Section 19 of the Federal Reserve Act (“Act”) provides that balances maintained by or on behalf of certain institutions in an account at a Federal Reserve Bank (“Reserve Bank”) may receive earnings to be paid by the Reserve Bank at least once each quarter, at a rate or rates not to exceed the general level of short-term interest rates. 1 Institutions that are eligible to receive earnings on their balances held at Reserve Banks (“eligible institutions”) include depository institutions and certain other institutions. 2 Section 19 also provides that the Board may prescribe regulations concerning the payment of earnings on balances at a Reserve Bank. 3

On June 4, 2021, the Board published a final rule in the Federal Register amending Regulation D, effective July 29, to eliminate references to “IORR” and “IOER” and replace those references with references to a single “IORB” (interest on reserve balances) rate and to establish the IORB rate at 0.10 percent. 4

The Board is amending § 204.10(b)(1) of Regulation D to establish the IORB rate at 0.15 percent. The amendment represents a 0.05 percentage point increase in the IORB rate. This decision was announced on July 28, 2021, with an effective date of July 29, 2021, in the Federal Reserve Implementation Note (“Implementation Note”) that accompanied the FOMC's statement on July 28, 2021 (“FOMC Statement”). The FOMC Statement stated that the Committee decided to maintain the target range for the Federal funds rate at 0 to 1/4 percent.

The Federal Reserve Implementation Note stated:

The Implementation Note further stated:

As a result, the Board is amending § 204.10(b)(1) of Regulation D to establish the IORB rate at 0.15 percent. The amendment is intended to establish the IORB rate at a level consistent with maintaining the Federal funds rate in the target range established by the Committee. This amendment does not reflect a change in the stance of monetary policy.

Finally, the Board is also making certain conforming deletions for clarity to the provisions of Regulation D governing interest payable on balances at Reserve Banks.

In general, the Administrative Procedure Act (“APA”)  5 imposes three principal requirements when an agency promulgates legislative rules (rules made pursuant to Congressionally-delegated authority): (1) Publication with adequate notice of a proposed rule; (2) followed by a meaningful opportunity for the public to comment on the rule's content; and (3) publication of the final rule not less than 30 days before its effective date. The APA provides that notice and comment procedures do not apply if the agency for good cause finds them to be “unnecessary, impracticable, or contrary to the public interest.”  6 Section 553(d) of the APA also provides that publication at least 30 days prior to a rule's effective date is not required for (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretive rules and statements of policy; or (3) a rule for which the agency finds good cause for shortened notice and publishes its reasoning with the rule. 7

The Board has determined that good cause exists for finding that the notice, public comment, and delayed effective date provisions of the APA are unnecessary, impracticable, or contrary to the public interest with respect to these final amendments to Regulation D. The rate change for IORB that is reflected in the final amendment to Regulation D was made with a view towards accommodating commerce and business and with regard to their bearing upon the general credit situation of the country. Notice and public comment would prevent the Board's action from being effective as promptly as necessary in the public interest and would not otherwise serve any useful purpose. Notice, public comment, and a delayed effective date would create uncertainty about the finality and effectiveness of the Board's action and undermine the effectiveness of that action. Accordingly, the Board has determined that good cause exists to dispense with the notice, public comment, and delayed effective date procedures of the APA with respect to this final amendment to Regulation D.

The Regulatory Flexibility Act (“RFA”) does not apply to a rulemaking where a general notice of proposed rulemaking is not required. 8 As noted previously, the Board has determined that it is unnecessary and contrary to the public interest to publish a general notice of proposed rulemaking for this final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

In accordance with the Paperwork Reduction Act (“PRA”) of 1995, 9 the Board reviewed the final rule under the authority delegated to the Board by the Office of Management and Budget. The final rule contains no requirements subject to the PRA.

For the reasons set forth in the preamble, the Board amends 12 CFR part 204 as follows:

Section 7(b)(2) of the Small Business Act authorizes SBA to make EIDL loans to eligible small businesses and nonprofit organizations located in a disaster area. 15 U.S.C. 636(b)(2). On March 6, 2020, Congress deemed COVID-19 to be a disaster in Title II of the Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020, Public Law 116-123, 134 Stat. 146, 147, allowing SBA to declare disasters and make EIDL loans available to small businesses and nonprofit organizations suffering substantial economic injury as a result of the COVID-19 pandemic. The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) Public Law 116-136, expanded eligibility and waived certain rules and requirements for COVID EIDL loans. Section 1110 of the CARES Act permitted SBA to waive rules related to personal guaranties on COVID EIDL loans of not more than $200,000 and the requirement that an applicant be unable to obtain credit elsewhere. Section 1110 also provided SBA with the authority to approve an applicant based solely on the credit score of the applicant or use alternative appropriate methods to determine an applicant's ability to repay. On April 24, 2020, the Paycheck Protection Program and Health Care Enhancement Act (PPP Enhancement Act) Public Law 116-139, provided additional funding for SBA to make EIDL loans and further expanded EIDL eligibility to include agricultural enterprises with not more than 500 employees, which are typically not eligible for SBA disaster assistance. Prior to the enactment of the PPP Enhancement Act, SBA had an existing $1.1 billion in credit subsidy funding, which it used to support between $7 billion and $8 billion in EIDL loans to businesses affected by the COVID-19 pandemic. The PPP Enhancement Act provided an additional $50 billion in loan credit subsidy to SBA. See 15 U.S.C. 636(b) and 13 CFR 123.300(c). On December 27, 2020, the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (Economic Aid Act), Public Law 116-260, was enacted as part of the Consolidated Appropriations Act, 2021. Section 332 of the Economic Aid Act extended the authority to make COVID EIDL loans through December 31, 2021, and further modified the terms under which SBA approves COVID EIDL loans, and Section 331 provided SBA authority to make targeted EIDL advances. On March 11, 2021, the American Rescue Plan Act (ARPA), Public Law 117-2, was enacted, establishing the Restaurant Revitalization Fund (RRF) through Section 5003 to provide assistance to restaurants, beverage alcohol producers, and other entities, and providing authority to provide supplemental Targeted Advances.

In light of the COVID-19 emergency, many small businesses nationwide have experienced economic hardship as a direct result of the Federal, State, and local public health measures that have been taken to minimize the public's exposure to the virus. These measures, some of which were government-mandated, were implemented across the country. In addition, based on the advice of public health officials, other measures, such as keeping a safe distance from others or stay-at-home orders, were implemented, resulting in a dramatic decrease in economic activity as the public avoided malls, retail stores, and other businesses. On March 16, 2021, the SBA announced that it would extend deferment periods for all disaster loans, including COVID EIDL loans, until 2022. COVID EIDL loans made in calendar year 2020 will have the first payment due date extended from 12 months to 24 months from the date of the note. COVID EIDL loans made in calendar year 2021 will have the first payment due date extended from 12 months to 18 months from the date of the note. On March 24, 2021, the SBA announced that it would increase the maximum amount that can be borrowed under the COVID EIDL program from $150,000 (6 months of economic injury) to $500,000 (24 months of economic injury).

This interim final rule is being issued without advance notice and public comment. SBA has determined that there is good cause for dispensing with advance public notice and comment on the ground that it would be “impracticable” and “contrary to the public interest.” 5 U.S.C. 553(b)(3)(B).

The intent of the statutory COVID financial assistance programs, including the COVID EIDL program, is that SBA provide relief to America's small businesses expeditiously. This intent, along with the continuing decrease in economic activity in key economic sectors as compared to 2019 and the reimposition of mask requirements and other public-health measures throughout the country because of the variants (including Delta) of COVID-19, provides good cause for SBA to dispense with advance notice and comment rulemaking, which would take months. Given that this rule is issuing in August, new changes could not go into effect until November, leaving just a few weeks to implement the new program and take applications before funding expires. This shortened program timeframe would be problematic because SBA believes, with basis, there is a tremendous demand and need for this program. Other SBA COVID relief programs have recently ended or have exhausted their funding (including the Paycheck Protection Program and the Restaurant Revitalization Fund), yet businesses and nonprofit organizations are still in need of support. As evidence of unmet need, the Restaurant Revitalization Fund received $28.6 billion in appropriations to provide assistance to the restaurant industry, but within 21 days, SBA received 278,304 applications seeking assistance in amounts totaling more than $72 billion, nearly three times the amount appropriated. Funding was quickly exhausted, leaving 177,300 businesses without assistance. Further, with the end of the Paycheck Protection Program, businesses and nonprofit organizations that are still struggling will turn to the COVID EIDL program for long-term recovery. Thus, the COVID EIDL program is more critical now than it was before, because of the lack of resources available through these other programs and because of the continuing economic instability. Issuing this rule without advance notice and comment will give small businesses, nonprofit organizations, qualified agricultural businesses, and independent contractors affected by this interim final rule the maximum amount of time to apply for COVID EIDL loans, and will give SBA the maximum amount of time to process applications before the program ends in less than five months—on December 31, 2021. In addition, 13 CFR 123.1 reserves to SBA authority to revise disaster regulations without advance notice, by publishing interim emergency regulations in the Federal Register .

Finally, given the short duration of this program and the unmet need for immediate assistance in key economic sectors, SBA has determined that it is impractical and not in the public interest to provide a delayed effective date. 5 U.S.C. 553(d). Limiting the availability of this program to a few weeks, given the needs, would result in significant avoidable economic losses—precisely the result that Congress was trying to avoid in passing and amending the COVID EIDL program. Therefore, SBA is of the view that delaying issuance to conduct notice and comment procedures would effectively void the effectiveness of these reforms to the COVID EIDL program, with significant harms resulting. Although this interim final rule is effective immediately, comments are solicited from interested members of the public on all aspects of the interim final rule. SBA will consider these comments and the need for making any revisions as a result of these comments.

Based on continuing confusion and burdensome analyses required by applicants and SBA, to simplify the program requirements of COVID EIDL such that applicants can more easily complete the affiliation analysis and to expand the number of entities that will be eligible for COVID EIDL loans, SBA will align the definition of affiliation for COVID EIDL with the definition of “affiliated business” set forth in section 5003 of the ARPA for the Restaurant Revitalization Fund (RRF). Like the RRF program, COVID EIDL is a program where an applicant applies directly to SBA, without an intermediary lender to explain program rules and ensure compliance. In SBA's regular Business Loan Programs, the applicant relies on the lender intermediary to correctly interpret and apply the affiliation rules at 13 CFR 121.301, which require an applicant to consider affiliation based on ownership, stock options, convertible securities, agreements to merge, management, identity of interest, and franchise and license agreements. Congress mandated more simple affiliation rules in ARPA for RRF. Given the lack of intermediaries in the COVID EIDL program, SBA has determined that it is appropriate to use the same affiliation rules that Congress mandated for RRF.

Therefore, SBA is revising 13 CFR 121.301, “What size standards and affiliation principles are applicable to financial assistance programs?”, to add a new paragraph (g) to state that for COVID EIDL loans, an affiliated business or affiliate is “a business in which an eligible entity has an equity interest or right to profit distributions of not less than 50 percent, or in which an eligible entity has the contractual authority to control the direction of the business, provided that such affiliation shall be determined as of any arrangements or agreements in existence as of January 31, 2020.” The new paragraph (g) also will include a cross reference to the exceptions to affiliation set forth in 13 CFR 121.103(b), which continue to apply to COVID EIDL loans.

In addition to simplifying the program requirements for COVID EIDL loans, this change will streamline the application process for SBA and facilitate the review of such applications prior to the deadline of December 31, 2021. This streamlining will expand the flow of funds to businesses and nonprofit organizations that still need relief from the COVID-19 pandemic.

The regulation at 13 CFR 123.13, “What happens if my loan application is denied?”, requires that applicants appeal a second decline of a loan application directly to the Director, Disaster Assistance Processing and Disbursement Center (DAPDC). To enable timely consideration of appeals, SBA is changing the appeals process to allow the Director, DAPDC, or the Director's designee(s), to make the decision on appeals for all Disaster Loan Program loans. In addition, SBA is revising the regulation to clarify that the Administrator, solely within the Administrator's discretion, has the authority to review the matter and make the final decision.

Therefore, SBA is revising the regulation at 13 CFR 123.13, paragraphs (e) and (f), to state that, if SBA declines an application a second time, the Director, DAPDC, or the Director's designee(s), will make the decision. Further, SBA is revising the regulation to state that the Administrator, solely within the Administrator's discretion, may choose to review the matter and make the final decision. Such discretionary authority of the Administrator does not create additional rights of appeal on the part of an applicant not otherwise specified in SBA regulations. The changes to this regulation apply to all SBA Disaster Loan Programs.

The Administrator has determined that, due to the extended duration and scope of the COVID-19 pandemic, as well as due to mandatory Federal, state, and local shut down and social distancing orders, businesses in certain sectors of the North American Industry Classification System (NAICS) continue to suffer from significant economic hardship. Specifically, the NAICS sectors and subsectors identified in Section 1112 of the CARES Act, as amended by section 325 of the Economic Aid Act, continue to need substantial help. These include Sector 61, Educational Services; Sector 71, Arts, Entertainment and Recreation; Sector 72, Accommodation and Food Services; Subsector 213, Support Activities for Mining; Subsector 315, Apparel Manufacturing; Subsector 448, Clothing and Clothing Accessories Stores; Subsector 451, Sporting Good, Hobby, Book, and Music Stores; Subsector 481, Air Transportation; Subsector 485, Transit and Ground Passenger Transportation; Subsector 487, Scenic and Sightseeing Transportation; Subsector 511, Publishing Industries (except internet); Subsector 512, Motion Picture and Sound Recording Industries; Subsector 515, Broadcasting (except internet); Subsector 532, Rental and Leasing Services; and Subsector 812, Personal and Laundry Services.

Additionally, certain industries were identified in Section 5003(a)(4) of the ARPA for additional assistance but may not have received funding due to program deadlines or the exhaustion of funds. As stated previously, the Restaurant Revitalization Fund (RRF) was unable to provide help to all eligible applicants due to a lack of funding, and many small businesses in that industry continue to suffer economic hardships caused by the pandemic. Most businesses eligible for RRF are in NAICS sector 72, Accommodation and Food Services; however, beverage manufacturers in NAICS Industry Group 3121, such as breweries, wineries, and distilleries were also eligible for RRF funding. Based on publicly available industry research and input from industry trade groups, SBA believes these beverage manufacturers continue to require additional help.

Under Section 1110 of the CARES Act, COVID EIDL loans are available to “small business concerns, private nonprofit organizations, and small agricultural cooperatives,” as defined in SBA's size standards in 13 CFR 121.201, or businesses that have 500 or fewer employees. To provide assistance to a greater number of businesses in the hard-hit industries described above, SBA is defining “small business concern” for purposes of the COVID EIDL program to extend eligibility to businesses in those industries that have 500 or fewer employees per physical location. SBA is revising 13 CFR 123.300, “Is my business eligible to apply for an economic injury disaster loan?”, by adding a new paragraph (e) to state that certain hard-hit businesses identified by specific NAICS classifications will be able to qualify as eligible small business concerns for COVID EIDL loans based on the number of employees per physical location. Consistent with the standard in RRF, businesses using the per-physical location eligibility standard must, together with affiliates, have no more than 20 locations.

This rule merely provides an added basis of eligibility for COVID EIDL assistance. It does not make any entity that is eligible for COVID EIDL assistance on another basis ineligible for such assistance. For example, a business that has more than 20 business locations, but has fewer than 500 employees in the aggregate of all of its business locations is currently eligible for COVID EIDL loans because it meets the 500-employee size standard. Although this rule allows a business concern to be eligible for COVID EIDL assistance if it employs not more than 500 employees per physical location as long as it (together with its affiliates) has no more than 20 locations, that provision does not change the current eligibility of a business concern that meets the general 500-employee size standard. For example, a business with 25 locations and 15 employees per location would not be ineligible, because the total number of employees is 375.

This rule also does not change the applicable size standards. The size standard itself remains at 500 employees (together with affiliates), as authorized by Section 1110(a)(2) of the CARES Act, or the size standard established in 13 CFR 121.201. Instead, the rule changes how the agency defines the term “business concern” for purposes of COVID EIDL assistance. The Small Business Act provides SBA with broad authority to define a “small business concern.” 15 U.S.C. 632(a)(2). By regulation, SBA generally defines a concern to be a business entity, although there are exceptions. 13 CFR 121.105. SBA applies its size standards to determine whether a concern is a small business eligible for SBA assistance, and, because of the general definition, the size standards generally apply at the entity level. In this interim final rule, based on how SBA applied the PPP's size standard at the per-physical location level for NAICS sector-72 businesses and other industries, SBA is adopting a program-specific definition of “business concern” as covering each individual physical location for industries in certain hard-hit economic sectors. As such, SBA will apply the program's size standards at the physical-location level for the identified industries. This does not change the size standards that apply to the COVID EIDL loan program. Instead, this program-specific provision changes the level at which the size standard applies—for businesses in certain sectors— i.e., to each physical location, rather than to each entity in the aggregate.

