of the Hybrid-II at the midsagittal plane, to compress the seat back cushion.

(c) Keeping the upper legs nearly horizontal by supporting them just behind the knees.

(2) Once all lifting devices have been removed from the ATD:

Rock it slightly to settle it in the seat.

(a) Separate the knees by about 4 inches (100 mm).

(b) Set the ES-2re's head at approximately the midpoint of the available range of z-axis rotation (to align the head and torso midsagittal planes).

(c) Position the ES-2re's arms at the joint's mechanical detent that puts them at approximately a 40 degree angle with respect to the torso. Position the Hybrid-II ATD hands on top of its upper legs.

(d) Position the feet such that the centerlines of the lower legs are approximately parallel to a lateral vertical plane (in the aircraft coordinate system).

ii. ATD clothing: Clothe each ATD in form-fitting, mid-calf-length (minimum) pants and shoes (size 11E) weighing about 2.5 lbs. (1.1 Kg) total. The color of the clothing should be in contrast to the color of the restraint system. The ES-2re jacket is sufficient for torso clothing, although a form-fitting shirt may be used in addition if desired.

iii. ES-2re ATD lateral instrumentation: The rib-module linear slides are directional, i.e., deflection occurs in either a positive or negative ATD y-axis direction. The modules must be installed such that the moving end of the rib module is toward the front of the aircraft. The three abdominal-force sensors must be installed such that they are on the side of the ATD toward the front of the aircraft.

f. The combined horizontal/vertical test, required by § 25.562(b)(1) and these special conditions, must be conducted with a Hybrid II ATD (49 CFR part 572, subpart B, as specified in § 25.562), or equivalent, occupying each seat position.

g. Restraint systems:

i. If inflatable restraint systems are used, they must be active during all dynamic tests conducted to show compliance with § 25.562.

ii. The design and installation of seat-belt buckles must prevent unbuckling due to applied inertial forces or impact of the hands/arms of the occupant during an emergency landing.

2. Additional performance measures applicable to tests and rational analysis conducted to show compliance with §§ 25.562 and 25.785 for side-facing seats:

a. Body-to-body contact: Contact between the head, pelvis, torso, or shoulder area of one ATD with the adjacent-seated ATD's head, pelvis, torso, or shoulder area is not allowed. Contact during rebound is allowed.

b. Thoracic: The deflection of any of the ES-2re ATD upper, middle, and lower ribs must not exceed 1.73 inches (44 mm). Data must be processed as defined in Federal Motor Vehicle Safety Standards (FMVSS) 571.214.

c. Abdominal: The sum of the measured ES-2re ATD front, middle, and rear abdominal forces must not exceed 562 lbs. (2,500 N). Data must be processed as defined in FMVSS 571.214.

d. Pelvic: The pubic symphysis force measured by the ES-2re ATD must not exceed 1,350 lbs. (6,000 N). Data must be processed as defined in FMVSS 571.214.

e. Leg: Axial rotation of the upper-leg (femur) must be limited to 35 degrees in either direction from the nominal seated position.

f. Neck:

As measured by the ES-2re ATD and filtered at CFC 600 as defined in SAE J211:

i. The upper-neck tension force at the occipital condyle (O.C.) location must be less than 405 lbs. (1,800 N).

ii. The upper-neck compression force at the O.C. location must be less than 405 lbs. (1,800 N).

iii. The upper-neck bending torque about the ATD x-axis at the O.C. location must be less than 1,018 in lbs. (115 Nm).

iv. The upper-neck resultant shear force at the O.C. location must be less than 186 lbs. (825 N).

g. Occupant (ES-2re ATD) retention: The pelvic restraint must remain on the ES-2re ATD's pelvis during the impact and rebound phases of the test. The upper-torso restraint straps (if present) must remain on the ATD's shoulder during the impact.

h. Occupant (ES-2re ATD) support:

i. Pelvis excursion: The load-bearing portion of the bottom of the ATD pelvis must not translate beyond the edges of its seat's bottom seat-cushion supporting structure.

ii. Upper-torso support: The lateral flexion of the ATD torso must not exceed 40 degrees from the normal upright position during the impact.

3. For seats with an airbag system, show that the airbag system will deploy and provide protection under crash conditions where it is necessary to prevent serious injury. The means of protection must take into consideration a range of stature from a 2-year-old child to 95th percentile male. The airbag system must provide a consistent approach to energy absorption throughout that range of occupants. When the seat systems include airbag systems, the systems must be included in each of the certification tests as they would be installed in the airplane. In addition, the following situations must be considered:

a. The seat occupant is holding an infant.

b. The seat occupant is a pregnant woman.

4. The airbag systems must provide adequate protection for each occupant regardless of the number of occupants of the seat assembly, considering that unoccupied seats may have an active airbag system.

5. The design must prevent the airbag systems from being incorrectly installed, such that the airbag systems would not properly deploy. Alternatively, it must be shown that such deployment is not hazardous to the occupant and will provide the required injury protection.

6. It must be shown that the airbag system is not susceptible to inadvertent deployment as a result of wear and tear, or inertial loads resulting from in-flight or ground maneuvers (including gusts and hard landings), and other operating and environment conditions (vibrations, moisture, etc.) likely to occur in service.

7. Deployment of the airbag system must not introduce injury mechanisms to the seated occupant or result in injuries that could impede rapid egress. This assessment should include an occupant whose belt is loosely fastened.

8. It must be shown that inadvertent deployment of the airbag system during the most critical part of the flight, will either meet the requirement of § 25.1309(b) or not cause a hazard to the airplane or its occupants.

9. It must be shown that the airbag system will not impede rapid egress of occupants 10 seconds after airbag deployment.

10. The airbag systems must be protected from lightning and high-intensity radiated fields (HIRF). The threats to the airplane specified in existing regulations regarding lightning, § 25.1316, and HIRF, § 25.1317, are incorporated by reference for the purpose of measuring lightning and HIRF protection.

11. The airbag system must function properly after loss of normal aircraft electrical power, and after a transverse separation of the fuselage at the most critical location. A separation at the location of the airbag systems does not have to be considered.

12. It must be shown that the airbag system will not release hazardous quantities of gas or particulate matter into the cabin.

13. The airbag system installations must be protected from the effects of fire such that no hazard to occupants will result.

14. A means must be available for a crew member to verify the integrity of the airbag activation system prior to each flight or it must be demonstrated to reliably operate between inspection intervals. The FAA considers that the loss of the airbag system deployment function alone (i.e., independent of the conditional event that requires the airbag system deployment) is a major-failure condition.

15. The inflatable material may not have an average burn rate of greater than 2.5 inches/minute when tested using the horizontal flammability test defined in part 25, appendix F, part I, paragraph (b)(5).

16. The airbag system, once deployed, must not adversely affect the emergency lighting system (e.g., block floor proximity lights to the extent that the lights no longer meet their intended function).

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Textron Aviation Inc. (Textron) Models 510, 680, and 680A airplanes equipped with brake assemblies, part numbers (P/Ns) 2-1706-1 and 2-1675-1, with certain serial numbers. The NPRM published in the Federal Register on December 11, 2017 (82 FR 58140). The NPRM was prompted by a report that brake pad wear indicator pins were set incorrectly, which could lead to brake pad wear beyond the acceptable limits without indication. Brakes overhauled by UTC may have wear indicator pins set longer than specified. UTC discovered this condition during their inspection of incoming brakes. This condition, if not corrected, could result in brake pad wear beyond the acceptable limits without indication and consequent loss of braking ability, which could lead to a runway excursion. We are issuing this AD to address the unsafe condition on these products.

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

Mark Mitcheson of NetJets Aviation requested specifics on “FAA-approved replacement instructions approved specifically for this AD.” We infer he wants clarification of the intent of this statement.

We agree that the language quoted by the commenter and used in the NPRM was confusing. We intended to direct those responsible for complying with the requirements of the AD to the type certificate holder, in this case Textron Aviation Inc., to obtain the replacement instructions (i.e., maintenance manuals) specific to the applicable airplane models affected by this AD.

We modified in this AD the language quoted by the commenter to more accurately reflect our intent.

Mark Mitcheson requested whether the AD should prohibit the installation of the affected parts.

We partially agree. We agree operators should avoid installing the affected part because parts that do not meet type design could introduce the unsafe condition onto the airplane. However, we disagree with adding a specific requirement to the AD prohibiting the installation of the affected part. This AD requires inspection of the installed affected parts, and, if an affected part is installed, the airplane will immediately be subject to the requirements of this AD.

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

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

We reviewed UTC Aerospace Systems Service Bulletin 2-1706-1-32-1, Revision 1, dated July 18, 2017; and UTC Aerospace Systems Service Bulletin 2-1675-32-2, Revision 1, dated July 18, 2017. For the applicable models, the service information identifies the affected serial number brake assemblies and describes procedures for inspecting the wear indicator pins. 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. These UTC service bulletins are included as attachments with the Textron service letters discussed in the Other Related Service Information paragraph.

We also reviewed Textron Aviation Inc. Service Letters SL510-32-08, SL680-32-15, and SL680A-32-05, all dated July 21, 2017. For the applicable airplane models, these service letters direct the operators to use Goodrich Service Bulletins 2-1706-1-32-1 and 2-1675-32-2. However, the Goodrich Service Bulletins that the Textron Aviation Inc. Service Letters refer to and intend for operators to use are titled UTC Aerospace Systems Service Bulletin 2-1706-1-32-1, Revision 1, dated July 18, 2017; and UTC Aerospace Systems Service Bulletin 2-1675-32-2, Revision 1, dated July 18, 2017. The UTC Aerospace Systems service bulletins are included as attachments to the Textron service letters.

We estimate that this AD affects 668 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 airplanes that might need these replacements:

According to the manufacturer, the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

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

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 small airplanes, gliders, balloons, airships, domestic business jet transport airplanes, and associated appliances to the Director of the Policy and Innovation 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 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 Embraer S.A. Models EMB-500 and EMB-505 airplanes. The NPRM was published in the Federal Register on December 4, 2017 (82 FR 57172). The NPRM proposed to correct an unsafe condition for the specified products and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country. The MCAI states:

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and the FAA's response to each comment.