Currently, the EIDL program only permits loan proceeds to be used for working capital necessary to carry the business until resumption of normal operations and for expenditures necessary to alleviate the specific economic injury and does not permit payments on Federal debt or prepayment of non-Federal existing debt even if the debt has a balloon payment due. Prior to the pandemic, businesses, in the ordinary course of their operations, managed debt payments through cash flows of the business. Due to mandatory COVID-19 closures, some businesses did not have sufficient cash flow to service debt obligations. Despite several short-term emergency programs in the CARES Act and other statutes, many small businesses have not been able to return to normal operations, and now struggle with deferred debt, past due payments, and insufficient cash flow. With the expectation that the pandemic would not last for the duration that it has, many businesses took on short-term debt, often with unfavorable repayment terms, or negotiated deferments in debt payments in order to avoid default. In order to maximize relief from the debt burden businesses and nonprofit organizations have accrued, SBA is expanding COVID EIDL eligible uses of proceeds to include payments on all forms of business debt, including loans owned by a Federal agency (including SBA) or a Small Business Investment Company (SBIC) licensed under the Small Business Investment Act. COVID EIDL loan proceeds may be used to make debt payments including monthly payments, deferred interest, and pre-payment of business debt, except that pre-payments will not be permitted on any debt owned by a Federal agency (including SBA) or an SBIC. COVID EIDL loan proceeds may be used to pay debt incurred both before and after submitting the COVID EIDL loan application.

Therefore, SBA is revising the regulation at 13 CFR 123.303, “How can my business spend my economic injury disaster loan?”, to permit COVID EIDL working capital loan proceeds to be used to pay any type of business debt, including loans owned by a Federal agency (including SBA) or an SBIC. SBA also is revising the regulation to clarify that COVID EIDL loan proceeds may be used to make debt payments including monthly payments, payments of deferred interest, and pre-payments, except that pre-payments will not be permitted on debt that is owned by a Federal agency (including SBA) or an SBIC.

SBA is adding a new regulation to state that entities that are part of a single corporate group shall in no event receive more than $10,000,000 of COVID EIDL loans in the aggregate. For purposes of this limit, entities are part of a single corporate group if they are majority owned, directly or indirectly, by a common parent. Businesses are subject to this limitation even if the businesses are in certain hard-hit sectors and able to use the per-physical location application of the size standard as set forth in 13 CFR 123.300(e)(5).

Given the changes in the COVID EIDL maximum loan amount, eligibility, and increased outreach to industries that have been particularly hard hit by the pandemic (for example, restaurants, hotels, gyms, travel and tourism), SBA expects an increase in the number of applications submitted and average loan size. The Administrator determined that limiting the amount of COVID EIDL loans that a single corporate group may receive will promote the availability of COVID EIDL loans to the largest possible number of borrowers. The Administrator has concluded that a limitation of $10,000,000 strikes an appropriate balance between broad availability of COVID EIDL loans and program resource constraints. SBA's affiliation rules, which relate to an applicant's eligibility for COVID EIDL loans, continue to apply independent of this limitation.

SBA may provide further information through guidance that will be posted on SBA's website at www.sba.gov, if needed. Questions may be directed to an SBA Disaster Customer Service Representative at 1-800-659-2955 (individuals who are deaf or hard of hearing may call 1-800-877-8339), or a local SBA Field Office; the list of local SBA Field Offices may be found at https://www.sba.gov/tools/local-assistance/districtoffices.

OMB's Office of Information and Regulatory Affairs (OIRA) has determined that this interim final rule is economically significant for the purposes of Executive Orders 12866 and 13563. SBA, however, is proceeding under the emergency provision at Executive Order 12866 section 6(a)(3)(D), based on the need to move expeditiously to mitigate the current economic hardships and conditions arising from the COVID-19 emergency.

This rule is necessary to provide economic relief to small businesses and private nonprofit organizations nationwide adversely impacted by COVID-19. As evidence of unmet need, the Restaurant Revitalization Fund (RRF) received $28.6 billion in appropriations and in 21 days, received 278,304 RRF applications totaling more than $72 billion, which resulted in 177,300 businesses without assistance. Further, with the end of the Paycheck Protection Program (PPP), businesses and nonprofit organizations that are still struggling will turn to the COVID EIDL program for long-term recovery. For these reasons, SBA anticipates that this rule will result in substantial benefits to small businesses, nonprofit organizations, their employees, and the communities they serve.

SBA has drafted this rule, to the extent practicable, in accordance with the standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988, to minimize litigation, eliminate ambiguity, and reduce burden. The rule has no preemptive or retroactive effect.

SBA has determined that this rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various layers of government. Therefore, SBA has determined that this rule has no federalism implications warranting preparation of a federalism assessment.

OIRA has determined that this is a major rule for purposes of subtitle E of the Small Business Regulatory Enforcement and Fairness Act of 1996 (also known as the Congressional Review Act or CRA), 5 U.S.C. 804(2) et seq. Under the CRA, a major rule takes effect 60 days after the rule is published in the Federal Register . 5 U.S.C. 801(a)(3).

Notwithstanding this requirement, the CRA allows agencies to dispense with the requirements of section 801 when the agency for good cause finds that such procedure would be “impracticable, unnecessary, or contrary to the public interest,” and provides that the rule shall take effect at such time as the Federal agency promulgating the rule determines. 5 U.S.C. 808(2). Pursuant to section 808(2), SBA for good cause finds that a 60-day delay to provide public notice would be impracticable, unnecessary, and contrary to the public interest. Likewise, for the same reasons, SBA for good cause finds that there are grounds to waive the 30-day effective date delay under the Administrative Procedure Act. 5 U.S.C. 553(d)(3).

Other SBA COVID-19 relief programs have recently ended or exhausted the funding provided for the program (including PPP and RRF), yet businesses and nonprofit organizations are still in need of support. The COVID EIDL program is more critical now than it was before because of the lack of these other resources and the continuing economic instability. An immediate effective date will give small businesses, nonprofit organizations, qualified agricultural businesses, and independent contractors affected by this interim final rule the maximum amount of time to apply for loans and SBA the maximum amount of time to process applications before the program ends on December 31, 2021. Given the short duration of this program, SBA has determined that it is impractical and not in the public interest to provide a delayed effective date.

SBA has determined that this rule will require revisions to the COVID-19 Economic Injury Disaster Loan Application information collection (OMB Control Number 3245-0406). The application form will be revised to require the disclosure of the NAICS code for the applicant in order to determine the size of the applicant on a per-physical location basis and to add an option to identify the eligible entity as a business that is assigned a NAICS code beginning with 61, 71, 72, 213, 3121, 315, 448, 451, 481, 485, 487, 511, 512, 515, 532, or 812, employs not more than 500 employees per physical location, and together with affiliates has no more than 20 locations. In addition, to simplify and streamline the process for applicants, SBA has consolidated Forms 3501 (COVID-19 Economic Injury Disaster Loan Application), 3502 (Economic Injury Disaster Loan Supporting Information), and 3503 (Self-Certification for Verification of Eligible Entity for Economic Injury Disaster Loan) into one form. This will reduce the burden on applicants as they will only need to enter certain information once. SBA also added questions related to entity type and types of business activity to assist borrowers in making the eligibility certification. Further, SBA revised the questions related to the calculation of economic injury for clarity and to aid in automating the review process. Finally, SBA made additional technical edits to the form for clarity. SBA has obtained emergency approval of the revisions, including waiver of public comment notices. The collection is approved for use until February 28, 2022. SBA will take the necessary steps to solicit comments and revise the information collection, if necessary, before approval expires.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, generally requires that when an agency issues a proposed rule, or a final rule pursuant to section 553(b) of the Administrative Procedure Act or another law, the agency must prepare a regulatory flexibility analysis that meets the requirements of the RFA and publish such analysis in the Federal Register . 5 U.S.C. 603, 604.

Rules that are exempt from notice and comment are also exempt from the RFA requirements, including conducting a regulatory flexibility analysis, such as when, among other exceptions, the agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. SBA Office of Advocacy Guide: How To Comply with the Regulatory Flexibility Act, Ch.1. p.9. Since this rule is exempt from notice and comment, SBA is not required to conduct a regulatory flexibility analysis.

For the reasons stated in the preamble, SBA amends 13 CFR parts 121 and 123 as follows:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Leonardo S.p.a. Model AB139 and AW139 helicopters with an MRB that has less than 1,200 total hours time-in-service (TIS) and has part number (P/N) 3G6210A00131 with any serial number (S/N) listed in Table 1 of Leonardo Helicopters Alert Service Bulletin No. 139-520, dated April 26, 2018 (ASB 139-520), installed. The NPRM published in the Federal Register on June 16, 2021 (86 FR 31992). In the NPRM, the FAA proposed to require, within 50 hours TIS, tap inspecting each MRB tip cap for disbonding using a tap hammer or equivalent. If there is no disbonding, the NPRM proposed to require tap inspecting the MRB tip cap at intervals not to exceed 50 hours TIS. If there is any disbonding that does not exceed the specified limits in ASB 139-520, the NPRM proposed to require tap inspecting the MRB at intervals not to exceed 10 hours TIS. If there is any disbonding that exceeds the specified limits in ASB 139-520, the NPRM proposed to require removing the MRB from service before further flight. The NPRM also specified that the accumulation of 1,200 total hours TIS on the affected part without findings of any disbonded area or with findings of any disbonded area that is within the permitted limits in Annex A of ASB 139-520 would constitute terminating action for the proposed repetitive inspections. Finally, the NPRM proposed to prohibit installing any MRB that is identified in the applicability section of this AD on any helicopter.

The NPRM was prompted by reports of incorrect bonding procedures on certain MRBs, which if not detected and corrected, could result in loss of the MRB tip cap, severe vibrations, and subsequent loss of control of the helicopter.

The FAA issued AD 2018-03-01, Amendment 39-19174 (83 FR 4136, January 30, 2018) (AD 2018-03-01) for Agusta S.p.A. (now Leonardo S.p.a.) Model AB139 and AW139 helicopters with MRB P/N 3G6210A00131 with an S/N 3615, 3634, 3667, or 3729 installed. AD 2018-03-01 requires inspecting the MRB tip cap for disbonding and was prompted by EASA AD 2017-0175-E, dated September 13, 2017 (EASA AD 2017-0175-E), issued by EASA, which is the Technical Agent for the Member States of the European Union. EASA advised of an in-flight loss of an MRB tip cap on an AW139 helicopter where the pilot was able to safely land the helicopter. EASA further advised that an investigation determined the cause as incorrect bonding procedures used during production on MRB P/N 3G6210A00131, S/N 3615, 3634, 3667, and 3729. According to EASA, this condition could result in loss of an MRB tip cap, increased pilot workload, and reduced control of the helicopter. To address this unsafe condition, EASA AD 2017-0175-E requires a one-time inspection of the affected MRB tip caps within 5 flight hours (FH) and replacing the affected MRBs within 10 FH if not replaced as a result of the inspection. EASA AD 2017-0175-E also prohibits installing the affected MRBs on a helicopter. AD 2018-03-01 requires the same corrective actions.

After the FAA issued AD 2018-03-01, EASA issued EASA AD 2018-0130, dated June 18, 2018 (EASA AD 2018-0130), to correct the same unsafe condition for Leonardo S.p.a. Model AB139 and AW139 helicopters with additional serial-numbered MRBs installed. EASA advises that further investigations after EASA AD 2017-0175-E was issued determined that another batch of P/N 3G6210A00131 MRBs may have been subject to the incorrect bonding procedure, but to a less critical extent. EASA AD 2018-0130, which neither revises nor supersedes EASA AD 2017-0175-E, applies to the following serial-numbered MRBs with less than 1,200 FH: 2709, 3558, 3624, 3707, 3790, 3486, 3561, 3625, 3717, 3795, 3488, 3569, 3626, 3720, 3798, 3495, 3570, 3627, 3725, 3803, 3500, 3574, 3628, 3726, 3807, 3501, 3575, 3633, 3734, 3812, 3502, 3582, 3636, 3735, 3822, 3503, 3583, 3638, 3738, 3824, 3508, 3586, 3642, 3739, 3825, 3510, 3590, 3648, 3741, 3827, 3513, 3592, 3649, 3743, 3831, 3520, 3595, 3650, 3744, 3832, 3527, 3597, 3651, 3745, 3838, 3528, 3599, 3657, 3753, 3841, 3529, 3602, 3665, 3754, 3842, 3531, 3603, 3672, 3761, 3847, 3536, 3605, 3682, 3766, 3850, 3539, 3609, 3684, 3770, 3851, 3544, 3612, 3686, 3771, 3852, 3549, 3613, 3690, 3777, 3853, 3551, 3616, 3691, 3783, 3854, 3556, 3620, 3695, 3788, 3855, 3557, 3622, 3696, and 3789.

Accordingly, EASA AD 2018-0130 requires within 50 FH and thereafter at intervals not to exceed 50 FH, tap inspecting the MRB for disbonding. If there is disbonding within permitted limits, EASA AD 2018-0130 requires tap inspecting the disbonded area within 10 FH and thereafter at intervals not to exceed 10 FH. If disbonding that exceeds the permitted limits is found during any inspection, EASA AD 2018-0130 requires replacing the part. EASA AD 2018-0130 also prohibits installing the affected part unless it is a serviceable part and includes a terminating action for the repetitive inspections, which is accumulation of 1,200 FH by an affected part without findings of disbonded area, or findings of disbonded area within the limits specified in Annex A of ASB 139-520.

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

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters.

The FAA reviewed ASB 139-520. This service information specifies procedures for repetitively inspecting the tip cap on a certain batch of MRBs for disbonding using a tap test and replacing the MRB if disbonding is not within permitted limits.

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.

EASA AD 2018-0130 allows replacing an affected part with a serviceable part, which is marked with the letter “R” (repaired tip cap) as the last digit of the S/N, as a terminating action for the repetitive inspections specified in that AD, whereas this AD does not.

The FAA estimates that this AD affects 114 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Tap inspecting an MRB tip cap takes 1 work-hour, for a cost per helicopter of $85 per inspection cycle for a total U.S. fleet cost of $9,690 per inspection cycle. Replacing 1 MRB, if required, takes 4 work-hours, and required parts cost $141,725, for a total cost of $142,065 per MRB.

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

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

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

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

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

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

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

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

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

EASA AD 2017-0037, dated February 22, 2017 (EASA AD 2017-0037), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Airbus Helicopters Deutschland GmbH (formerly Eurocopter Deutschland GmbH), Airbus Helicopters Inc. (formerly American Eurocopter LLC) Model MBB-BK 117 D-2 and MBB-BK117 D-2m helicopters.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Airbus Helicopters Deutschland GmbH (AHD) Model MBB-BK 117 D-2 helicopters, with an affected MGB or affected rotor mast nut as identified in Note 1 of EASA AD 2017-0037. The NPRM published in the Federal Register on June 7, 2021 (86 FR 30218). The NPRM was prompted by the discovery that certain parts that are approved for installation on multiple helicopter models are life limited parts when installed on Model MBB-BK 117 D-2 helicopters and some helicopter delivery documents excluded the life limit information, The NPRM proposed to require accomplishing the actions specified in EASA AD 2017-0037, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD and except as discussed under “Differences Between this AD and EASA AD 2017-0037.” The FAA is issuing this AD to address an unsafe condition on these products. See EASA AD 2017-0037 for additional background information.

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

These helicopters been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products.

EASA AD 2017-0037 requires establishing a life limit for rotor mast nut part number (P/N) D632K1133-201 and helical gear support P/N D632K1113-201, and replacing these parts before exceeding their life limit. EASA AD 2017-0037 also requires replacing each rotor mast nut P/N D632K1133-201 for which the hours TIS are unknown and replacing certain part-numbered rotor mast nuts before accumulating 3,708 hours TIS since first installation on a helicopter. EASA AD 2017-0037 requires re-identifying each rotor mast nut P/N 117-12133-01 to P/N D632K1133-201 by following the specified service information. EASA AD 2017-0037 requires replacing any MGB P/N D632K1001-051 with serial number (S/N) D2-0001 up to D2-0108 inclusive, D2-0123, D2-0126, D2-0127, or D2-0130 up to D2-0136 inclusive with a not affected MGB before the affected MGB accumulates 3,708 hours TIS. EASA AD 2017-0037 also prohibits installing an affected rotor mast nut or an affected MGB that has accumulated more than 3,708 hours TIS since first installation on a helicopter. Additionally, EASA AD 2017-0037 requires revising the Aircraft Maintenance Program (AMP).

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

The FAA reviewed Airbus Helicopters Alert Service Bulletin MBB-BK117 D-2-63A-001, Revision 0, dated December 1, 2016 (ASB 63A-001), which is not incorporated by reference, which specifies procedures for re-identifying the rotor mast nut by using a vibrograph, crossing out the old P/N and marking the new P/N on the outer surface, engraving the letter “A” behind the S/N of each part, and updating the historical record and log card to confirm compliance with ASB 63A-001. ASB 63A-001 also specifies during the next MGB overhaul, making an entry in the log card to confirm re-identification of the helical gear support, and annotating the S/N of the helical gear support.

EASA AD 2017-0037 applies to Model MBB-BK117 D-2 and D2m helicopters, whereas this AD only applies to Model MBB-BK117 D-2 helicopters because Model D-2m is not FAA type-certificated. If the total hours TIS for an affected rotor mast nut cannot be determined, this AD requires removing the rotor mast nut from service before further flight, whereas EASA AD 2017-0037 does not contain this requirement. EASA AD 2017-0037 requires using a vibrograph to re-identify certain rotor mast nuts, whereas this AD requires using a vibro etch instead. EASA AD 2017-0037 requires replacing certain parts, whereas this AD requires removing certain parts from service instead. EASA AD 2017-0037 requires revising the AMP, whereas this AD does not.

The FAA estimates that this AD affects 30 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Determining the total hours TIS on an affected rotor mast nut takes about 1 work-hour for an estimated cost of $85 per helicopter and $2,550 for the U.S. fleet.

Re-identifying a rotor mast nut takes about 1.5 work-hours for an estimated cost of $128 per rotor mast nut.