Eduardo Cerdeira and Ricardo Hollerbach, both from Embraer S.A., commented that all of the affected airplanes have been inspected with no faults found; therefore, there is no need for the proposed AD. They state that, since the issuance of the original versions of the service information for the two affected fleets, Embraer S.A. has been in direct contact with all the applicable operators in the world to encourage them to accomplish the required inspections as soon as possible. Since the start of the inspections, the commenters state that the completion status has been provided to the FAA, as well as the aviation authorities of Europe (EASA), and Brazil (ANAC). As of December 6, 2017, they stated that all affected airplanes, as defined in the current service information, have been inspected with no faults found. Finally, the commenters provided tables showing each of the affected airplane serial numbers and the date on which the applicable service information was accomplished.

We don't agree with this comment. The FAA contacted Embraer. S.A. to obtain records to show that all airplanes were in compliance with the actions in this AD. Embraer S.A. informed the FAA that they were unable to provide such information. While the FAA appreciates the effort that the commenters went to in order to assure that the unsafe condition was addressed on the affected airplanes, our policy of not accepting assurance from a design approval holder that all products are in compliance as a reason to not issue an AD action requires us to move forward with the issuance of the final rule AD. Please note that the Action and Compliance paragraph within the FAA AD begins with the phrase “unless already done”, which may apply in this case.

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

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

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

Embraer S.A. has issued PHENOM by Embraer Alert Service Bulletin 500-27-A026, Revision 1, dated October 6, 2017; and PHENOM by Embraer Alert Service Bulletin 505-27-A028, Revision 2, dated October 6, 2017. For the applicable models, the service information describes procedures for inspection of the aileron trim tab, rudder trim tab, and elevator trim tab, and, if required, application of torque and installation of a cotter pin. 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 of this AD.

We estimate that this AD will affect 114 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour.

Based on these figures, we estimate the cost of this AD on U.S. operators to be $9,690, or $85 per product.

In addition, we estimate that any necessary follow-on actions would take about 3 work-hours and require parts costing $50, for a cost of $305 per product. We have no way of determining the number of products that may need these actions.

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

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

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 small airplanes, gliders, balloons, airships, domestic business jet transport airplanes, and associated appliances to the Director of the Policy and Innovation Division.

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

For the reasons discussed above, I certify this AD:

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

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

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

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

You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-1119; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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

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

On March 2, 2018, the Coast Guard published a temporary deviation entitled, “Drawbridge Operation Regulation; Curtis Creek, Baltimore, MD” in the Federal Register (83 FR 8938). Subsequent to the that publication, CSX Corporation requested a modification, extending the temporary deviation from 2:31 p.m. on March 30, 2018, through 2:30 p.m. on April 13, 2018. This extension is necessary to provide more time to perform and complete the installation of railroad ties, due to extreme inclement weather which occurred during the previous temporary deviation. Therefore, the Coast Guard modifies the dates of the previously approved temporary deviation to allow the CSX Swing Bridge that carries CSX railroad across the Curtis Creek, mile 1.4, at Baltimore, MD, to remain in the closed-to-navigation position from 8 a.m. to 2:30 p.m., Monday through Friday, from March 5, 2018, through April 13, 2018. The bridge has a vertical clearance of 13 feet above mean high water in the closed position and unlimited clearance in the open position. The current operating schedule is set out in 33 CFR 117.5.

The Curtis Creek is used by a variety of vessels including U.S. government and public 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 open on signal, if at least one hour notification is given. The bridge will be able to open for emergencies, if at least 15 minutes notification is given. The bridge may be contacted at (410) 354-5593 24 hours per day. 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 waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transit 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.

The event director, DelMoSports LLC, with approval from the Cape May County Bridge Commission, who owns and operates the Grassy Sound Channel (Ocean Drive) Bridge, across Grassy Sound Channel, mile 1.0, at Middle Township, NJ, requested a temporary deviation from the current operating regulations to accommodate the free movement of pedestrians and vehicles during the 2018 “MudHen Half Marathon”.

The current operating schedule is set out in 33 CFR 117.721. Under this temporary deviation, the drawbridge will be maintained in the closed-to-navigation position from 7:30 a.m. to 11 a.m. on April 29, 2018. The Grassy Sound Channel is used by a variety of vessels including small commercial vessels and recreational vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.

Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels unable to pass through the bridge in the closed position. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notice to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impacts caused by this 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.

On June 9, 2015, VA published a proposed rule in the Federal Register at 80 FR 32513, suggesting changes to 38 CFR 4.77 through 4.79, the portion of the VASRD pertaining to the organs of special sense and schedule of ratings—eye. VA invited interested parties to submit comments on or before August 10, 2015. VA received five comments.

VA proposed several revisions to the General Rating Formula for Diseases of the Eye, including a new definition of incapacitating episodes that used the number of clinic visits required to treat active eye disease as a means of quantifying the level of disability. VA also proposed to apply the formula to more diagnostic codes (DCs).