Replacing a rotor mast nut takes about 6 work-hours and parts cost about $5,351 for an estimated cost of $5,861 per rotor mast nut.

Replacing a MGB, which includes replacing the helical gear support, takes about 42 work-hours and parts cost about $295,000 (overhauled) for an estimated cost of $298,570.

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Helicopters Model AS350B, AS350BA, AS350B1, AS350B2, AS350B3, and AS350D helicopters; and Model AS355E, AS355F, AS355F1, AS355F2, AS355N, and AS355NP helicopters. The NPRM published in the Federal Register on June 3, 2021 (86 FR 29705). In the NPRM, the FAA proposed to require modification of the lanyard attachment location for certain litter kit installations. The NPRM was prompted by Canadian AD CF-2017-37, dated December 19, 2017 (Canadian AD CF-2017-37), issued by Transport Canada, which is the aviation authority for Canada, to correct an unsafe condition for Airbus Helicopters Model AS 350 B, AS 350 BA, AS 350 B1, AS 350 B2, AS 350 B3, AS 350 D, AS 355 E, AS 355 F, AS 355 F1, AS 355 F2, AS 355 N, and AS 355 NP helicopters. Transport Canada advises that there have been reports that the lanyards, which hold the quick release pins to the forward bracket assembly of certain litter kits, can loop around the directional control pedal stubs, limiting the movement of the pedals, which affects the control of the flight. If this condition exists and is not corrected during installation, this limitation may not be apparent until the pedal input is required in flight. This condition, if not addressed, could result in difficulty controlling the helicopter.

Accordingly, Canadian AD CF-2017-37 requires modification of the lanyard attachment location for certain litter kit installations. Canadian AD CF-2017-37 also specifies that installation of an affected part number litter kit is prohibited unless the installation conforms to the requirements of Airbus Helicopters Service Bulletin SB-AHCA-128, Revision 0, dated March 24, 2017.

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

These helicopters have been approved by the aviation authority of Canada and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with Canada, Transport Canada, its technical representative, has notified the FAA of the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters. Except for minor editorial changes, this AD is adopted as proposed in the NPRM.

The FAA reviewed Airbus Helicopters Service Bulletin SB-AHCA-128, Revision 0, dated March 24, 2017. This service information specifies procedures for modifying the bead chain tether attachment locations for litter kits with certain part numbers. The modification includes relocating the bead chain tethers by removing the screws and washers for the pip pins on the forward bracket assembly; filling the empty holes with rivets; determining the new locations of and drilling new holes; and securing the bead chain tethers on the top side of the forward bracket assembly in the new hole locations. 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.

This AD requires a pre-flight check prior to each flight to determine if there is interference between the lanyards that hold the quick release pins to the forward bracket assembly of the litter kit and the flight controls. This pre-flight check requirement will be terminated upon completion of the modification of the litter kit installation. Canadian AD CF-2017-37 does not include a requirement for the pre-flight check prior to each flight to determine if there is interference between the lanyards and the flight controls.

The FAA estimates that this AD affects 967 helicopters of U.S. Registry. The FAA estimates the following costs to comply with this AD.

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

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

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

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

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

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

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

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

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0134R2, dated April 16, 2020 (EASA AD 2017-0134R2) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all Airbus Helicopters Model AS332L2 and EC225LP helicopters.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2016-12-51, Amendment 39-18578 (81 FR 43479, July 5, 2016) (AD 2016-12-51). AD 2016-12-51 applied to all Airbus Helicopters Model AS332L2 and EC225LP helicopters. The NPRM published in the Federal Register on June 1, 2021 (86 FR 29212). The NPRM was prompted by an accident involving an Airbus Helicopters Model EC225LP helicopter in which the main rotor hub detached from the MGB. The Airbus Helicopters Model AS332L2 helicopter has a similar design to the affected Model EC225LP helicopter, therefore, this model may be subject to the unsafe condition revealed on the Model EC225LP helicopter. The NPRM proposed to require replacing certain second stage planet gear assemblies, removing certain epicyclic modules, installing an FFMP, revising the existing RFM for your helicopter, repetitively inspecting the MGB particle detectors, repetitively inspecting the MGB oil filter and oil cooler, and corrective action if necessary, as specified in EASA AD 2017-0134R2. The NPRM also proposed to provide terminating action for certain repetitive inspections.

The FAA is issuing this AD to address failure of the main rotor system, which would result in loss of control of the helicopter. See the MCAI for additional background information.

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

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

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

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

EASA AD 2017-0134R2 references procedures for replacing certain second stage planet gear assemblies with serviceable parts; removing certain epicyclic modules from service; modifying the helicopter by installing an FFMP; revising the RFM to prohibit MGB particle burning in-flight; repetitively inspecting the FFMP and MGB particle detectors for metal particles, analyzing any metal particles that are found, and corrective action; and repetitively inspecting the MGB oil filter and oil cooler for particles and corrective action. The corrective actions include replacing an affected MGB with a serviceable MGB. EASA AD 2017-0134R2 also provides terminating action for certain repetitive inspections.

Airbus Helicopters has issued Emergency Alert Service Bulletin 05A049, Revision 6, dated July 25, 2017, for Model EC225 helicopters; and Emergency Alert Service Bulletin 05.01.07, Revision 6, dated July 27, 2017, for Model AS332 helicopters. The service information specifies procedures for, among other things, replacing the MGB.

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

Although the service information referenced in EASA AD 2017-0134R2 specifies to return affected planetary gear assemblies to the manufacturer for module overhaul, this AD does not include that requirement.

Although the service information referenced in EASA AD 2017-0134R2 specifies that retrofit of the planet gear of the MGB can only be done by Airbus Helicopters or Airbus Helicopters approved repair centers, this AD does not include that requirement.

EASA AD 2017-0134R2 requires operators to “inform all flight crews” of revisions to the RFM, and thereafter to “operate the helicopter accordingly.” However, this AD does not specifically require those actions. FAA regulations mandate compliance with only the operating limitations section of the flight manual. The flight manual changes required by this AD apply to the emergency procedures section of the existing RFM for your helicopter. Furthermore, compliance with such requirements in an AD is impracticable to demonstrate or track on an ongoing basis; therefore, a requirement to operate the aircraft in such a manner is unenforceable. Nonetheless, the FAA recommends that flight crews of the helicopters listed in the applicability operate in accordance with the revised emergency procedures mandated by this AD.

The FAA considers this AD interim action. If final action is later identified, the FAA might consider further rulemaking then.

The FAA estimates that this AD affects 28 helicopters of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates that it will take about 1 work-hour per product to comply with the reporting requirement in this AD. The average labor rate is $85 per hour. Based on these figures, the FAA estimates the cost of reporting the inspection results on U.S. operators to be $2,380, or $85 per product.

The FAA estimates the following costs to do any necessary on-condition actions that will be required based on the results of any required actions. The FAA has no way of determining the number of helicopters that might need these on-condition actions:

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

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Pkwy., Fort Worth, TX 76177-1524.

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2020-13-07, Amendment 39-21152 (85 FR 38312, June 26, 2020), (AD 2020-13-07). AD 2020-13-07 applied to all RRD Trent 1000-D2, Trent 1000-J2, and Trent 1000-K2 model turbofan engines with fuel pump, part number G5030FPU01, installed. The NPRM published in the Federal Register on March 30, 2021 (86 FR 16548). The NPRM was prompted by the manufacturer's investigation into an unexpected reduction in fuel pump performance in certain high life fuel pumps and life-related wear-out of the internal components and subsequent determination that an additional part-numbered fuel pump is subject to this same unsafe condition. In the NPRM, the FAA proposed to retain all the requirements of AD 2020-13-07. In the NPRM, the FAA also proposed to add an additional part-numbered fuel pump and additional Trent 1000 model turbofan engines on which this fuel pump is installed to the applicability. In the NPRM, the FAA also proposed to require new and reduced life limits for certain part-numbered fuel pumps, depending on the engine model the fuel pump is installed on. The FAA is issuing this AD to address the unsafe condition on these products.

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2021-0006, dated January 7, 2021 (referred to after this as “the MCAI”), to address the unsafe condition on these products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket on https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0198.

The FAA received comments from two commenters. The commenters were The Boeing Company (Boeing) and Rolls-Royce. The following presents the comments received on the NPRM and the FAA's response to each comment.

Boeing and Rolls-Royce requested that the FAA update the specified service information by referencing Revision 3 of Rolls-Royce (RR) Alert Non-Modification Service Bulletin (NMSB) TRENT 1000-73-AK581.

The FAA agrees and has updated this AD to reference RR Alert NMSB TRENT 1000-73-AK581, Revision 3, dated April 7, 2021. This change to this AD imposes no additional burden on operators.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed RR Alert NMSB TRENT 1000-73-AK581, Revision 3, dated April 7, 2021 (RR Alert NMSB). The RR Alert NMSB introduces a reduced life limit for affected fuel pumps installed on certain RRD Trent 1000 model turbofan engines. The RR Alert NMSB also includes additional RRD Trent 1000 turbofan engine models that require implementation of the reduced life limits for affected fuel pumps. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA considers this AD interim action. If final action is later identified, the FAA might consider further rulemaking.

The FAA estimates that this AD affects 28 engines installed on airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Bell Textron Canada Limited Model 206, 206A, 206A-1 (OH-58A), 206B, 206B-1, 206L, 206L-1, 206L-3, 206L-4, 222, 222B, 222U, 230, 407, 427, 429, and 430 helicopters with a comfort clip installed; or that have been modified per Supplemental Type Certificate (STC) SH2073SO (installation of shoulder harness restraint system) or STC SH2751SO (installation of a passenger shoulder harness restraint system).

The NPRM published in the Federal Register on July 6, 2021 (86 FR 35410). In the NPRM, the FAA proposed to require, within 25 hours time-in-service (TIS) after the effective date of the proposed AD, removing from service each comfort clip and inspecting each shoulder harness seat belt for a rip and abrasion. If there is a rip or abrasion, the NPRM proposed to require removing the shoulder harness seat belt from service before further flight. The NPRM also proposed to prohibit installing a comfort clip on any helicopter as of the effective date of the proposed AD.

The NPRM was prompted by Transport Canada AD CF-2018-16, dated June 14, 2018 (Transport Canada AD CF-2018-16), issued by Transport Canada, which is the aviation authority for Canada, to correct an unsafe condition for all serial-numbered Bell Helicopter Textron Canada Limited (now Bell Textron Canada Limited) Model 206, 206A, 206A-1, 206B, 206B-1, 206L, 206L-1, 206L-3, 206L-4, 222, 222B, 222U, 230, 407, 427, 429 and 430 helicopters. Transport Canada advises that Bell Helicopter Textron Canada Limited delivered comfort clips with some helicopters, and that these comfort clips, which were also sold as spare parts or accessories, were intended to improve occupant comfort by reducing shoulder harness tension. However, Transport Canada advises the comfort clip may interfere with the shoulder harness inertia reel, preventing the harness from locking and resulting in injury to the occupant during an emergency landing. To prevent this unsafe condition, Transport Canada AD CF-2018-16 requires, within 25 hours air time or 10 days, whichever occurs first, determining if the comfort clips are installed. If the comfort clips are installed, Transport Canada AD CF-2018-16 requires removing them from service within 100 hours air time or 30 days, whichever occurs first, and inspecting each shoulder harness seat belt for damage and replacing any shoulder harness seat belt that has damage that exceeds allowable limits before further flight. Transport Canada AD CF-2018-16 also prohibits the installation of any comfort clip on any helicopter.

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

These helicopters have been approved by the aviation authority of Canada and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with Canada, Transport Canada, its technical representative, has notified the FAA of the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters.

The FAA reviewed the following Bell Helicopter Alert Service Bulletins (ASBs), each dated January 11, 2016:

• ASB 222-15-112 for Model 222, 222B, and 222U helicopters with serial numbers (S/N) 47006 through 47089, 47131 through 47156, and 47501 through 47574 (ASB 222-15-112);

• ASB 230-15-46 for Model 230 helicopters with S/N 23001 through 23038;

• ASB 407-15-111 for Model 407 helicopters with S/N 53000 through 53900, 53911 through 54166, and 54300 through 54599;

• ASB 427-15-39 for Model 427 helicopters with S/N 56001 through 56084, 58001 and 58002 (ASB 427-15-39);

• ASB 429-15-27 for Model 429 helicopters with S/N 57001 through 57259 (ASB 429-15-27); and

• ASB 430-15-56 for Model 430 helicopters with S/N 49001 through 49129.

The FAA also reviewed the following Bell Helicopter ASBs, both Revision A and both dated February 5, 2016:

• ASB 206-15-133 for Model 206A/B and TH-67 helicopters with S/N 4 through 4690 and 5101 through 5313 (ASB 206-15-133); and

• ASB 206L-15-175 for Model 206L, 206L-1, 206L-3, and 206L-4 helicopters with S/N 45001 through 45153, 46601 through 46617, 45154 through 45790, 51001 through 51612, and 52001 through 52455 (ASB 206L-15-175).

All of the ASBs specify removing all variants of comforts clips from all seat belt assemblies. ASB 222-15-112, ASB 427-15-39, and ASB 429-15-27 also specify that although the helicopter models to which these ASBs apply were not affected by the original design at the time of certification and delivery of the helicopter, the affected parts may have been installed post-delivery to end owners/operators of those helicopters.

ASB 206-15-133 and ASB 206L-15-175 also specify that helicopters that have been modified per STC SH2073SO (installation of shoulder harness restraint system) are affected and therefore included in the ASB applicability.

ASB 206L-15-175 also specifies that helicopters that have been modified per STC SH2751SO (installation of a passenger shoulder harness restraint system) are affected and therefore included in the ASB applicability.

This AD requires removing the comfort clip and inspecting the shoulder harness seat belt within 25 hours TIS; Transport Canada AD CF-2018-16 requires inspecting for the presence of a comfort clip at 25 hours air time, or 10 days, whichever occurs first, and then requires removing the comfort clip, if installed. Transport Canada AD CF-2018-16 requires inspecting the shoulder harness seat belt for any damage that exceeds allowable limits within 100 hours air time or 30 days, whichever occurs first, whereas this AD requires the inspection within 25 hours TIS and removing any shoulder harness seat belt from service before further flight if there is any rip or abrasion.

Transport Canada AD CF-2018-16 applies to all serial-numbered Model 206, 206A, 206A-1, 206B, 206B-1, 206L, 206L-1, 206L-3, 206L-4, 222, 222B, 222U, 230, 407, 427, 429 and 430 helicopters, whereas this AD applies to Model 206, 206A, 206A-1, 206B, 206B-1, 206L, 206L-1, 206L-3, 206L-4, 222, 222B, 222U, 230, 407, 427, 429, and 430 helicopters with a comfort clip installed or helicopters that have been modified per STC SH2073SO (installation of shoulder harness restraint system) or STC SH2751SO (installation of a passenger shoulder harness restraint system).

The FAA estimates that this AD affects 2,347 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Removing each comfort clip will take about 0.5 work-hour for an estimated cost of $43 per clip and up to $807,368 for the U.S. fleet.

Replacing a shoulder harness seat belt, if required, will take about 1 work-hour and parts will cost about $250 per shoulder harness seat belt, for an estimated cost of $335 per replacement.

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

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

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

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

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

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

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

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

EASA, which is the Technical Agent for the Member States of the European Union, has issued a series of ADs, the most recent being EASA AD 2018-0006, dated January 10, 2018 (EASA AD 2018-0006), to correct an unsafe condition for Leonardo S.p.A. Helicopters (formerly Finmeccanica S.p.A., AgustaWestland S.p.A.) Model AW189 helicopters with certain part-numbered and serial-numbered Aero Sekur EFS float assemblies installed, except those float assemblies marked with SB-189-25-004. EASA initially issued EASA AD 2017-0256, dated December 22, 2017 (EASA AD 2017-0256), to address the unsafe condition. EASA issued EASA AD 2018-0006 to supersede EASA AD 2017-0256 to revise the compliance time based on the EFS float assembly condition.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Leonardo S.p.a. Model AW189 helicopters. The NPRM published in the Federal Register on May 28, 2021 (86 FR 28714). The NPRM was prompted by corrosion on the inlet check valve banjo fitting of EFS float assemblies. The NPRM proposed to require visually inspecting each banjo fitting installed on an affected EFS float assembly, and depending on the results, removing the banjo fitting from service. The NPRM also proposed to require applying corrosion inhibiting compound to each banjo fitting installed on an affected EFS float assembly and prohibit installing an affected EFS float assembly unless the banjo fitting inspection, banjo fitting replacement, and corrosion inhibiting compound application requirements have been accomplished, as specified in an EASA AD.

The FAA is issuing this AD to prevent reduced inflation of an EFS float. The unsafe condition, if not addressed, could affect the helicopter's buoyancy during an emergency landing on water. See EASA AD 2018-0006 for additional background information.

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

The FAA reviewed the relevant data and determined that air safety and the public interest require adopting this final rule as proposed.

EASA AD 2018-0006 requires visually inspecting the banjo fittings installed on an affected EFS float assembly. If there is corrosion on a banjo fitting, EASA AD 2018-0006 requires replacing the banjo fitting. EASA AD 2018-0006 also requires applying corrosion inhibiting compound to each banjo fitting installed on an affected EFS float assembly. EASA AD 2018-0006 prohibits installing an affected EFS float assembly unless the banjo fitting inspection, banjo fitting replacement, and corrosion inhibiting compound application requirements have been accomplished. EASA AD 2018-0006 also allows credit for actions accomplished previously with a prior revision of the Leonardo Helicopters service information.

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

The FAA reviewed Leonardo Helicopters Alert Service Bulletin No. 189-174, original issue, dated December 22, 2017 (ASB 189-174 original issue), and Revision A, dated January 5, 2018 (ASB 189-174 Rev A). The FAA also reviewed Aero Sekur Service Bulletin SB-189-25-004, original issue, dated November 22, 2017 (SB-189-25-004), which is attached as Annex A to ASB 189-174 original issue and ASB 189-174 Rev A.

ASB 189-174 Rev A and ASB 189-174 original issue specify the same procedures, except the compliance time specified by ASB 189-174 Rev A has been revised by adding affected EFS float assemblies that have been inspected using procedures in the maintenance manual within the previous 12 months. ASB 189-174 original issue and ASB 189-174 Rev A specify accomplishing the Visual Inspection and Corrosion Prevention, and Record Instruction procedures specified in SB-189-25-004. ASB 189-174 original issue and ASB 189-174 Rev A also specify emailing photographical evidence of each corroded banjo fitting to Leonardo Helicopters PSE Division and returning replaced banjo fittings to Leonardo Helicopters Customer Support Division.

SB-189-25-004 specifies procedures for cleaning and visually inspecting each banjo fitting for evidence of corrosion. If there is corrosion, SB-189-25-004 specifies procedures for discarding the banjo fitting and its O-rings, and installing a new banjo fitting. SB-189-25-004 also specifies procedures for applying corrosion inhibiting compound (JC5A or Mastinox 6856) on all banjo fittings. When SB-189-25-004 is accomplished, SB-189-25-004 specifies procedures for marking the identification label of the EFS float assembly.

EASA AD 2018-0006 requires returning and discarding certain parts, whereas this AD requires removing those parts from service instead.

The FAA estimates that this AD affects 4 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Inspecting the banjo fittings takes about 8.5 work-hours for an estimated cost of $723 per helicopter and $2,892 for the U.S. fleet. Applying corrosion inhibiting compound takes about 1.5 work-hours for an estimated cost of $128 per helicopter and $512 for the U.S. fleet. If required, replacing a banjo fitting takes a minimal additional amount of time after inspecting it and parts cost about $550 for an estimated cost of $550 per helicopter.

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Bell Textron Canada Limited Model 505 helicopters, with serial numbers 65011 through 65023 inclusive, 65025 through 65028 inclusive, 65030 through 65032 inclusive, 65034, and 65036 with relay panel assembly part number (P/N) SLS-075-002-107 installed. The NPRM published in the Federal Register on May 25, 2021 (86 FR 28038). In the NPRM, the FAA proposed to require replacing relay panel assembly part number P/N SLS-075-002-107 with relay panel assembly P/N SLS-075-002-109. The NPRM also proposed to prohibit installing relay panel assembly P/N SLS-075-002-107 on any helicopter. The NPRM was prompted by Canadian AD CF-2017-36, dated December 15, 2017 (Canadian AD CF-2017-36), issued by Transport Canada, which is the aviation authority for Canada, to correct an unsafe condition for Bell Helicopter Textron Canada Limited (BHTCL) (now Bell Textron Canada Limited) Model 505 helicopters serial numbers 65011 through 65023, 65025 through 65028, 65030 through 65032, 65034, and 65036. Transport Canada advises of three occurrences of metallic debris in the engine oil lubrication system of the Model 505 helicopter causing the Garmin Engine Airframe (GEA) 12 VDC reference voltage to be shorted to ground. This short to ground results in loss of display of important flight information including the main rotor rotations per minute (Nr), fuel quantity, and transmission oil pressure and temperature, and the generator voltage and ammeter parameters are marked invalid with a red “X” on the primary flight display (PFD) and the multi-function display (MFD). This condition, if not addressed, could result in loss of caution, advisory, and system performance indications for multiple helicopter systems, particularly when the initiating event may be the activation of the engine chip detector.

Accordingly, Canadian AD CF-2017-36 requires replacing relay panel assembly P/N SLS-075-002-107 with relay panel assembly P/N SLS-075-002-109.

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

These helicopters have been approved by the aviation authority of Canada and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with Canada, Transport Canada, its technical representative, has notified the FAA of the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters. Except for minor editorial changes and updating the email and website addresses for Bell Textron Canada Limited throughout this document, this AD is adopted as proposed in the NPRM.

The FAA reviewed Bell Helicopter Alert Service Bulletin 505-17-04, dated December 6, 2017 (ASB 505-17-04). ASB 505-17-04 specifies procedures for replacing relay panel assembly P/N SLS-075-002-107 with relay panel assembly P/N SLS-075-002-109. ASB 505-17-04 also specifies procedures for accomplishing a functional test of the two engine electrical magnetic plugs and provides a notice to ensure 505-FM-1 (TR-2) is inserted into the flight manual.

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.

Canadian AD CF-2017-36 requires replacing the relay panel assembly within 25 hours air time or 30 days, whichever occurs first, whereas this AD requires that replacement within 25 hours time-in-service instead. Canadian AD CF-2017-36 applies to certain serial-numbered Model 505 helicopters, whereas this AD applies to certain serial-numbered Model 505 helicopters with relay panel assembly P/N SLS-075-002-107 installed instead.

The FAA estimates that this AD affects 3 helicopters of U.S. Registry. The FAA estimates that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour.

Replacing each relay panel assembly takes about 3 work-hours and parts cost $7,079 for an estimated cost of $7,334 per helicopter and $22,002 for the U.S. fleet.

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

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

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

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

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

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

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

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

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0192, dated September 4, 2020 (EASA AD 2020-0192) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for Leonardo S.p.a. (formerly AgustaWestland S.p.A., Agusta S.p.A., and Costruzioni Aeronautiche Giovanni Agusta) Model AB412 and AB412 EP helicopters, all serial numbers.

This AD was prompted by a report of the failure of both inverters in-flight, leading to an autopilot disconnection. Subsequent inspection identified chafing of a wire in the alternating current (AC) power system cable assembly, due to a protective grommet incorrectly installed in the emergency bus interlock compartment. Insufficient clearance between a protective grommet and the cable assemblies that pass through it could result in chafing of the cable assemblies. The FAA is issuing this AD to address incorrect installation of a protective grommet in the emergency bus interlock compartment and chafed wiring in the AC power system cable assembly. Chafed wiring in the AC power system cable assembly, if not addressed, could lead to a short in the AC power system, resulting in autopilot failure, possibly the loss of other avionics systems, increased pilot workload, and reduced control of the helicopter.

EASA AD 2020-0192 specifies procedures for a one-time inspection of the clearance between a protective grommet installed in the emergency bus interlock compartment and the cable assemblies passing through it, and corrective actions. The corrective actions include replacing the existing grommet with a new grommet, inspecting the cable assemblies for damage (including chafing) and replacing affected cable assemblies, and reworking the bulkhead in the emergency bus interlock compartment. The rework of the bulkhead includes removing paint and primer, reworking the lightening hole, deburring the hole, applying chemical film protection, and priming all bare metal surfaces.

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

These products have been approved by the aviation authority of another country, and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI referenced above. The FAA is issuing this AD after evaluating all pertinent information and determining that the unsafe condition exists and is likely to exist or develop on other products of these same type designs.

This AD requires accomplishing the actions specified in EASA AD 2020-0192, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, EASA AD 2020-0192 is incorporated by reference in this FAA final rule. This AD therefore, requires compliance with EASA AD 2020-0192 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in the EASA AD. Service information specified in EASA AD 2020-0192 that is required for compliance with EASA AD 2020-0192 is available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0607.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

There are currently no domestic operators of these products. Therefore, the FAA finds that notice and opportunity for prior public comment are unnecessary pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the foregoing reason, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

The FAA invites you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0607; Project Identifier MCAI-2020-01249-R” at the beginning of your comments. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this AD because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this AD.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Jacob Fitch, Aerospace Engineer, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-4130; email jacob.fitch@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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

There are no costs of compliance with this AD because there are no helicopters with this type certificate on the U.S. Registry.

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

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

The FAA 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 regulation:

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

(2) Will not affect intrastate aviation in Alaska.

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

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0282, dated December 17, 2020 (EASA AD 2020-0282) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for Airbus Helicopters Deutschland GmbH Model EC135 P1, EC135 P2, EC135 P2+, EC135 P3, EC135 T1, EC135 T2, EC135 T2+, EC135 T3, EC635 P2+, EC635 P3, EC635 T1, EC635 T2+, and EC635 T3 helicopters, all variants, all serial numbers. Model EC635 P2+, EC635 P3, EC635 T1, EC635 T2+, and EC635 T3 helicopters are not certificated by the FAA and are not included on the U.S. type certificate data sheet, except where the U.S. type certificate data sheet explains that the Model EC635T2+ helicopter having serial number 0858 was converted from Model EC635T2+ to Model EC135T2+. This AD, therefore, does not include Model EC635 P2+, EC635 P3, EC635 T1, EC635 T2+, and EC635 T3 helicopters in the applicability.

Furthermore, although EASA AD 2020-0282 applies to all Model EC135 P1, EC135 P2, EC135 P2+, EC135 P3, EC135 T1, EC135 T2, EC135 T2+, and EC135 T3 helicopters, this AD applies to helicopters with an affected part installed instead.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Helicopters Deutschland GmbH Model EC135P1, EC135P2, EC135P2+, EC135P3, EC135T1, EC135T2, EC135T2+, and EC135T3 helicopters. The NPRM published in the Federal Register on June 1, 2021 (86 FR 29216). The NPRM was prompted by a report that during an investigation related to an accident on an Airbus Helicopters Model EC130B4 helicopter, geometrical non-conformities were observed in the TRB root section. EASA issued AD 2020-0187, dated August 21, 2020, to address this issue on Model EC130B4 and EC130T2 helicopters and the FAA issued corresponding AD 2021-10-25, Amendment 39-21558 (86 FR 29176, June 1, 2021). The Airbus Helicopters Deutschland GmbH Model EC135P1, EC135P2, EC135P2+, EC135P3, EC135T1, EC135T2, EC135T2+, and EC135T3 helicopters have a similar design and production requirements to the affected Model EC130B4 helicopter, and an inspection of the affected parts detected geometrical non-conformities in some instances. The NPRM proposed to require a one-time inspection (dimensional check) of the TRB for conformity and, depending on the findings, replacement of certain affected parts, as specified in EASA AD 2020-0282. The NPRM also proposed to prohibit rework, repair, or modification of affected parts in the affected area of the TRB assembly root.

The FAA is issuing this AD to address geometrical non-conformities in the TRB root section, which could lead to crack initiation and consequent blade failure, resulting in loss of control of the helicopter. See the MCAI for additional background information.

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

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

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

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

EASA AD 2020-0282 requires a one-time inspection (dimensional check) to verify TRB conformity, and, depending on findings, replacement of each affected part classified as Category B (non-compliant TRB assembly). EASA AD 2020-0282 also prohibits rework, repair, or modification of affected parts in the critical section (affected area of the TRB assembly root).

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

The FAA estimates that this AD affects 341 helicopters of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. The FAA has no way of determining the number of helicopters that might need these on-condition 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.

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

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

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

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

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

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

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

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

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR 14026; March 12, 2021) for Docket No. FAA-2021-0161 to amend the Class E airspace extending upward from 700 feet above the surface at Yoakum Municipal Airport, Yoakum, TX. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 amends the Class E airspace extending upward from 700 feet above the surface within a 6.3-mile (decreased from 7.2-mile) radius of Yoakum Municipal Airport, Yoakum, TX; and updating geographic coordinates of the airport to coincide with the FAA's aeronautical database.

This action is the result of an airspace review due to the decommissioning of the Yoakum NDB which provided navigation information for the instrument procedures at this airport.

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

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

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

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

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

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR 33581, June 25, 2021) for Docket No. FAA-2021-0169 to amend Class D and Class E airspace in the south Florida area, by updating the names and geographic coordinates of several airports in the area, as well as the geographical coordinates of the Fort Lauderdale VOR/DME, and the QEEZY LOM. This action proposed making an editorial change replacing the term Airport/Facility Directory with the term Chart Supplement in the legal descriptions of associated Class D and E airspace.

Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in Paragraphs 5000, 6002, 6003, and 6005, respectively, of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic routes, and reporting points.

The FAA amends 14 CFR part 71 by amending Class D and Class E surface airspace, and Class E airspace extending upward from 700 feet above the surface by updating the geographical coordinates of several airports and associated navigation aids in the south Florida area, and removing Class E airspace designated as an extension to a Class C surface area. The FAA is updating the airport names of Miami Executive Airport (formerly Kendall-Tamiami Executive Airport), and Miami Opa-Locka Executive Airport (formerly Opa Locka Airport), and Homestead ARB (formerly Dade County-Homestead Regional Airport) in the Class D airspace, Class E surface airspace, and Class E airspace extending upward from 700 feet above the surface. The FAA is amending the Miami, Opa Locka Executive Airport, FL Class D header, (formerly Miami, Opa Locka Airport, FL as well. In addition, the FAA is replacing the outdated term Airport/Facility Directory with the term Chart Supplement in the associated Class D and E airspace legal descriptions for these airports. Also, Boca Raton Class E airspace extending upward from 700 feet above the surface excludes the reference to Pompano Beach Class D airspace, as this is unnecessary verbiage. These changes are necessary for continued safety and management of IFR operations in the area.

Subsequent to publication of the NPRM the FAA found that the Fort Lauderdale E3 extensions are no longer required. This action removes the E3 Descriptor for Fort Lauderdale.

The Class D descriptor for Fort Lauderdale Executive Airport incorrectly listed the airport runways as 8/26. This action corrects the runways to 9/27.

In addition, the Class D descriptor for Boca Raton Airport was omitted from the NPRM. This action adds the Class D descriptor for Boca Raton Airport, adding “excluding that airspace within the Pompano Beach, Class D airspace area, when active.”

Finally, the NPRM listed the geographic coordinates incorrectly for North Perry Airport, Fort Lauderdale Executive Airport and the Boca Raton Airport, as well as the line dividing Fort Lauderdale Executive Airport and Pompano Beach Airport. This action corrects these errors.

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

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

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

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

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

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR 20100; April 16, 2021) for Docket No. FAA-2021-0159 to amend the Class E airspace extending upward from 700 feet above the surface at Scott City Municipal Airport, Scott City, KS. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 amends the Class E airspace extending upward from 700 feet above the surface within a 6.5-mile (decreased from 6.9-mile) radius of Scott City Municipal Airport, Scott City, KS, and updates geographical coordinates of the airport to coincide with the FAA's aeronautical database.

This action is the result of an airspace review due to the decommissioning of the Scott City NDB which provided navigation information for the instrument procedures at this airport.

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

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

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

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

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

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR 24792; May 10, 2021) for Docket No. FAA-2021-0277 to revoke Class E airspace extending upward from 700 feet above the surface at Standish Industrial Airport, Standish, MI. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 revokes the Class E airspace extending upward from 700 feet above the surface at Standish Industrial Airport, Standish, MI.

This action is the result of an airspace review due to the closing of the Standish Industrial Airport, Standish, MI, and cancellation of the instrument procedures at this airport.

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

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

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

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

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

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR 14556; March 17, 2021) for Docket No. FAA-2021-0160 to amend the Class E airspace extending upward from 700 feet above the surface at Sac City Municipal Airport, Sac City, IA. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 amends the Class E airspace extending upward from 700 feet above the surface at Sac City Municipal Airport, Sac City, IA,; and removes the Sac City NDB and associated extension from the airspace legal description.

This action is the result of airspace reviews caused by the decommissioning of the Sac City NDB, which provided navigation information for the instrument procedures these airports.

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

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

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

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

OIED is issuing this rule under the authority of the Native American Business Incubators Program Act, Public Law 116-174.

On October 20, 2020, Congress enacted the Native American Business Incubators Program Act, Public Law 116-174, codified at 25 U.S.C. 5801 et seq. In the Act, Congress established the Native American Business Incubators Program and required the Secretary of the Interior to promulgate regulations to implement the program. See 25 U.S.C. 5804.

Congress found that the Native American Business Incubators Program is necessary because, in addition to the challenges all entrepreneurs face when transforming ideas into profitable business enterprises, entrepreneurs face an additional set of challenges that requires special knowledge when they want to provide products and services in Tribal reservation communities. Congress further found that the business incubator model is suited to accelerating entrepreneurship (and ultimately, economic development) in Tribal reservation communities. Business incubators help start-up and early-stage businesses by offering the business owners a range of services, such as: Mentorships, networking, technical assistance, and access to investors. Through these services, incubators promote collaboration to address challenges and provide individually tailored services to overcome the obstacles that are unique to each participating business.

This rule establishes the IBIP in accordance with the Native American Business Incubators Program Act. This regulation names the program IBIP, rather than the Native American Business Incubators Program, to avoid use of the acronym “NABIP,” which would likely cause confusion due to its similarity to at least one other grant program acronym related to Native American businesses.

Through the IBIP, OIED will provide competitive grants to eligible applicants to establish and operate business incubators that serve entrepreneurs (start-up and early-stage businesses) who will provide products or services to Tribal reservation communities. A business incubator is an organization that assists entrepreneurs in becoming viable businesses by providing advice and services to entrepreneurs to navigate obstacles in transforming their innovative ideas into operational businesses. Examples of services that a business incubator may provide are workspace and facilities, advice on how to access capital, business education, counseling, and networking and mentorship opportunities. Indian Affairs does not currently have any regulations in place that provide for a grant program for Indian business incubators. The rule being finalized today will provide the framework for operation of the grant program so that there is certainty as to who is eligible for a grant, how eligible applicants can apply for a grant, how OIED will evaluate, award, and administer the grants, and what terms and conditions will apply to the grants. This rule will enable OIED to provide grants that will stimulate economic development in reservation communities.