Two comments regarding the proposed updates to the General Rating Formula, specifically regarding missing definitions, were received. One commenter asked for clarification of “per year” in regard to measuring the number of visits for medical treatment. VA appreciates the comment concerning how “per year” is defined, and will further clarify the relevant time period by substituting the phrase “within the past twelve months” for the phrase “per year.” The change of phrasing to “within the past twelve months” is consistent with VA's practice of assigning “staged ratings” where the evidence shows that different ratings are appropriate for distinct periods of time. See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The same commenter asked why VA did not define “active eye disease” in the proposed rule. VA appreciates the comment, and for the reasons outlined below, will remove “active eye disease” as a term that requires definition.

The majority of the comments regarding the proposed updates, however, concerned the revision to “incapacitating episodes.” Two commenters did not agree with using the number of clinic visits to quantify the severity of incapacitating episodes, noting that many conditions are severely disabling even though they may not require frequent visits to a medical professional. We note that the rating schedule already provides for ratings based on impairment of visual acuity, as well as other disabling features such as disfigurement. This new general rating formula provides an alternative basis for evaluating impairment of earning capacity where a veteran's functioning might be minimally impaired but where the eye condition causes lost work time due to treatment. In addition, these two particular comments cite conditions which would be more appropriately evaluated under criteria other than the general rating formula, as the general rating formula as proposed was directed toward active eye diseases, not conditions where the severity of visual impairment or disfigurement is relatively static. Other commenters expressed concern that the definition only considered the frequency of episodes, not the severity of each episode or of the actual disability itself. Another comment questioned the effect of the proposed definition of incapacitating episodes for eye conditions, noting that the same term was defined differently when applied to other body systems within the rating schedule. One commenter stated the use of clinician visits disadvantaged veterans without readily available access to specialty care. The purpose of the proposed rule was to provide evaluations based on the duration of treatment for an active eye disease. Treatment for an active eye disease is generally available to veterans, whether through VA, VA-authorized community care, or care from providers completely independent of VA. Additionally, we note that current rating criteria define an incapacitating episode in terms of acute symptoms requiring treatment, so any concern arising out of access to care would apply equally to current regulations.

After reviewing all of the comments pertaining to “incapacitating episodes,” and “clinic visits,” VA will further clarify how it will incorporate specified clinical visits to this body system. These visits are typically associated with time away from work (an earnings loss proxy) applicable to the definition of “incapacitating episodes.” See 38 U.S.C. 1155, 38 CFR 4.1 (stating that the purpose of the rating schedule is to represent the average impairment in earning capacity resulting from diseases and injuries in civil occupations).

The current definition for incapacitating episodes calls for acute symptoms that require prescribed bedrest and treatment by a provider. Evaluation is based on the total duration of incapacitating episodes. While prescribed bedrest may be an excellent proxy for earnings loss, modern medicine rarely, if ever, uses it for treatment.

The definition for incapacitating episodes in the proposed rule sought to use more quantifiable measures than the current regulation. It called for active eye disease that required a visit to a provider for treatment, monitoring, or management of complications related to the active eye disease. VA would base the evaluation on the number of clinic visits within a one-year period. While clinic visits provide an easily quantifiable and consistent metric, the correlation between clinic visits and impairment in earning capacity may be strong or weak depending on the purpose of the visits.

Based on the comments received, as well as the underlying intent for the changes in the proposed rule, VA believes that targeted modifications to the definition for “incapacitating episodes” and to the criteria in the General Rating Formula effectively address the concerns raised in the comments, as well as remain consistent with the intent of the proposed rule. First, VA will use Note (1) under the General Rating Formula to clarify that an incapacitating episode is “an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes.” This definition distinguishes between treatment visits and visits for other purposes. Treatment visits can typically require two to three days away from work to allow for recovery from the treatment, in addition to the time needed for the treatment visit itself. In contrast, a clinic visit for diagnostic, monitoring, or screening purposes would only require time away from work for the visit itself. The criteria are specifically designed to account for situations when a Veteran can have relatively normal function, but has to take extensive time off work due to the treatment program. Therefore, counting only treatment visits as opposed to all clinic visits provides a better proxy for average impairment in earning capacity because it has a stronger correlation to the impact on the ability to work. We will move the list of treatment examples found in the second sentence to Note (1) of proposed § 4.79 to Note (2) and renumber proposed § 4.79 Note (2) as Note (3).

The current criteria for the General Rating Formula base evaluations on the total number of days spent incapacitated within a 12-month period. The criteria in the proposed rule, on the other hand, bases evaluations on the number of clinic visits for treatment or monitoring of an active eye disease within a year. As VA is changing the criteria in the final rule to count only those clinic visits made for the purpose of treatment, VA will modify the number of visits required for all evaluations. The criteria will now read: For the 60 percent evaluation, “With documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months.” The 40 percent evaluation will read, “With documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months.” The 20 percent evaluation will read, “With documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months.” Finally, the 10 percent evaluation will read, “With documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months.”

VA proposed organizing most of the DCs within § 4.79 under headings that reflected the part of the eye affected by ratable conditions. Two commenters supported these organizational changes. Other commenters recommended moving various diagnostic codes from one proposed category to another proposed category. VA thanks the commenters for their support and suggestions; however, VA has reconsidered this organizational change, noting that it would create more administrative complexity in rating by making it more difficult to locate the most appropriate DC for evaluation purposes. Therefore, VA is withdrawing the proposed organizational changes found in the proposed rule.