The rule consists of six subparts, each of which is described below.

• Subpart A—General Provisions and Eligibility: Defines terms defined in the statute consistent with the statutory definitions, replacing citations with restatements of the provisions cited where appropriate, and adds a new term for “IBIP” in lieu of “Native American Business Incubator Program (NABIP)” to avoid confusion because the acronym “NABIP” is similar to other grant programs. This subpart also describes who is eligible to receive an IBIP grant, to include the following entities that meet certain additional requirements set out in § 1187.3:

○ Tribes;

○ Tribal colleges and universities;

○ Institutions of higher education; and

○ Tribal or private nonprofit organizations that provide business and financial technical assistance.

• Subpart B—Applying for a Grant: Describes how an eligible applicant applies for a grant, adding the specificity that applications must be submitted through www.grants.gov. This subpart also includes the statutory requirements for what must be included in an application and written site proposal, and how to submit a joint application. The regulations add that joint applications must identify which of the entities submitting the joint application will be the lead contact for the purposes of grant management.

• Subpart C—Evaluation of Grant Applications: Describes the criteria OIED will use to evaluate each IBIP grant application, adding the specific time period of three months to the statutory requirement that the grantee must commence services within a minimum period of time to be determined by the Secretary. This subpart also adds a new criterion to the statutory criteria for evaluation: The extent to which a grant award will enable an entity that is already providing business incubation services to appreciably enhance those services. OIED added this criterion in order to ensure that the grant is funding new incubation services, such that there is a return for the investment made in the incubator, rather than merely paying existing incubators for services they would have otherwise provided.

• Subpart D—Grant Awards: Describes how OIED will disburse grant funds to awardees according to the statute. This subpart also includes the statutory prohibition on awarding an IBIP grant that duplicates other Federal funding, but adds a clarification that duplicative funding means any funding from other Federal grants that would overlap with the IBIP grant for the same activities described in the applicant's IBIP proposal.

• Subpart E—Grant Term and Conditions: Establishes an initial grant term of three years, with the opportunity to renew for one additional three-year term if certain conditions are met, in accordance with the statute. This subpart also lists the purposes for which awardees may use the grant funds, requires awardees to provide non-Federal contributions in an amount at least 25 percent of the grant unless the conditions for waiver of that requirement are met, lists the minimum requirements awardees must meet in providing incubation services, and requires the awardee to submit a report at the end of the grant year that provides, among other things, a detailed breakdown of the Native businesses and Native entrepreneurs the incubator helped establish or serve. These items are all statutory but are included in the regulation to assist readers in finding all relevant IBIP grant information in one location.

• Subpart F—OIED Grant Administration: Provides that OIED will conduct an annual evaluation of each IBIP awardee's success, facilitate relationships between awardees and educational institutions serving Native American communities, and collaborate with other Federal agencies that administer business and entrepreneurial programs. These items are also all statutory but are included in the regulation to assist readers in finding all relevant IBIP grant information in one location.

Note: The final rule replaces references to the Office of Indian Energy and Economic Development (IEED) with the Office of Indian Economic Development (OIED) to reflect the organizational change that moved the Division of Energy and Minerals Development from OIED to the Bureau of Indian Affairs Office of Trust Services.

On April 13, 2021, OIED published a proposed rule to implement the IBIP. See 86 FR 19162. During the public comment period, OIED hosted two Tribal consultation sessions by webinar on May 12, 2021, and May 13, 2021, to discuss the proposed rule. On May 12, 2021, representatives of 33 Tribes participated and on May 13, 2021, representatives of 14 Tribes participated. Comments on the proposed rule were accepted until June 14, 2021. OIED received a total of 11 written comment submissions on the proposed rule, including three from Tribes, two from Tribal and Indian organizations, five from organizations including four financial organizations, and one from an individual. Several commenters expressed support for both the legislation and regulation. No changes to the proposed regulatory text were made as a result of the consultation or public comments, but OIED responds to the comments as follows.

One Tribe and one economic development organization stated that the provision at § 1187.1(b), providing that the incubator will assist businesses to offer products and services to reservation communities, is too narrow because the objective of the IBIP should be to mentor and grow Native-owned businesses regardless of their potential market.

Response: The Act establishes the IBIP for the establishment and operation of business incubators that “serve reservation communities” by providing business incubation and other business services to Native businesses and Native entrepreneurs. See 25 U.S.C. 5803(a). The Act also requires an applicant incubator to describe one or more reservation communities it will serve. See 25 U.S.C. 5803(c)(1)(B). For these reasons, the regulation reflects that the incubator will offer products and services to reservation communities. Incubators must serve businesses in reservation communities, but those businesses may have markets that extend beyond reservation communities and the benefits of the IBIP will be broader than reservation communities.

One organization commented on the requirement at § 1187.3(b)(4)(i) for a nonprofit to have been operational for not less than one year before receiving a grant. This commenter stated one year is insufficient and recommended at least three years.

Response: The one-year requirement is statutory and cannot be changed by regulation. See 25 U.S.C. 5803(b)(1)(C).

A privately held corporation commented that it should be eligible for the IBIP, but that the regulation limits eligibility of organizations to Tribal or private nonprofit organizations.

Response: Eligibility for the IBIP is established by statute and cannot be changed by regulation. See 25 U.S.C. 5803(b) (limiting eligible entities to the following four categories: (i) An Indian Tribe; (ii) a Tribal college or university; (iii) an institution of higher education; or (iv) a private nonprofit organization or Tribal nonprofit organization.)

Two commenters requested the regulation specifically list as eligible entities Native Community Development Financial Institutions (CDFIs) and Tribally chartered nonprofit organizations authorized by Internal Revenue Code 7871. One commenter stated that Native CDFIs fit the category of Tribal or private nonprofit organizations providing business and financial technical assistance.

Response: The applicant will need to demonstrate in its application that it meets the eligibility criteria in one of the four categories defined in the statute and regulation. At that time, the applicant can articulate why a particular entity, such as Native CDFIs or Tribally chartered non-profits, meets those qualifications.

One Tribe recommended that a preference or priority be granted to Tribes, Tribal colleges and universities, and Tribal non-profit organizations. Similarly, several other commenters stated that Native-led entities should be awarded IBIP grants over non-Native entities.

Response: The statute defines the categories of eligible entities to include institutions of higher education and private nonprofit organizations, which may or may not be Native led. See 25 U.S.C. 5803(b).

One commenter recommended that, if the final rule includes non-Native entities as eligible, then additional criteria should be added to application evaluations to ensure the funding benefits Native communities.

Response: Congress established the eligibility requirements and evaluation criteria, and adding the requested requirements goes beyond our statutory authority; however, the evaluation criteria directs the Department to review whether the awardee will benefit Native American businesses and entrepreneurs.

A Tribe asked for clarification on whether in-kind support such as existing personnel or free use of existing office space to run the incubator counts toward the non-Federal contribution requirement. Another commenter requested examples of whether certain types of in-kind contributions and in-kind services would count toward the non-Federal contribution requirement, requesting at a minimum that the value of in-kind donation of incubator space and donated services to support the incubator or incubated businesses be included.

Response: The regulation requires applicants to describe in their applications their non-Federal contributions in an amount equal to not less than 25 percent of the grant amount requested. See § 1187.11(e). Non-Federal contributions may include donated space as measured by the value of rent, so that the applicant can use IBIP funding they receive for other purposes. Payroll for personnel working on the incubator who are not funded by IBIP funding may be allowable non-Federal contributions. The Notice of Funding Opportunity (NOFO) will provide more examples of allowable non-Federal contributions.

One commenter asked whether the non-Federal contribution has to be in hand as of the date of the application.

Response: The applicant must provide a commitment for the non-Federal contribution in the application, but does not have to have the contribution in hand on the date of the application. The applicant could rely on projected earnings, for example.

One Tribe commented that a Tribe's experience should be considered but additional points should not be given to Tribes that currently operate a business incubator because Tribes, both large and small, should not be at a disadvantage when competing for funding against currently operational applicants.

Response: The Department shares the goal of ensuring that both large and small Tribes benefit from the incubator program. Experience may help an applicant because applicants are required to commence providing services within three months under § 1187.20, but the NOFO will further clarify how applications will be ranked.

Two commenters stated that, when evaluating applications, OIED should consider metrics beyond financial impacts, such as services that enhance community well-being, to measure success. Another commenter stated that criteria should be based on success with clients, customer references, and completion of a viable product.

Response: Applicants will be requested to provide the milestones and outcomes of their project demonstrating to the Secretary the successful outcomes of the grant.

A Tribal organization commenter stated that IBIP funds should be awarded in a manner that equitably distributes funds to be regionally representative of Indian Country, and ensure that regionally focused programs are not precluded.

Response: OIED will be considering regional representation across Indian Country as part of the selection process. Details will be provided in the NOFO.

A Tribal organization commenter stated that OIED should consider socioeconomic factors, such as the size and location of eligible applicants, in awarding IBIP funds to ensure that Tribal nations with a small population or small land base have an opportunity to participate and benefit from the program.

Response: Each applicant will have to demonstrate that they are serving a diverse population and include justifications around socioeconomic factors and considerations related to size and location. For example, the evaluation criteria include a criterion for the ability of the eligible applicant to provide services at geographically remote locations where quality business guidance and counseling is difficult to obtain). See § 1187.20(a)(3).

One commenter asked what “significant” means in the context of the criterion at § 1187.20(a)(3) for the ability of the eligible applicant to provide quality incubation services to a significant number of Native businesses or Native entrepreneurs (or provide such services at geographically remote locations where quality business guidance and counseling is difficult to obtain).

Response: The significance of the number of Native businesses or Native entrepreneurs will be driven by the applicant's proposal and justification of how many Native businesses and Native entrepreneurs they intend to serve with the amount of funding requested.

A Tribal organization commenter stated that Tribal nations should be able to decide whether to incubate only those businesses within their jurisdictional boundaries or incubate Native entrepreneurs located away from their Tribal homelands.

Response: Applicants have flexibility in demonstrating who they will serve as long as they serve one or more reservation communities (regardless of whether those communities are near their own Tribe's homelands) and demonstrate that they have a competitive process for selecting Native businesses and Native entrepreneurs to participate in the business incubator. See §§ 1187.3(b)(4) and 1187.44(a)(2).

A Tribe urged OIED to recognize that transportation issues in Indian Country are significant and that, unless incubation services are within reservation boundaries or walking distance of a reservation, many Native businesses will have difficulty accessing the services. This Tribe recommended adding the word “significant” to the requirement to give priority to eligible applicants that will provide business incubation services on or near reservation communities.

Response: OIED is aware of the substantial transportation challenges in Indian Country and expects that proposals will provide options to address those barriers. The final rule does not add the word “significant” because priority will necessarily be significant, given that this is the only criterion granted priority.

A Tribal organization commenter stated that OIED should waive the requirement for program funds be used to provide physical workplace due to the COVID-19 pandemic and to support applicant use of IBIP funds to provide incubator services to Native businesses that cannot access the incubator's physical location due to remoteness, pandemic restrictions, and other barriers identified by Tribes and Tribal applicants.

Response: The requirement for the incubator to provide physical space is statutory, so it cannot be waived. See 25 U.S.C. 5803(b)(1)(B), (c)(1)(E).

A Tribe stated that, in conducting the site evaluation, OIED should refrain from imposing requirements for dedicated office space for each business and instead allow flexibility for co-working space or “hotel” style offices to allow the incubator to serve the largest number of participants.

Response: The incubator must be able to offer physical space to its participating businesses, but there is flexibility in how the incubator delivers services to the businesses.

One commenter stated that only applicants with existing workspace can apply but that OIED should allow funding to be used to construct and remodel space for small businesses.

Response: The regulation provides that the applicant does not have to be in possession of the proposed site at the time of the application. See §§ 1187.11(f) and 1187.12.

One commenter noted that § 1187.30 provides that grant funds will be in annual installments but may be more frequently (as long as not more than quarterly), and noted that in their experience an annual disbursement is preferable.

Response: OIED intends to make annual disbursements unless otherwise requested by the applicant, as stated in the rule.

A commenter suggested that the regulation should measure an incubator's performance as compared with other small businesses across the country and outside the IBIP to ensure the incubators are providing enough resources before renewing the grant.

Response: The regulation (at § 1187.41(a)(2)) provides that OIED will measure the performance of the awardee's business incubator, as compared to the performance of other business incubators receiving grants under the IBIP, because this is a statutory requirement. See 25 U.S.C. 5803(d)(4).

A Tribe recommended OIED also assess, in determining whether to renew, whether the incubator model continues to be beneficial to the Tribe and to the businesses.

Response: OIED will conduct annual evaluations to measure successful outcomes of the grant based on the milestones and outcomes for the project the incubator included in their application. See § 1187.50. OIED will consider the results of the annual evaluation in determining whether to renew a grant award. See § 1187.41(a)(1).

A commenter stated that the regulation should include benchmarks to measure incubators' success and suggested imposing additional requirements such as requiring incubators to invest in community cohesion, leverage their development to secure funding from State and local governments, reallocate a portion of the grant money toward investments with return equity, and make increased visibility in public and private sectors and goal to attract potential investors.

Response: Applicants will be requested to provide the milestones and outcomes of their project demonstrating to the Secretary the successful outcomes of the grant.

A Tribe recommended that an allowable use of grant funds be for staffing purposes.

Response: Use of grant funds may include staffing. See 25 U.S.C. 5803(e)(2)(D). Applicants will describe their costs within their proposed budget.

A commenter welcomed the flexibility of allowing grant funds to be used for appropriate uses typically associated with business incubators and suggested acceptable uses of grant funds should include revolving loan funds, job creation, and technology commercialization, among other uses.

Response: The applicant will define in the proposal how the grant funds will be used and what services and approaches it will take.

One Tribe suggested eliminating the requirement for non-Federal contributions and one stated that the waiver authority must be construed broadly because of the impact on Tribes of the COVID-19 pandemic causing significant economic losses. A Tribal organization also requested OIED consider a broader waiver of the non-Federal contribution requirement and another commenter supported providing a blanket waiver for the first round of awarded IBIP grants.

Response: OIED will continue to require the non-Federal contribution as required in the statute; however, OIED recognizes the difficulties Tribes have encountered during the pandemic and waiver decisions will be considered in accordance with its waiver authority based on the criteria in § 1187.43.

A commenter encouraged OIED to allow applicants to request waivers in advance of the grant application deadline for IBIP.

Response: The statutory criteria for waiving the non-Federal contribution include that the incubator will provide quality business incubation services and that one or more reservation communities to be served are unlikely to receive similar services—these are both determinations that OIED cannot make until it reviews the full application. See 25 U.S.C. 5803(d)(3)(B).

Two commenters recommended clarifying that applicants' requests for waivers will not negatively impact evaluation of their grant applications.

Response: OIED understands the difficulty in obtaining non-Federal contributions and will clarify in the NOFO whether non-Federal contributions will be included in the ranking criteria.

A Tribe stated that Tribes should have broad discretion in structuring the competitive process by which participants are selected to participate in the incubator.

Response: The applicant defines what their competitive process will be under § 1187.44(a)(2).

A Tribe stated that, in the requirement for applicants to provide entrepreneurship and business skills training and education to Native businesses and Native entrepreneurs, the list of training and education topics in the curriculum should be introduced by “including but not limited to” and list an overview of legal issues including choice of entity and legal structures, and an overview of Federal small business lending and contracting programs.

Response: The applicant defines in their application what their curriculum will include, so no change to the regulation is necessary.

A Tribe stated that the requirement for the incubator to provide access to investors should include a “best efforts” qualifier because the barriers in accessing capital in Indian Country are well documented.

Response: The applicant defines in their application what their best efforts will include, so no change to the regulation is necessary.

A Tribe stated that it is not unusual for for-profit business incubators to make a nominal investment in a business in exchange for equity in that business, accomplishing the dual goals of providing the new business with startup capital and help the program become self-sustaining. The Tribe requested clarification on whether such investments by business incubators participating in IBIP would be permissible.

Response: The IBIP is not structured in a way that would allow the business incubator to obtain return equity from its participating businesses. Incubators may, however, request that successful business participants give back to the program by mentoring and sharing best practices with other businesses.

A Tribe recommended that the regulation also require awardees to submit reports detailing capital investments and revenue growth.

Response: The grantee is free to share information detailing capital investments and revenue growth in its report, but the rule does not require this information in the reports. Instead, the required annual report focuses on the number of Native businesses and entrepreneurs the incubator assists and their performance while participating and after graduation or departure from the incubator.

A commenter stated that the requirement for reporting business performance could be a deterrent for small business startups who are wary of making financial disclosures, so other metrics such as number of new employees or customers should be used instead.

Response: Financial oversight will consist of Federal reporting toward the grant funding only. The applicant will be able to specify how they are going to oversee the incubator activities and justify use of the grant funding and can craft those metrics to avoid revealing any financial disclosures that it believes will deter Native businesses and entrepreneurs from participating in the incubator.

A Tribe stated the requirement for awardees to become operational should become operational should be lengthened from 3 months to allow awardees at least 6 months.

Response: When determining the allowable “start-up” timeframe for grantees, OIED also considers the total time available to implement the activities under the grant. Since these are only one-year grants, allowing a 6-month “start-up” timeframe would leave only 6 months for implementation. For that reason, the final rule retains the 3-month timeframe for the grantee to commence providing services.

Two commenters stated their appreciation that the regulation does not include a requirement that businesses graduate from incubator programs within a certain period of time.