One commenter suggested that the definition of visual impairment should be revised to include multiple images, ghosting, halos, starbursts, sensitivity to light, ability to drive at night or participate in low-light activities, and read a computer screen without eyestrain and headaches. VA disagrees with this proposal, as the symptoms noted are almost always accompanied by measurable changes in visual acuity, visual field defects or muscle function, all of which form the basis of the current definition of visual impairment under 38 CFR 4.75. If VA followed the commenter's suggestion, a Veteran could have a complete resolution of disability associated with visual acuity, visual fields, and/or muscle testing, but still receive compensation for non-occupationally significant symptoms. Therefore, VA declines to make any changes based on this comment.

The same commenter also suggested that VA provide a minimum evaluation of 50 percent when the symptoms in the proposed definition affected a normal lifestyle. Section 1155 of title 38, United States Code, requires VA to base disability ratings, as far as practicable, on the average impairments of earnings capacity in civil occupations resulting from such injuries, and not on disruptions to lifestyle. See also 38 CFR 4.1. For this reason, VA is unable to make any changes based upon this comment.

Another commenter suggested that VA should not consider Goldmann charts and electronic medical records generated during treatment at a VA Blind Rehabilitation Center, VA eye clinic, or private provider when rating visual conditions, because such examinations are not created for VA rating purposes. The commenter stated that Goldmann charts at VA Blind Rehabilitation Centers are often marked as “NOT FOR VA RATNG PURPOSES.” However, electronic treatment records from a VA Blind Rehabilitation Center do not always include the notation. The commenter stated that Veterans may “not want to risk a potential reduction in their VA disability rating” if VA would use evidence generated by treatment for disability rating purposes. VA disagrees. Such marks on VA Blind Rehabilitation Center records indicate only that they were generated as part of a treatment program, not as a part of the VA disability claims process. The evidentiary standard has already been established in 38 CFR 4.77. If the VA Blind Rehabilitation examination or other eye examination meets the standard outlined in 38 CFR 4.77, then VA reserves the option to use the examination as evidence for rating purposes, consistent with the general legal requirement that VA consider all evidence of record. See 38 U.S.C. 5107(b), 38 CFR 3.303(a). Further, we disagree with the commenter's premise that VA should deliberately ignore relevant medical evidence for rating purposes on the theory that evidence showing improvement in a veteran's disability might warrant a reduction in disability rating. VA regulations already explicitly contemplate the possibility of a reduced rating in the event a veteran's condition improves. See 38 CFR 3.327.

One commenter stated that VA should evaluate visual disability based on uncorrected visual acuity, rather than corrected visual acuity. This commenter noted that this approach would be more equitable, as it is similar to the criteria used for auditory conditions (with evaluations based on the unaided hearing). VA disagrees with this recommendation as aural and visual disabilities are distinctly different. Medical interventions for auditory conditions typically preserve or improve residual function to an extent, but do not completely restore function. On the other hand, medical interventions for visual conditions may often completely restore function. For example, hearing aids typically amplify volume at a frequency identified with hearing loss, but the amplification fails to completely restore hearing and may amplify ambient noise, adding an aural confusion not previously present. In contrast, lenses and/or surgery for visual acuity may, in most cases, actually restore normal acuity. Also, hearing aids often cost significantly more than spectacles or contact lenses, so VA would not expect or require disabled individuals to routinely own and wear them to ameliorate that disability. The visually impaired are more readily tested and fitted with corrective devices (e.g., eyeglasses or contact lenses) at far more facilities than the hearing impaired. Such significant differences in nature and treatment preclude VA from handling these two types of disabilities similarly. Therefore, VA declines to make any changes based on this comment.

Another commenter suggested developing rating requirements (providing a minimum rating) for visual conditions that cause a greater overall disability than a visual acuity test can properly record, and provided an example of a situation that focused mainly on quality of life issues. VA cannot make any changes based on this comment. As stated previously, Section 1155 of title 38, United States Code, requires VA to base disability ratings, as far as practicable, on the average impairment in earning capacity in civil occupations resulting from such diseases and injuries, and not on disruptions to lifestyle. See also 38 CFR 4.1. The example given by the commenter does not provide sufficient evidence of occupational impairment to support entitlement to the minimum rating proposed. VA will not make any changes to the final rule based on this comment.

One commenter noted that VA should consider the ability to wear corrective lenses for an entire workday, noting that some lenses cause pain. VA acknowledges that some individuals may tolerate corrective lenses better than others, but finds it impractical and unnecessary to incorporate this level of individual specificity into the evaluation criteria under DC 6035. VA notes that under 38 CFR 3.321, ratings are based upon average impairments of earning capacity as far as practicable. Under § 3.321, when an exceptional case renders the rating schedule inadequate, VA may consider an extra-schedular evaluation commensurate with the earnings loss due exclusively to the disability or disabilities. When evidence of marked interference with employment renders the regular rating schedule impractical, VA may assign an extraschedular evaluation. VA will not make any changes based on this comment.