Response: The applicant decides when participant businesses graduate from their program. (The incubator awardee itself receives funding for 3 years with one potential renewal.)

A Tribe noted that one of the greatest problems facing economic development in Indian Country is the lack of practical broadband access and urged adding to the regulation that the named federal Departments and agencies be required to provide broadband support to the maximum extent practicable.

Response: The requested additional language was not included in the final regulation because that language is not clearly authorized by the statute; however, OIED will actively engage with our Federal partners to continue to improve broadband in Indian Country. See 25 U.S.C. 5806.

Several commenters requested that additional funding be appropriated to this program.

Response: OIED relies upon Congress for annual appropriations for the IBIP.

A Tribe requested OIED consider the unique sovereign status of Tribes and unique issues Tribes and Tribal members face when attempting to obtain conventional financing in Indian Country. Another commenter also noted that Native American businesses and entrepreneurship will differ in practice and view across Tribal communities. Another commenter provided statistics on the percentage of minority small business owners and stated that Native American businesses account for the smallest number of minority-owned firms.

Response: OIED recognizes the challenges of conventional financing in Indian Country. Congress also found in creating the IBIP that all entrepreneurs face challenges when transforming ideas into businesses, and entrepreneurs that want to provide services to reservation communities face additional barriers. The IBIP is intended to help address these challenges and includes, as a minimum requirement, that IBIP awardees offer culturally tailored incubation services to Native businesses and Native entrepreneurs. See 25 U.S.C. 5803(e)(2)(A) and § 1187.44(a)(1).

A commenter stated that OIED should commit to making information about IBIP applications, grant awards, and the impact of IBIP funding available publicly. This commenter stated that the information would be valuable for documenting demand for the program, understanding the program's reach and impact across Native communities and contexts, and raising the visibility of grant recipients.

Response: Disclosure of grant applications and reports are limited by Privacy Act and Freedom of Information Act (FOIA) exemptions, but OIED plans to share grant awards and success stories while complying with Privacy Act restrictions and FOIA exemptions.

A non-Tribal commenter urged OIED to prioritize feedback from Tribes and Native-led organizations in the rulemaking process.

Response: OIED hosted government-to-government consultation with Tribes during preparation of this final rule and considered Tribes' input accordingly.

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The E.O. directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This rule establishes a program to provide grants for business incubators, some of which may be small entities, but the $5 million in total annual appropriations is not expected to reach the threshold of having a significant economic effect on a substantial number of small entities.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. Because this rule establishes a program supported by $5 million in annual appropriations this rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule does not have a monetarily significant or unique effect on State, local, or Tribal governments or the private sector. This rule would establish a program to provide grants to certain business incubators that will serve Tribal communities. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

This rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630 because this rule does not affect individual property rights protected by the Fifth Amendment or involve a compensable “taking.” A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required.

This rule complies with the requirements of Executive Order 12988. Specifically, this rule: (a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and (b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has substantial direct effects on federally recognized Indian Tribes because the rule requires early Tribal involvement in the design of a process that will have significant impact on one or more recognized Tribes. OIED conducted Tribal consultation sessions by webinar on May 12 and 13 for input on the proposed rule. Responses to comments received from Tribes are included in the Responses to Comments section, above.

This rule contains new information collections. All information collections require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. The Department is seeking approval of a new information collection, as follows.

Brief Description of Collection: This information collection includes items that an applicant must include in an application for an Indian Business Incubator Program (IBIP) grant and that IBIP awardees must include in the annual report. Applicant contents include such items as a description of the reservation communities the incubator will serve, a three-year plan regarding the services to be offered to participating entrepreneurs, among other items, information regarding applicant's experience in conducting assistance programs, and a site description of the location at which the applicant will provide work space to participants, among other items. The annual report includes a detailed breakdown of the entrepreneurs the incubator has served for the year covered by the report.

Title: Indian Business Incubator Program (IBIP).

OMB Control Number: 1076-0199.

Form Number: None.

Type of Review: New collection.

Respondents/Affected Public: Individuals, Private Sector, Government.

Total Estimated Number of Annual Respondents: 50.

Total Estimated Number of Annual Responses: 100.

Estimated Completion Time per Response: Ranges from 5 to 35 hours.

Total Estimated Number of Annual Burden Hours: 2,000 hours.

Respondents' Obligation: Required to obtain a benefit.

Frequency of Response: Occasionally.

Total Estimated Annual Non-Hour Burden Cost: $0.

A proposed rule, soliciting comments on this collection of information for 30 days, was published on April 13, 2021 (86 FR 19162). No comments were received on the information collections.

As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on any aspect of this information collection, including:

(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;

(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;

(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and

(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of response.

Written comments and recommendations for the information collection should be sent within 30 days of publication of this notification to www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function. Please provide a copy of your comments to consultation@bia.gov. Please reference OMB Control Number 1076-0199 in the subject line of your comments.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because this is an administrative and procedural regulation. (For further information see 43 CFR 46.210(i)). We have also determined that this rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.

This final rule is not subject to the effective date limitation of 5 U.S.C. 553(d) because there is good cause to dispense with the 30-day delayed effective date requirement in this case. The regulation sets out how a grant program will be conducted, under provisions largely prescribed by statute. A delayed effective date would be unnecessary and contrary to the public interest because it would only serve to delay the Department's ability to solicit applications for the grant funding.

On June 14, 2021, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zones; Fireworks Displays, Air Shows and Swim Events in the Captain of the Port Long Island Sound Zone (86 FR 31456). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to fireworks displays and other marine events no longer held. We received no comments during the comment period that ended July 14, 2021.

The Captain of the Port Long Island Sound (COTP) will amend Table 1 and 2 to 33 CFR 165.151 Safety Zones; Fireworks Displays, Air Shows and Swim Events in the Captain of the Port Long Island Sound Zone because adding a single recurring marine event and removing six marine events that no longer occur will considerably reduce administrative overhead and provide the public with notice through publication in the Federal Register of the upcoming recurring safety zone.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The COTP has determined that potential hazards associated with this annual recurring event will be a safety concern for anyone within the area where the fireworks display will commence. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled event.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable and contrary to the public interest because the safety zone must be established by September 6, 2021, for the Dolan Family Labor Day Fireworks display to mitigate the potential safety hazards.

As noted above, we received no comments on our NPRM published June 14, 2021. There are no changes in the regulatory text of this rule from the proposed rule.

This rule establishes a safety zone for the annual Dolan Family Labor Day Fireworks event by adding this event to Table 1 to 33 CFR 165.151. The event will occur on a day in September at a time to be determined each year. The regulated area will encompass waters of Long Island Sound off of Oyster Bay, NY. When enforced on the single day in September each year, this safety zone will restrict vessels from transiting the regulated area. When enforced on the one day in September each year, these safety zones will restrict vessels from transiting the regulated area. The specific description of this regulation appears at the end of this document.

Additionally, this rulemaking updates Table 1 and 2 to CFR 165.151 by removing six events that no longer take place. The Coast Guard will remove event 5.1 Jones Beach Air Show safety zone from Table 1 and remove five events from Table 2: (1) 1.1 Swim Across the Sound; (2) 1.3 Maggie Fischer Memorial Great South Bay Cross Bay Swim; (3) 1.4 Waves of Hope Swim; (4) 1.5 Stonewall Swim; and (5) 1.6 Swim Across America Greenwich safety zones.

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

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

This regulatory action determination is based on on the size, location, duration, and time-of-day of the safety zone. This rule establishes a safety zone for the annual Dolan Family Labor Day Fireworks event. The regulated area will encompass a 500′ radius at approximate point of 40°53′43.90″ N, 73°30′06.85″ W navigable waters of Oyster Bay near Oyster Bay, NY. When enforced on the single day in September each year, this safety zone would restrict vessels from transiting the regulated area. Once enforced on the one day in September each year, these safety zones would restrict vessels from transiting the regulated area. The Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule will allow vessels to seek permission to enter the zone.

Additionally, this rulemaking updates Table 1 and 2 to CFR 165.151 by removing six events that no longer take place.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves establishing an annual recurring safety zone for a firework display and removing six other various marine events in Coast Guard Sector Long Island Sound's Captain of the Port Zone. It is categorically excluded from further review under paragraph L60 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

Section 1871(a) of the Social Security Act (the Act) sets forth certain procedures for promulgating regulations necessary to carry out the administration of the insurance programs under Title XVIII of the Act. Section 1871(a)(3)(A) of the Act requires the Secretary, in consultation with the Director of the Office of Management and Budget (OMB), to establish a regular timeline for the publication of final regulations based on the previous publication of a proposed rule or an interim final rule. In accordance with section 1871(a)(3)(B) of the Act, such timeline may vary among different rules, based on the complexity of the rule, the number and scope of the comments received, and other relevant factors. However, the timeline for publishing the final rule, cannot exceed 3 years from the date of publication of the proposed or interim final rule, unless there are exceptional circumstances. After consultation with the Director of OMB, the Secretary published a notice, which appeared in the December 30, 2004 Federal Register on (69 FR 78442), establishing a general 3-year timeline for publishing Medicare final rules after the publication of a proposed or interim final rule.

Section 1871(a)(3)(C) of the Act states that upon expiration of the regular timeline for the publication of a final regulation after opportunity for public comment, a Medicare interim final rule shall not continue in effect unless the Secretary publishes a notice of continuation of the regulation that includes an explanation of why the regular timeline was not met. Upon publication of such notice, the regular timeline for publication of the final regulation is treated as having been extended for 1 additional year.

On September 6, 2016 Federal Register (81 FR 61538), the Department of Health and Human Services (HHS) issued a department-wide interim final rule titled “Adjustment of Civil Monetary Penalties for Inflation” that established new regulations at 45 CFR part 102 to adjust for inflation the maximum civil monetary penalty amounts for the various civil monetary penalty authorities for all agencies within the Department. HHS took this action to comply with the Federal Civil Penalties Inflation Adjustment Act of 1990 (the Inflation Adjustment Act) (28 U.S.C. 2461 note 2(a)), as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (section 701 of the Bipartisan Budget Act of 2015, (Pub. L. 114-74), enacted on November 2, 2015). In addition, this September 2016 interim final rule included updates to certain agency-specific regulations to reflect the new provisions governing the adjustment of civil monetary penalties for inflation in 45 CFR part 102.

One of the purposes of the Inflation Adjustment Act (see section 2(b)(1)) was to create a mechanism to allow for regular inflationary adjustments to federal civil monetary penalties. The 2015 amendments removed an inflation update exclusion that previously applied to the Social Security Act as well as to the Occupational Safety and Health Act. The 2015 amendments also “reset” the inflation calculations by excluding prior inflationary adjustments under the Inflation Adjustment Act and requiring agencies to identify, for each penalty, the year and corresponding amount(s) for which the maximum penalty level or range of minimum and maximum penalties was established (that is, originally enacted by Congress) or last adjusted other than pursuant to the Inflation Adjustment Act. In accordance with section 4 of the Inflation Adjustment Act, agencies were required to: (1) Adjust the level of civil monetary penalties with an initial “catch-up” adjustment through an interim final rulemaking (IFR) to take effect by August 1, 2016; and (2) make subsequent annual adjustments for inflation.

In the September 2016 interim final rule, HHS adopted new regulations at 45 CFR part 102 to govern adjustment of civil monetary penalties for inflation. The regulation at 45 CFR 102.1 provides that part 102 applies to each statutory provision under the laws administered by HHS concerning civil monetary penalties, and that the regulations in part 102 supersede existing HHS regulations setting forth civil monetary penalty amounts. The civil money penalties and the adjusted penalty amounts administered by all HHS agencies are listed in tabular form in 45 CFR 102.3. In addition to codifying the adjusted penalty amounts identified in § 102.3, the HHS-wide interim final rule included several technical conforming updates to certain agency-specific regulations, including various CMS regulations, to identify their updated information, and incorporate a cross-reference to the location of HHS-wide regulations.

Because the conforming changes to the Medicare provisions were part of a larger, omnibus departmental interim final rule, we inadvertently missed setting a target date for publication of the final rule to make permanent the conforming changes to the Medicare regulations in accordance with section 1871(a)(3)(A) of the Act and the procedures outlined in the December 2004 notice. Therefore, in the January 2, 2020 Federal Register (85 FR 7), we published a document continuing the effectiveness of the interim final rule for an additional year, until September 6, 2020.

On January 31, 2020, pursuant to section 319 of the Public Health Service Act (PHSA), the Secretary determined that a Public Health Emergency (PHE) exists for the United States to aid the nation's healthcare community in responding to COVID-19. On March 11, 2020, the World Health Organization (WHO) publicly declared COVID-19 a pandemic. On March 13, 2020, the President declared the COVID-19 pandemic a national emergency. This declaration, along with the Secretary's January 31, 2020 declaration of a PHE, conferred on the Secretary certain waiver authorities under section 1135 of the Act. On March 13, 2020, the Secretary authorized waivers under section 1135 of the Act, effective March 1, 2020. 1 Effective July 20, 2021, the Secretary renewed the January 31, 2020 determination that was previously renewed on April 21, 2020, July 23, 2020, October 2, 2020, January 7, 2021, April 15, 2021, and July 19, 2021, that a PHE exists and has existed since January 27, 2020. The unprecedented nature of this national emergency has placed enormous responsibilities upon CMS to respond appropriately, and resources have had to be re-allocated throughout the agency in order to be responsive.

Due to the PHE and in accordance with section 1871(a)(3)(C) of the Act, on September 8, 2020 (85 FR 55385), we published a second document continuing the effectiveness of effect and the regular timeline for publication of the final rule for an additional year, until September 6, 2021.

Because of CMS's continued efforts to address resource challenges resulting from the PHE and consistent with section 1871(a)(3)(C) of the Act, we are publishing a third notice of continuation extending the effectiveness of the technical conforming changes to the Medicare regulations that were implemented through interim final rule and to allow time to publish a final rule. Therefore, the Medicare provisions adopted in interim final regulation continue in effect and the regular timeline for publication of the final rule is extended for an additional year, until September 6, 2022.

Why we need to publish a rule. Under the Act, a species may warrant protection through listing if it is endangered or threatened throughout all or a significant portion of its range. In addition, to the maximum extent prudent and determinable, we must designate critical habitat for any species that we determine to be an endangered or threatened species under the Act. Listing a species as an endangered or threatened species and designation of critical habitat can only be completed by issuing a rule.

What this rule does. This rule will list the slenderclaw crayfish ( Cambarus cracens ) as an endangered species and will finalize the designation of critical habitat for the species under the Act. Accordingly, this rule revises part 17 of title 50 of the Code of Federal Regulations at 50 CFR 17.11 and 17.95.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the slenderclaw crayfish is threatened by competition from a nonnative species (Factors A and E) and habitat degradation resulting from poor water quality (Factor A).

Under section 4(a)(3) of the Act, if we determine that any species is an endangered or threatened species we must, to the maximum extent prudent and determinable, designate critical habitat. Under section 4(b)(2) of the Act, the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species.

Economic analysis. In accordance with section 4(b)(2) of the Act, we prepared a draft economic analysis of the impacts of designating critical habitat. We published an announcement of the completion of the draft and solicited public comments (83 FR 50582; October 9, 2018). We received no comments on the draft economic analysis. We adopt the draft economic analysis as final.

Peer review and public comment. We sought comments from independent specialists to ensure that our designation is based on scientifically sound data, assumptions, and analyses. We invited these peer reviewers to comment on our species status assessment (SSA) report, which informed both the proposed rule and this final rule. We also considered all comments and information received from the public and peer reviewers during the comment period.

We prepared an SSA report for the slenderclaw crayfish. Written in consultation with species experts, the SSA report represents the best scientific and commercial data available concerning the status of the slenderclaw crayfish, including the impacts of past, present, and future factors (both adverse and beneficial) affecting the species (Service 2019, entire). The SSA report underwent independent peer review by scientists with expertise in crayfish biology, habitat management, and stressors (factors negatively affecting the species) to the slenderclaw crayfish. The SSA report, the proposed rule, this final rule, and other materials relating to this rulemaking can be found on the Service's Southeast Region website at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069.

On October 9, 2018, we published in the Federal Register a proposed rule (83 FR 50582) to list the slenderclaw crayfish as a threatened species with provisions under section 4(d) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ) and to designate critical habitat. Please refer to that proposed rule for a detailed description of all previous Federal actions concerning this species.

The slenderclaw crayfish is a relatively small, cryptic freshwater crustacean, with an average lifespan of 2 to 3 years, that is endemic to streams on Sand Mountain within the Tennessee River Basin in DeKalb and Marshall Counties, Alabama. Primarily due to the invasion of nonnative virile crayfish ( Faxonius virilis ) that prey upon and compete with the slenderclaw crayfish, in addition to habitat degradation resulting in poor water quality, the species' range is reduced with extirpation at some sites and low condition in both populations currently.

Please refer to the October 9, 2018, proposed listing and designation of critical habitat rule for the slenderclaw crayfish (83 FR 50582) and the SSA report for a full summary of species information. Both are available on the Service's Southeast Region website at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069.

In the October 9, 2018, proposed listing and critical habitat rule (83 FR 50582), we requested that all interested parties submit written comments on the proposal by December 10, 2018. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. A newspaper notice inviting general public comment was published in the Guntersville (Alabama) Advertiser Gleam on October 17, 2018. We did not receive any requests for a public hearing. All substantive information provided during the comment period has either been incorporated directly into the SSA report or this final determination or is addressed below, as appropriate.

In accordance with our joint policy on peer review published on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we solicited the expert opinions from six knowledgeable individuals with scientific expertise that included familiarity with slenderclaw crayfish and its habitat, biological needs, and threats. We received responses from two peer reviewers.

We reviewed all comments received from the peer reviewers for substantive issues and new information regarding the slenderclaw crayfish, and we updated the SSA report prior to the proposed rule. The peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve the final SSA report. Peer reviewer comments were incorporated into the SSA report and this final rule as appropriate. In our response to peer reviewer comments, we only address issues that were not reflected in changes to the SSA report or this final rule.

Comment: One peer reviewer suggested that we project increased variability in rainfall instead of change in annual mean precipitation in our future condition projections. The reviewer noted that one historic drought could potentially eliminate one of these populations, and we do not understand the effects of flooding on the slenderclaw crayfish. In addition, the reviewer noted that considering climate-induced variability with urbanization could lead to a higher probability of occasional stream drying.

Our response: Although we did not use a model to project increased variability in rainfall as the commenter suggested, in the SSA, we did account for increased variability in rainfall and the hydrological impacts from precipitation change in our future-scenario projections and predictions of the slenderclaw crayfish. To assess the future condition of slenderclaw crayfish, we projected how precipitation can change in order to understand potential future hydrologic impacts within the system. Based on this information, we developed future scenarios on the plausible range in the hydrologic impacts from precipitation change as well as other factors influencing the viability of the slenderclaw crayfish.

We received 10 public comments on the proposed listing rule and critical habitat rule. Where commenters provided substantive comments or new information concerning the proposed listing and species-specific section 4(d) rule for the slenderclaw crayfish, we incorporated this information into the final SSA report and this final rule as appropriate.

(1) Comment: One commenter expressed concern about the presence of the virile crayfish in slenderclaw crayfish habitat and provided additional information and references on research of the effects of virile crayfish on other crayfish species. The commenter noted the virile crayfish has been attributed to decline of other native crayfish species in rivers and streams in West Virginia, Idaho, Wyoming, and Utah.

Our response: We appreciate the additional information and references provided regarding the virile crayfish effects to other native crayfish species. We incorporated the information from the additional studies of virile crayfish into the appropriate section of the SSA report (Service 2019, pp. 16-17). We further considered the additional information about the invasion of virile crayfish and what the impact is to the current condition of the slenderclaw crayfish. After further consideration of the invasion of virile crayfish, coupled with the low abundance of slenderclaw crayfish, we determined the risk of extinction for the slenderclaw crayfish is higher (see Determination of Slenderclaw Status, below) than we characterized in the proposal to list the slenderclaw crayfish as a threatened species. Based on the documented past expansion of the virile crayfish, current invasion and expansion into the slenderclaw crayfish's range in both populations will occur. Therefore, the slenderclaw crayfish is currently at risk of extinction as a result of the virile crayfish expansion. We reassessed the best available scientific and commercial data available regarding the slenderclaw crayfish to evaluate its status under the Act (see Determination of Slenderclaw Crayfish Status, below).

(2) Comment: Several other commenters expressed their opinion that the Service should list the species as endangered, rather than threatened, and stated reasons including degradation of its habitat, inadequacy of existing regulatory mechanisms, small population size, competition with virile crayfish, and climate change. One commenter specifically identified kudzu ( Pueraria montana ), an invasive plant, as a current and future threat to the riparian habitat in the range of the slenderclaw crayfish. In addition, the commenter noted that degradation of habitat for the slenderclaw crayfish is ongoing despite existing regulatory mechanisms.

Our response: When we evaluated the best available information, we concluded that kudzu was not a threat to the slenderclaw crayfish. Although we recognize that kudzu can alter habitat, this plant has not been documented to impact the slenderclaw crayfish. As to habitat degradation, as discussed under the Summary of Biological Status and Threats and Determination sections of the preamble of this final listing rule, we determined that existing regulatory mechanisms currently address the threat of habitat degradation. Other than identifying kudzu as a potential threat, the commenters did not provide any new information regarding current threats to the slenderclaw crayfish or its current status that was not already considered in the SSA report or proposed rule. However, as stated above under Our Response to (1) Comment, based on new information about the invasive virile crayfish, coupled with known information about slenderclaw crayfish abundance, we determined the slenderclaw crayfish meets the definition of an endangered species (see Determination of Slenderclaw Crayfish Status, below).

(3) Comment: Two commenters stated that the slenderclaw crayfish has been extirpated from 80 percent of its historical range, citing information from a status survey for three rare crayfishes, including the slenderclaw crayfish (Kilburn et al. 2012, entire).

Our response: As discussed in Kilburn et al. (2012, entire), the slenderclaw crayfish was only ever known to occur at five historical sites within two watersheds, Short and Town Creeks, and the authors did not find the slenderclaw crayfish outside these two watersheds. Since the publication of Kilburn et al. (2012, entire), recent surveys conducted in 2015 through 2017 identified the slenderclaw crayfish occurring at three new sites within this historical range. Although there is evidence of reduced abundance and presumed extirpation at four historical sites within this range, there are currently two populations of slenderclaw crayfish occurring across the range in Alabama, and the slenderclaw crayfish occurs within the two watersheds where it historically was known to occur. In short, at this time, the slenderclaw crayfish has not been extirpated from 80 percent of its historical range. Please refer to section 2.5 Range and Distribution in the SSA report for additional information on the historical and current range of the species.

(4) Comment: The Tennessee Valley Authority (TVA) recommended that the planting of bare-root seedlings as a method to revegetate and stabilize streambanks be included in the 4(d) rule. TVA has found this method to be successful for establishing a diversity of vegetation within riparian zones.

Our response: We agree that the planting of bare-root seedlings as a method to revegetate and stabilize streambanks would be beneficial to slenderclaw crayfish. However, in this final rule, the Service has determined that the slenderclaw crayfish meets the definition of an endangered species, and the Act does not allow issuance of a 4(d) rule for a species listed as endangered.

The final rule incorporates changes to our proposed listing rule and SSA Report based on the comments we received, as discussed in the Summary of Comments and Recommendations. Based on comments received and our further consideration of the invasion of virile crayfish coupled with low abundance of slenderclaw crayfish, we determined the risk of extinction is higher (see Determination, below) than we characterized in the proposal to list the slenderclaw crayfish as a threatened species (83 FR 50582; October 9, 2018). We reassessed our analysis and found that the documented expansion and invasion of the virile crayfish in the slenderclaw crayfish's range, along with additional information regarding impacts to other native crayfish species and known low abundance in both populations of the slenderclaw crayfish, places the slenderclaw crayfish at a high risk for extinction throughout its range. Thus, after evaluating the best available information and the Act's regulation and policies, we determined that the slenderclaw crayfish meets the definition of an endangered species, and such status is more appropriate than that of a threatened species as originally proposed. Because we determined that the slenderclaw crayfish meets the definition of an endangered species, a 4(d) rule is inapplicable; consequently, the proposed special rule under the authority of section 4(d) of the Act was removed from the final rule. We received no substantive comments on the proposed critical habitat designation; accordingly, there are no changes in the final designation. Lastly, we made minor editorial and nonsubstantive corrections throughout the SSA report and this final rule.

We completed a comprehensive assessment of the biological status of the slenderclaw crayfish and prepared an SSA report (Service 2019, entire), which provides a thorough account of the species' overall viability. Below, we summarize the key results and conclusions of the SSA report.

To evaluate the current and future viability of the slenderclaw crayfish, we assessed the three conservation biology principles of resiliency, redundancy, and representation (the “3 Rs” described in detail in the SSA report) (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

The historical range of the slenderclaw crayfish included two known populations, Short and Town Creeks, in watersheds leading into the Tennessee River in Alabama. Within the Short Creek population, a total of 90 slenderclaw crayfish, with 56 of those being juveniles, were collected during the period 1970-1974 (Bouchard and Hobbs 1976, entire; Schuster 2017, unpublished data). Historically, only one crayfish was collected in the Town Creek population in the period 1970-1974 (Bouchard and Hobbs 1976, entire; Schuster 2017, unpublished data). Surveys conducted from 2009 through 2017 have documented the slenderclaw crayfish within the same two populations, Short Creek (three sites in Shoal Creek) and Town Creek (one site in Bengis Creek and one site in Town Creek) (Kilburn et al. 2014, pp. 116-117; Bearden et al. 2017, pp. 17-18; Schuster 2017, unpublished data; Taylor 2017, unpublished data).

Of the five historical sites, the slenderclaw crayfish is no longer found and is presumed extirpated at three sites in the Short Creek population (one site in Short Creek and two sites in Scarham Creek) and one site in the Town Creek population (one site in Bengis Creek) despite repeated survey efforts (Kilburn et al. 2014, pp. 116-117; Bearden et al. 2017, pp. 17-18; Schuster 2017, unpublished data; Taylor 2017, unpublished data). Across current survey efforts from 2009 through 2017, researchers collected 28 slenderclaw crayfish, including 2 juveniles, within the Short Creek population, and 2 adults and 2 juveniles from the Town Creek population. There are no actual historical or current population estimates for slenderclaw crayfish, and the abundance numbers (total number collected) reported are not population estimates.

At the population level, the overall current condition in terms of resiliency was determined to be low for both Short Creek and Town Creek populations. We estimate that the slenderclaw crayfish currently has some adaptive potential ( i.e., representation) due to the habitat variability features occurring in the Short Creek and Town Creek populations. The Short Creek population occurs in streams with predominantly large boulders and fractured bedrock, broader stream widths, and greater depths, and the Town Creek population occurs in streams with larger amounts of gravel and cobble, narrower stream widths, and shallower depths (Bearden 2017, pers. comm.). At present, the slenderclaw crayfish has two populations in low condition (resiliency) with habitat types that vary between populations. Therefore, given the variable habitat in which the slenderclaw crayfish occurs, the species may have some level of adaptive capacity. Given the low resiliency of both populations of the slenderclaw crayfish, current representation is reduced.

The slenderclaw crayfish exhibits limited redundancy given its narrow range and that four out of five sites within the species' historical range are presumed extirpated. In addition, connectivity between the Short Creek and Town Creek populations is likely low, because both Short and Town Creek streams flow downstream into, and thus are separated by, Guntersville Lake. To date, no slenderclaw crayfish have been documented in impounded areas including Guntersville Lake. Multiple sites in the same population could allow recolonization following a catastrophic event ( e.g., chemical spill) that may affect a large proportion of a population; however, given the species' limited redundancy and current low resiliency of both populations, it might be difficult to reestablish an entire population affected by a catastrophic event, as the connectivity between the two populations is low. Further, the currently occupied sites in the Short Creek population are in a single tributary, and one catastrophic event could impact this entire population.

The Act directs us to determine whether any species is an endangered species or a threatened species because of any factors affecting its continued existence. Under section 4(a)(1) of the Act, we may list a species based on (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

We reviewed the potential risk factors ( i.e., threats or stressors) that are affecting the slenderclaw crayfish now and are expected to affect it into the future. Because we have determined that the species is currently in danger of extinction throughout its range, in this final rule we will discuss in detail only those threats that we conclude are driving the current status and viability of the species. We have determined that competition from a nonnative species (Factors A and E), habitat degradation resulting from poor water quality (Factor A), and low abundance (Factor E) pose the largest risk to the current viability of the slenderclaw crayfish. Other potential stressors to the species—hydrological variation and alteration (Factors A and E), land use (Factor A), and scientific collection (Factor B)—are discussed in the SSA report and proposed rule. Currently existing regulatory mechanisms, such as regulations implemented under the Clean Water Act to protect water quality and instream habitat, address the habitat degradation threat to the slenderclaw crayfish. However, we also found that existing regulatory mechanisms do not address, nor do they contribute to, the threat of the nonnative virile crayfish, which is the primary threat to the slenderclaw crayfish. We find the species does not face significant threats from disease or predation (Factor C). We also reviewed the conservation efforts being undertaken for the habitat in which the slenderclaw crayfish occurs.

The virile crayfish ( Faxonius virilis ), previously recognized as Orconectes virilis (Crandall and De Grave 2017, p. 5), is a crayfish native to the Missouri, upper Mississippi, lower Ohio, and the Great Lakes drainages (Service 2015, p. 1). The species has spread from its native range through dispersal as fishing bait, as pets, and through commercial (human) consumption (Schwartz et al. 1963, p. 267; Service 2015, p. 4). Virile crayfish inhabit a variety of watersheds in the United States, including those with very few to no native crayfish species, and have been found in lake, wetland, and stream environments (Larson et al. 2010, p. 2; Loughman and Simon 2011, p. 50). Virile crayfish are generalists, able to withstand various conditions, and have the natural tendency to migrate (Loughman and Simon 2011, p. 50). This species has been documented to spread approximately 124 mi (200 km) over 15 years (B. Williams 2018, pers. comm.; Williams et al. 2011, entire).

Based on comparison of body size, average claw size, aggression levels, and growth rates, it appears that the virile crayfish has an ecological advantage over several native crayfish species, including those in the Cambarus and Procambarus genera (Hale et al. 2016, p. 6). In addition, virile crayfish have been documented to displace native crayfish (Hubert 2010, p. 5; Loughman and Welsh 2010, pp. 70 and 72).

Virile crayfish were first collected near the range of slenderclaw crayfish in 1967 (Schuster 2017, unpublished data). Since then, the virile crayfish has been documented in Guntersville Lake (a Tennessee Valley Authority reservoir constructed in 1939, on the Tennessee River mainstem) (Schuster 2017, unpublished data; Taylor 2017, unpublished data). In addition, the virile crayfish was found in 2015 at the type locality (location where the species was first described) for the slenderclaw crayfish in Short Creek (Short Creek population), in which the slenderclaw crayfish no longer occurs (Schuster 2017, unpublished data; Taylor 2017, unpublished data). In 2016, the virile crayfish was found at two sites in Drum Creek within the Short Creek population boundary and at the confluence of Short Creek and Guntersville Lake (Schuster 2017, unpublished data; Taylor 2017, unpublished data). During 2017, 20 virile crayfish were again found at the location where slenderclaw crayfish was first described in Short Creek (Taylor 2017, unpublished data). Also during 2017, this nonnative crayfish was documented at four new sites in adjacent watersheds outside of the Short Creek population boundary. Juvenile virile crayfish have been collected in the Short Creek population, indicating that the species is established there (Taylor 2017, unpublished data). To date, no virile crayfish have been documented within the Town Creek population boundary (Schuster 2017, unpublished data; Taylor 2017, unpublished data).

The adaptive nature of the virile crayfish, the effects of this nonnative species on other crayfish species in their native ranges, and records of the virile crayfish's presence in the slenderclaw crayfish's historical and current range indicate that the virile crayfish is a factor that negatively influences the viability of the slenderclaw crayfish in the near term and future. Also, considering that the virile crayfish is a larger crayfish, is a strong competitor, and tends to migrate, while the slenderclaw crayfish has low abundance and is a smaller bodied crayfish, it is reasonable to conclude that once the virile crayfish is established at a site, it will out-compete slenderclaw crayfish.

Direct impacts of poor water quality on the slenderclaw crayfish are unknown; however, aquatic macroinvertebrates ( i.e., mayflies, caddisflies, stoneflies) are negatively affected by poor water quality, and this may indirectly impact the slenderclaw crayfish, which likely feeds on them. Degradation of water quality impacts aquatic macroinvertebrates and may even cause stress to individual crayfish (Arthur et al. 1987, p. 328; Devi and Fingerman 1995, p. 749; Rosewarne et al. 2014, p. 69). Although crayfish generally have a higher tolerance to ammonia than some aquatic species ( i.e., mussels), their food source, larval insects, is impacted by ammonia at lower concentrations (Arthur et al. 1987, p. 328). Juvenile slenderclaw crayfish likely feed exclusively on aquatic macroinvertebrates, which are impacted by elevated ammonia and poor water quality.

Within the range of the slenderclaw crayfish, Scarham Creek and Town Creek were identified as impaired waters by the Alabama Department of Environmental Management (ADEM). These creeks were listed in 1996 and 1998, respectively, on Alabama's list of impaired water bodies (list of waterbodies that do not meet established State water quality standards) under section 303(d) of the Clean Water Act (hereafter, “the 303(d) list”) (ADEM 1996, p. 1; ADEM 2001, p. 11). Scarham Creek was placed on the 303(d) list for impacts from pesticides, siltation, ammonia, low dissolved oxygen/organic enrichment, and pathogens from agricultural sources; this section of Scarham Creek stretched 24 mi (39 km) upstream from its confluence with Short Creek to its source (ADEM 2013, p. 1). However, Scarham Creek was removed from Alabama's 303(d) list of impaired waters in 2004, after the total maximum daily loads (TMDLs; maximum amount of a pollutant or pollutants allowed in a water body while still meeting water quality standards) were developed in 2002 (ADEM 2002, p. 5; ADEM 2006, entire). Town Creek was previously listed on the 303(d) list for ammonia and organic enrichment/dissolved oxygen impairments. Although TMDLs have been in development for these issues (ADEM 1996, entire), all of Town Creek is currently on the 303(d) list for mercury contamination due to atmospheric deposition (ADEM 2016a, appendix C). One identified source of wastewater discharge to Town Creek is Hudson Foods near Geraldine, Alabama (ADEM 1996, p. 1).