One commenter rejected VA's proposal to no longer require the use of a Goldmann chart for visual field and/or muscle function testing. The commenter stated that a Goldmann chart is critical to detecting errors in the administration of visual examinations and in application of the rating criteria. Contrary to the statements from the commenter, VA does not use a Goldmann chart to detect errors in the examination or rating process. VA can test visual field and muscle function using manual methods (a Goldmann bowl or a tangent screen) or through automated perimetry. The automated perimetry employs software to automatically produce measurements and populate them in both chart and table format. The manual method, on the other hand, requires the examiner to manually record the values (either in table or chart format). Regardless of the method of testing, the recording of data on a chart or table has no bearing on whether the actual test values are accurate. If the test values are inaccurate, VA must reexamine the condition. As such, VA proposed to remove the Goldmann chart requirement because the actual test values, not how they are plotted on the chart, determines the evaluation assigned. This allows a rating veterans service representative to evaluate disabilities based on the test results, regardless of the format in which those results are presented, as long as the information conforms to all other regulatory requirements. It is important to note that VA will continue to accept Goldmann charts as part of a claim for visual disability. Therefore, VA will not change the proposal to eliminate the Goldmann chart requirement in visual field and/or muscle function testing.

One commenter stated that VA should automatically consider headaches and/or migraines as secondary to keratoconus and automatically grant service connection for them. Section 3.310 states when VA may grant service connection for a disability that is proximately due, or secondary, to a service-connected disease or injury. When the evidence of record establishes such a secondary relationship between keratoconus and headaches and/or migraines, VA may service connect them. However, the numerous potential causes of headaches and migraines, including co-morbid conditions that are often unrelated to military service, preclude VA from automatically granting service connection on a secondary basis without sufficient evidence showing a proximate cause. Therefore, VA will not make any changes based upon this comment.

The same commenter recommended that VA assign a minimum 30 percent evaluation for veterans with keratoconus who receive a corneal transplant. The commenter noted that a corneal transplant limits participation in recreational activities unrelated to occupational performance. VA currently provides under DC 6036 a minimum 10 percent evaluation for veterans with corneal transplants, with pain, photophobia, and glare sensitivity, regardless of the underlying disability (including keratoconus). A 10 percent minimum evaluation recognizes that, in some cases, residual symptoms may present occupational impairment. Additionally, where further visual impairment is present, a higher evaluation may be warranted, to include a 30 percent evaluation. As noted above, VA disability evaluations must be based on average impairment in earnings capacity and cannot consider the effects of a disability upon lifestyle. 38 U.S.C. 1155, 38 CFR 4.1. Furthermore, VA believes that the current evaluation criteria for corneal transplant, including those performed to treat keratoconus, accurately compensate for residual disability which may interfere with occupational performance. Therefore, VA will not make any changes based on this comment.

One commenter proposed additional evaluation criteria for DC 6042, Retinal dystrophy, to include night blindness, glare sensitivity, loss of contrast sensitivity, loss of depth perception, and loss of color vision. VA disagrees with this proposal, as the symptoms noted are almost always accompanied by measurable changes in visual acuity, visual field defects, or muscle function, all of which form the current definition of visual impairment under 38 CFR 4.75. Additionally, as previously noted, VA may assign an extraschedular evaluation under 38 CFR 3.321 when evidence of marked interference with employment renders application of the regular rating schedule impractical. Therefore, VA will not make any changes based on this comment.

One commenter stated that VA should broaden the requirements for rating visual acuity. This comment did not propose any specific requirements or alternative rating criteria to explain the suggested expansion. Without proposing an alternative rating criteria or clarifying how the requirements should be broadened, VA cannot consider revisions to the rating criteria based on this comment.

The same commenter stated that VA should provide a minimum evaluation to ensure that issues that are not being taken into account by the rating system are otherwise addressed. As previously noted, VA is required by 38 U.S.C. 1155 to base disability ratings, as far as practicable, on the average impairments of earnings capacity in civil occupations from such injuries. Current law does not allow VA to provide evaluations based on factors outside of earnings impairment. Therefore, VA is unable to make any changes based upon this comment.

One commenter suggested listing more disabilities to this portion of the rating schedule. The commenter specifically requested inclusion of wet macular degeneration, dry macular degeneration, early-onset macular degeneration, optic atrophy, and various classifications of dystrophy. VA notes that the criteria in DC 6042, Retinal dystrophy, sufficiently address the types of retinal dystrophy and other conditions noted by the commenter. However, in light of the comment, VA will amend the title of the DC to indicate additional types of dystrophy to which DC 6042 may apply.

The same commenter also suggested adding diagnostic codes for histoplasmosis, Stargardt's disease, and optic neuritis. Histoplasmosis is an infectious disease caused by inhalation of spores often found in bird and bat droppings. The symptoms include fever, chills, headache, muscle aches, dry cough, and chest discomfort. Histoplasmosis is caused by an infectious agent and produces no visual impairment and is therefore not appropriate for inclusion in the portion of the rating schedule pertaining to the eyes and visual impairment. Stargardt's disease, or Stargardt macular degeneration, is a genetic form of juvenile macular degeneration. By definition, the signs and symptoms of Stargardt's disease begin in childhood. When appropriate, VA can consider this condition as related to active military service when it is first diagnosed during active service or, if it existed prior to military service, the evidence establishes that military service aggravated the condition beyond its natural progression. 38 CFR 3.303(a), 3.306(a). VA notes that DC 6042, Retinal dystrophy, will include the additional clarifying changes noted above, and so adequately covers this category of disability. VA, therefore, makes no additional changes based on this suggestion. Meanwhile, optic neuritis is the inflammation of the optic nerve and is a sub-type of optic neuropathy, the general term for any damage of the optic nerve. VA notes that DC 6026, Optic neuropathy, adequately covers this category and sub-type of visual disability. Therefore, VA makes no additional changes based on this suggestion.

The same commenter suggested adding a minimum 10 percent evaluation under the General Rating Formula for any visual disability resulting in photophobia and glare sensitivity. VA appreciates this suggestion and notes that the rating schedule currently considers pain, photophobia, and glare sensitivity as productive of a minimum 10 percent evaluation when it is directly related to corneal transplant. 38 CFR 4.79, DC 6036. VA disagrees, however, with adding this criterion as the suggested minimum evaluation to the General Rating Formula for Diseases of the Eye. The minimum evaluation would then apply in cases where there is no clear association between the claimed photophobia and glare sensitivity and the specific visual disability subject to evaluation. As noted previously, VA can and will consider these signs/symptoms on a case-by-case basis when conducting an extraschedular review in accordance with § 3.321.

Non-substantive changes to the rulemaking have been made to correct inaccuracies and/or unnecessary language in the final rule. In the proposed rule, several DCs included the instruction to evaluate under the General Rating Formula for Diseases of the Eye, without any alternative rating criteria. However, this language is redundant in light of the instructions contained at the beginning of § 4.79, which specifically state to use the General Rating Formula for Diseases of the Eye unless otherwise instructed. Therefore, this redundant language has been removed from DCs 6026 and 6046. To further ensure that this general instruction is not missed, VA is moving this sentence outside of the rating table to immediately follow the section heading for § 4.79.

Additionally, the proposed rulemaking used the terms “evaluate” and “rate” interchangeably when indicating a disability should be evaluated in a certain manner. To maintain consistency and avoid any confusion, VA has amended the language to state “evaluate” wherever “rate” was previously used.

The text of the proposed rulemaking inadvertently omitted the portion of § 4.79 which covers evaluations based on impaired central visual acuity (DCs 6061 through 6066). VA has corrected this omission in the final rule and notes that it has not made any changes to this portion of § 4.79.

Finally, VA has made updates to Appendices A, B, and C of part 4 to reflect the above-noted changes.

Veterans Benefits Administration (VBA) personnel utilize the Veterans Benefit Management System for Rating (VBMS-R) to process disability compensation claims that involve disability evaluations made under the VASRD. In order to ensure that there is no delay in processing veterans' claims, VA must coordinate the effective date of this final rule with corresponding VBMS-R system updates. As such, this final rule will apply effective May 13, 2018, the date VBMS-R system updates related to this final rule will be complete.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action” requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of this rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.” This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule will not affect any small entities. Only certain VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the final regulatory flexibility analysis requirements of section 604.

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

This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Catalog of Federal Domestic Assistance program numbers and titles for this rule are 64.009, Veterans Medical Care Benefits; 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.109, Veterans Compensation for Service-Connected Disability; and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on December 1, 2017, for publication.

For the reasons set forth in the preamble, VA amends 38 CFR part 4 as follows:

The IFQ Program for the sablefish fishery is implemented by the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI FMP), the Fishery Management Plan for Groundfish of the Gulf of Alaska (GOA FMP), and Federal regulations at 50 CFR part 679 under the authority of the Magnuson-Stevens Act (16 U.S.C. 1801 et seq.). The Council recommended and NMFS approved the GOA FMP in 1978 and the BSAI FMP in 1982. Regulations implementing the FMPs and general regulations governing the IFQ Program appear at 50 CFR part 679.

The IFQ Program for the halibut fishery is implemented by Federal regulations at 50 CFR part 300, subpart E, and 50 CFR part 679 under the authority of the Northern Pacific Halibut Act of 1982 (Halibut Act). Fishing for Pacific halibut is managed by the International Pacific Halibut Commission (IPHC) and the Council under the Halibut Act. Section 773(c) of the Halibut Act authorizes the Council to develop regulations that are in addition to, and not in conflict with, approved IPHC regulations. Such Council-recommended regulations may be implemented by NMFS only after approval by the Secretary of Commerce.

NMFS implemented the IFQ Program for the management of the fixed gear (hook-and-line and pot gear) sablefish and halibut fisheries off Alaska in 1995 (58 FR 59343; November 9, 1993). The Council and NMFS designed the IFQ Program to allocate harvest privileges among participants in the commercial sablefish and halibut fisheries to reduce fishing capacity that had led to an unsafe “race for fish” as vessels raced to harvest their annual catch limits as quickly as possible before the annual limit was reached. A central objective of the IFQ Program was to support the social and economic character of the fisheries and the coastal fishing communities where much of the fisheries activities are based.

Under the IFQ Program, access to the fixed gear sablefish and halibut fisheries is limited to those persons holding quota share. NMFS issued separate quota share for sablefish and halibut to qualified applicants based on their historical participation during a set of qualifying years in the sablefish and halibut fisheries. Quota share is an exclusive, revocable privilege that allows the holder to harvest a specific percentage of either the total allowable catch in the sablefish fishery or the annual commercial catch limit in the halibut fishery.

NMFS annually issues IFQ permits to each quota share holder based on their quota share holdings and the amount of sablefish and halibut available for harvest. An annual IFQ permit authorizes the permit holder to harvest a specified amount of the IFQ species in a regulatory area from a specific operation type and vessel category. IFQ is expressed in pounds and is based on the amount of quota share held in relation to the total quota share pool for each regulatory area with an assigned catch limit.

The Council intended for the IFQ catcher vessel fleet to be composed primarily of quota share holders that actively participate in the fisheries by being on the vessel used to fish their IFQ. To achieve this objective, NMFS implemented requirements that individual holders of catcher vessel quota share be on board the vessel during all IFQ fishing to ensure that quota share to remain largely in the hands of active fishermen. This owner-onboard requirement was intended to promote stewardship by providing active fishermen with a vested interest in the long-term productivity of the sablefish and halibut resources. The Council and NMFS also intended for the owner-onboard requirement to provide entry level opportunities for new fishermen as initial quota share recipients transferred their quota share to new entrants and left the fishery.

The Council intended for catcher vessel quota share to be held by owner-onboard operations. However, the Council and NMFS allowed initial quota share recipients to use a hired master—a person designated by the quota share holder to land their IFQ—in order to provide initial recipients of quota share with the flexibility to continue in the business practices that they had had prior to the implementation of the IFQ Program and minimize disruption to existing business arrangements. Eligibility to use a hired master is tied to the quota share holder and not the quota share, so initial recipients could use a hired master on quota share that they acquired over time.

The Council and NMFS have amended the hired master use provision several times since implementation of the IFQ Program to further restrict the use of hired masters and ensure that quota share holders remain vested participants in the IFQ fisheries. The most recent amendment further restricted the use of hired masters by prohibiting initial quota share recipients from using a hired master to harvest IFQ derived from catcher vessel quota share received by transfer after February 12, 2010 (79 FR 43679; July 28, 2014). The final rule to implement this restriction is a limited amendment to the IFQ Program that specifies which quota share yields IFQ that can be fished by a hired master instead of the quota share holder.

The preamble to the final rule describes the need for further restrictions on the use of hired masters in the IFQ Program, and a brief summary is provided here. In February 2010, the Council received testimony that some quota share initial recipients were increasingly using hired masters rather than continuing to be personally on board their vessels when fishing with quota share. Increased use of hired masters was attributed to initial recipients purchasing increasing amounts of quota share, and the IFQ derived from that quota share was being fished by hired masters. The Council was concerned that initial recipients were consolidating quota share to be fished by hired masters and were reducing opportunities for new entrants to the fishery. The Council determined that the transition to a predominately owner-onboard fishery has been unreasonably delayed because the ability to hire a master applies to the quota share holder and not the quota share itself. This allowed initial recipients to hire masters to harvest IFQ derived not only from their initially issued quota share, but also IFQ derived from any quota share received by transfer after initial issuance. As a result, quota share had become consolidated among fewer initial recipients of quota share that use hired masters. Quota share are remaining in the hands of initial recipients who hire masters to fish the resulting IFQ instead of being transferred, which delays the progress toward the Program objective of an owner-onboard fishery and decreases opportunities for new entrants to the IFQ fishery.

To address this problem, the Council recommended and NMFS implemented the final rule to prohibit the use of a hired master to fish IFQ sablefish and halibut derived from catcher vessel quota share received by transfer after February 12, 2010, with some exceptions described in the final rule (79 FR 43679; July 28, 2014). The Analysis provides additional detail on the need for the final rule and the anticipated impacts of the final rule on affected fishery participants.

On November 16, 2016, the United States District Court, Western District of Washington found that NMFS did not properly assess the final rule in light of the National Standards in the Magnuson-Stevens Act. The United States District Court remanded the final rule to NMFS for further consideration of the National Standards in section 301(a) of the Magnuson-Stevens Act. NMFS completed this consideration after evaluating the information used to prepare the final rule, information presented to the United States District Court, and the best available information relevant to the impacts of the final rule. NMFS has determined that the final rule is consistent with the National Standards as required by the Magnuson-Stevens Act, subject to further consideration after public comment. The Analysis describes the factors NMFS considered in making this determination. NMFS requests public comment on the Analysis for consideration in its final determination of the consistency of the final rule with the Magnuson-Stevens Act National Standards.

NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2018 non-CDQ sablefish trawl ITAC in the Bering Sea subarea of the BSAI is 622 metric tons (mt) as established by the final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018). In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2018 non-CDQ sablefish trawl ITAC in the Bering Sea subarea of the BSAI will soon be reached. Therefore, NMFS is requiring that non-CDQ sablefish caught with vessels using trawl gear in the Bering Sea subarea of the BSAI be treated as prohibited species in accordance with § 679.21(b).

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the prohibited retention of non-CDQ sablefish by vessels using trawl gear in the Bering Sea subarea of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as April 4, 2018.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and § 679.21 and is exempt from review under Executive Order 12866.