Pollution from nonpoint sources stemming from agriculture, animal production, and unimproved roads has been documented within the range of the slenderclaw crayfish (Bearden et al. 2017, p. 18). Alabama is ranked third in the United States for broiler (chicken) production (Alabama Poultry Producers 2017, unpaginated), and DeKalb and Marshall Counties are two of the four most active counties in Alabama for poultry farming (Conner 2008, unpaginated). Poultry farms and poultry litter (a mixture of chicken manure, feathers, spilled food, and bedding material that frequently is used to fertilize pastureland or row crops) have been documented to contain nutrients, pesticides, bacteria, heavy metals, and other pathogens (Bolan et al. 2010, pp. 676-683; Stolz et al. 2007, p. 821). A broiler house containing 20,000 birds will produce approximately 150 tons of litter a year (Ritz and Merka 2013, p. 2). Surface-spreading of litter allows runoff from heavy rains to carry nutrients from manure into nearby streams. Poultry litter spreading is a practice that occurs within the Short Creek watershed (Short Creek population of slenderclaw crayfish) (Top of Alabama Regional Council of Governments 2015, p. 8).

During recent survey efforts, water quality was impaired due to nutrients and bacteria within the Short Creek population, and levels of atrazine may be of concern in the watershed (Bearden et al. 2017, p. 32). In Bengis Creek (Town Creek population), lead measurements exceeded the acute and chronic aquatic life criteria set by the U.S. Environmental Protection Agency (EPA) and ADEM (Bearden et al. 2017, p. 32; ADEM 2017, p. 10-7). These criteria are based on levels developed by the EPA and ADEM to protect fish and wildlife (ADEM 2017, entire), and exceedance of these values is likely to harm animal or plant life (EPA 2018b, unpaginated). Elevated ammonia concentrations in Town Creek were also documented and reflected nonpoint source pollution at low-flow and high-flow measurements (Bearden et al. 2017, p. 21). In late summer and fall surveys, potential eutrophication likely stemming from low-water conditions, elevated nutrients, and low dissolved oxygen was documented within both Short and Town Creek watersheds (Bearden et al. 2017, p. 31).

The number of slenderclaw crayfish is currently low, with only two populations and few individuals within each population, which is reflected in the species' low resiliency, redundancy, and representation. The current estimated low abundance (n=32) and genetic drift may negatively affect populations of the slenderclaw crayfish. In general, the fewer populations a species has or the smaller the sizes of those populations, the greater the likelihood of extinction by chance alone (Shaffer and Stein 2000, p. 307). Genetic drift occurs in all species but is more likely to negatively affect populations that have a smaller effective population size (Caughley 1994, pp. 219-220; Huey et al. 2013, p. 10). There are only two populations of the slenderclaw crayfish with limited connectivity between those populations, which may have reduced genetic diversity. However, no testing for genetic drift has been conducted for the slenderclaw crayfish.

In addition to impacting the species individually, it is likely that several of the risk factors are acting synergistically or additively on the species. The combined impact of multiple stressors is likely more harmful than a single stressor acting alone. For example, in the Town Creek watershed, Town Creek was previously listed as an impaired stream due to ammonia and organic enrichment/dissolved oxygen impairments, and recent surveys documented eutrophic conditions of elevated nutrients and low dissolved oxygen. In addition, hydrologic variation and alteration has occurred within the Town Creek watershed as discussed further in the SSA report. Low-water conditions naturally occur in streams where the slenderclaw crayfish occurs, and alteration causing prolonged low-water periods could have a negative impact on the reproductive success of the slenderclaw crayfish. Further, connectivity between Town Creek and Short Creek watersheds is likely low due to Guntersville Lake. The combination of all of these stressors on the sensitive aquatic species in this habitat has probably impacted slenderclaw crayfish, in that only four individuals have been recorded there since 2009.

TMDLs have been developed in Scarham Creek for siltation, ammonia, pathogens, organic enrichment/low dissolved oxygen, and pesticides (ADEM 2002, p. 5). Town Creek is currently on the 303(d) list for mercury contamination due to atmospheric deposition (ADEM 2016a, appendix C). However, a TMDL for organic enrichment/dissolved oxygen has been developed for Town Creek (ADEM 1996, entire). Through the 303(d) program, ADEM provides funding derived under section 319 of the Clean Water Act to improve water quality in the watersheds. In 2014, the Upper Scarham Creek Watershed was selected as a priority by ADEM for the development of a watershed management plan. In Fiscal Year 2016, the DeKalb County Soil and Water Conservation District contracted with ADEM to implement the Upper Scarham Creek Watershed Project using section 319 funding (ADEM 2016b, p. 39).

The U.S. Department of Agriculture's Natural Resources Conservation Service (NRCS) National Water Quality Initiative program identified the Guntersville Lake/Upper Scarham Creek in DeKalb County as an Alabama Priority Watershed in 2015 (NRCS 2017, unpaginated). This watershed is within the historical range of the slenderclaw crayfish. It is recognized as in need of conservation practices, as it was listed on the Alabama 303(d) list as impaired due to organic enrichment/low dissolved oxygen and ammonia as nitrogen (ADEM 2002, p. 4). The National Water Quality Initiative helps farmers, ranchers, and forest landowners improve water quality and aquatic habitats in impaired streams through conservation and management practices. Such practices include controlling and trapping nutrient and manure runoff, and installation of cover crops, filter strips, and terraces.

For the purpose of this assessment, we define viability as the ability of the species to sustain populations in the wild over time. As part of the SSA, to help address uncertainty associated with the degree and extent of potential future stressors and their impacts on the needs of the species, the concepts of resiliency, redundancy, and representation were applied using three plausible future scenarios. We devised these scenarios by identifying information on the following primary stressors that are anticipated to affect the species in the future: Nonnative virile crayfish, hydrological variation (precipitation and water quantity), land-use change, and water quality. However, having determined that the current condition of the slenderclaw crayfish is consistent with that of an endangered species (see Determination of Slenderclaw Crayfish Status, below), the results of the future scenarios are not material to our decision, and therefore, we are not presenting the results in this final rule. Please refer to the proposed listing and designation of critical habitat rule for the slenderclaw crayfish (83 FR 50582; October 9, 2018) and the SSA report (Service 2018, entire) for the full analysis of future conditions and descriptions of the associated scenarios.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the slenderclaw crayfish. Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of an endangered species or a threatened species. The Act defines an endangered species as a species “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as a species “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether a species meets the definition of “endangered species” or “threatened species” because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence.

After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we have determined the slenderclaw crayfish to be endangered throughout all of its range. Our review of the best available information indicates that there are currently two populations of slenderclaw crayfish in low condition occurring across the species' historical range in Alabama. Despite the species being identified at three new sites as reflected by recent increased survey efforts, there is substantial evidence of reduced abundance (current estimate of n=32) and presumed extirpation at four historical sites. In the Short Creek population, 28 slenderclaw crayfish were collected during surveys from 2009 through 2017; in the Town Creek population, only 4 slenderclaw crayfish were collected during this same time period. Further, there is evidence of limited reproduction with only 3 juveniles collected from both populations since 2016. The slenderclaw crayfish exhibits low natural redundancy given its narrow range, but given presumed extirpation of sites within both populations, the species' redundancy is further limited.

Several sources of indirect water quality impacts on both populations have been identified. However, no direct water quality-related impacts are known at this time, and crayfish generally have a higher tolerance to poor water quality conditions than other aquatic species. In addition, currently existing regulatory mechanisms, such as establishing TMDLs, are addressing the effects of poor water quality on the slenderclaw crayfish.

Currently, one of the primary threats to the slenderclaw crayfish is the nonnative virile crayfish. The virile crayfish is a larger crayfish, a strong competitor, and tends to migrate, and has been attributed to declines of other native crayfish species. Considering these characteristics of the virile crayfish and the size (small-bodied) of the slenderclaw crayfish, it is reasonable to infer that once virile crayfish is established at a site it will out-compete slenderclaw crayfish. This may already be the case at the slenderclaw crayfish type locality where virile crayfish were found in recent surveys. At present, the virile crayfish has been reported as occurring at only one site, the type locality, where the slenderclaw crayfish was known to occur. Specifically, the virile crayfish occupies approximately 12.5 river miles (mi) (20.1 river kilometers (km)) at a few sites approximately 7 river mi (11 river km) downstream of current slenderclaw crayfish sites in the Short Creek population (233.6 river mi (375.9 river km)), and, therefore, the virile crayfish is an imminent threat to slenderclaw crayfish in the Short Creek population. Although there are currently no records of the virile crayfish in the Town Creek population (281.7 river mi (453.4 river km)), the virile crayfish is documented in Guntersville Lake, which leads directly into the Town Creek population. Based on the documented past expansion of the virile crayfish (despite some uncertainty and variation in the rate at which it will expand), and documented impacts and declines to other native crayfish species, current invasion and expansion into the slenderclaw crayfish's range in the Town Creek population will occur. Coupled with the current low abundance (n=4) of slenderclaw crayfish in the Town Creek population, the invasion of virile crayfish makes the slenderclaw crayfish at high risk of extirpation in this watershed.

Overall, given the current low resiliency in both populations and the species' limited redundancy, it will be difficult to reestablish an entire population, should it be affected by a catastrophic event, without human intervention, as the connectivity between the two populations is low.

Therefore, the slenderclaw crayfish is currently at risk of extirpation in both populations. Thus, we have determined that the slenderclaw crayfish is currently in danger of extinction throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. We have determined that the slenderclaw crayfish is in danger of extinction throughout all of its range, warranting listing as endangered throughout its range. Accordingly, we did not undertake an analysis of any significant portion of its range. Our determination is consistent with the decision in Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020).

Our review of the best available scientific and commercial information indicates that the slenderclaw crayfish meets the definition of an endangered species. Therefore, in accordance with sections 3(20) and 4(a)(1) of the Act, we add the slenderclaw crayfish as an endangered species to the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h).

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and calls for recovery actions to be carried out for all listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

Recovery planning consists of preparing draft and final recovery plans, beginning with the development of a recovery outline and making it available to the public within 30 days of a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (“downlisting”) or removal from protected status (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website ( http://www.fws.gov/endangered ) or from our Alabama Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration ( e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.

Following publication of this final listing rule, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Alabama will be eligible for Federal funds to implement management actions that promote the protection or recovery of the slenderclaw crayfish. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

Please let us know if you are interested in participating in recovery efforts for the slenderclaw crayfish. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is listed as an endangered or threatened species and with respect to its critical habitat. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

Federal agency actions within the slenderclaw crayfish's habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the U.S. Fish and Wildlife Service and U.S. Forest Service; technical assistance and projects funded through the U.S. Department of Agriculture's NRCS; issuance of permits by the Tennessee Valley Authority for right-of-way stream crossings; issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq. ) permits by the U.S. Army Corps of Engineers; and construction and maintenance of roads or highways by the Federal Highway Administration.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any species listed as an endangered species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a final listing on proposed and ongoing activities within the range of a listed species. Based on the best available information, at this time, we are unable to identify specific activities that would not be considered to result in a violation of section 9 of the Act, because it is likely that site-specific conservation measures may be needed for activities that may directly or indirectly affect the slenderclaw crayfish. Based on the best available information, the following actions may potentially result in a violation of section 9 of the Act or this final rule; this list is not comprehensive:

(1) Unauthorized handling, collecting, possessing, selling, delivering, carrying, or transporting of the slenderclaw crayfish, including interstate transportation across State lines and import or export across international boundaries.

(2) Destruction/alteration of the species' habitat by discharge of fill material, draining, ditching, tiling, pond construction, stream channelization or diversion, or diversion or alteration of surface or ground water flow into or out of the stream ( i.e., due to roads, impoundments, discharge pipes, stormwater detention basins, etc.).

(3) Introduction of nonnative species that compete with or prey upon the slenderclaw crayfish, such as the introduction of nonnative virile crayfish in Alabama.

(4) Modification of the channel or water flow of any stream in which the slenderclaw crayfish is known to occur.

(5) Discharge of chemicals or fill material into any waters in which the slenderclaw crayfish is known to occur.

Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Alabama Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(a) Essential to the conservation of the species, and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary ( i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis ( e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals).

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Designation also does not allow the government or public to access private lands, nor does designation require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the specific features that support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.

Under the second prong of the Act's definition of critical habitat, we may designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. We will determine whether unoccupied areas are essential for the conservation of the species by considering the life-history, status, and conservation needs of the species. This consideration will be further informed by any generalized conservation strategy, criteria, or outline that may have been developed for the species to provide a substantive foundation for identifying which features and specific areas are essential to the conservation of the species and, as a result, the development of the critical habitat designation. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

On August 27, 2019, we published a final rule in the Federal Register (84 FR 45020) to amend our regulations concerning the procedures and criteria we use to designate and revise critical habitat. That rule became effective on September 26, 2019, but, as stated in that rule, the amendments it sets forth apply to “rules for which a proposed rule was published after September 26, 2019.” We published our proposed critical habitat designation for the slenderclaw crayfish on October 9, 2018 (83 FR 50582); therefore, the amendments set forth in the August 27, 2019, final rule (84 FR 45020) do not apply to this final designation of critical habitat for the slenderclaw crayfish.

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. The regulations at 50 CFR 424.02 define “physical or biological features essential to the conservation of the species” as the features that occur in specific areas and that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. For example, physical features might include gravel of a particular size required for spawning, alkali soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic needed to support the life history of the species. In considering whether features are essential to the conservation of the species, the Service may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These include, but are not limited to:

(1) Space for individual and population growth and for normal behavior;

(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;

(3) Cover or shelter;

(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and

(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.

We derive the specific physical or biological features essential for slenderclaw crayfish from studies of this species' and similar crayfish species' habitat, ecology, and life history. The primary habitat elements that influence resiliency of the slenderclaw crayfish include water quantity, water quality, substrate, interstitial space, and habitat connectivity. More detail of the habitat and resource needs are summarized in the Habitat section of the proposed listing designation of critical habitat rule for the slenderclaw crayfish (83 FR 50582; October 9, 2018) and the SSA report. We use the ADEM water quality standards for fish and wildlife criteria to determine the minimum standards of water quality necessary for the slenderclaw crayfish. A full description of the needs of individuals, populations, and the species is available from the SSA report; the resource needs of individuals are summarized below in Table 1.

In summary, we derive the specific physical or biological features essential to the conservation of the slenderclaw crayfish from studies of this species' and similar crayfish species' habitat, ecology, and life history, as described above. Additional information can be found in the SSA report (Service 2019, entire) available on http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069. We have determined that the following physical or biological features are essential to the conservation of the slenderclaw crayfish:

(1) Geomorphically stable, small to medium, flowing streams:

(a) That are typically 19.8 feet (ft) (6 meters (m)) wide or smaller;

(b) With attributes ranging from:

(i) Streams with predominantly large boulders and fractured bedrock, with widths from 16.4 to 19.7 ft (5 to 6 m), low to no turbidity, and depths up to 2.3 ft (0.7 m), to

(ii) Streams dominated by small substrate types with a mix of cobble, gravel, and sand, with widths of approximately 9.8 feet (3 m), low to no turbidity, and depths up to 0.5 feet (0.15 m);

(c) With substrate consisting of boulder and cobble containing abundant interstitial spaces for sheltering and breeding; and

(d) With intact riparian cover to maintain stream morphology and to reduce erosion and sediment inputs.

(2) Seasonal water flows, or a hydrologic flow regime (which includes the severity, frequency, duration, and seasonality of discharge over time), necessary to maintain benthic habitats where the species is found and to maintain connectivity of streams with the floodplain, allowing the exchange of nutrients and sediment for maintenance of the crayfish's habitat and food availability.

(3) Appropriate water and sediment quality (including, but not limited to, conductivity; hardness; turbidity; temperature; pH; and minimal levels of ammonia, heavy metals, pesticides, animal waste products, and nitrogen, phosphorus, and potassium fertilizers) necessary to sustain natural physiological processes for normal behavior, growth, and viability of all life stages.

(4) Prey base of aquatic macroinvertebrates and detritus. Prey items may include, but are not limited to, insect larvae, snails and their eggs, fish and their eggs, and plant and animal detritus.

When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of the slenderclaw crayfish may require special management considerations or protections to reduce the following threats: (1) Impacts from invasive species, including the nonnative virile crayfish; (2) nutrient pollution from agricultural activities that impact water quantity and quality; (3) significant alteration of water quality and water quantity, including conversion of streams to impounded areas; (4) culvert and pipe installation that creates barriers to movement; and (5) other watershed and floodplain disturbances that release sediments or nutrients into the water.

Management activities that could ameliorate these threats include, but are not limited to: Control and removal of introduced invasive species; limiting the spreading of poultry litter to time periods of dry, stable weather conditions; use of best management practices designed to reduce sedimentation, erosion, and bank side destruction; protection of riparian corridors and retention of sufficient canopy cover along banks; moderation of surface and ground water withdrawals to maintain natural flow regimes; and reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water.

As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat.

The current distribution of the slenderclaw crayfish is much reduced from its historical distribution in one (Short Creek watershed) of the two populations. The currently occupied sites in the Short Creek watershed occur in a single tributary (Shoal Creek), and one catastrophic event could impact this entire population. In addition, the nonnative virile crayfish occupies sites within the Short Creek watershed, including the type locality for the slenderclaw crayfish in Short Creek in which the slenderclaw crayfish no longer occurs. We anticipate that recovery will require continued protection of existing populations and habitat, as well as establishing sites in additional streams that more closely approximate its historical distribution in order to ensure there are adequate numbers of crayfish in stable populations and that these populations have multiple sites occurring in at least two streams within each watershed. This goal will help ensure that catastrophic events, such as a chemical spill, cannot simultaneously affect all known populations.

Sources of data for this critical habitat designation include numerous survey reports on streams throughout the species' range and databases maintained by crayfish experts and universities (Bouchard and Hobbs 1976, entire; Bearden 2017, unpublished data; Schuster 2017, unpublished data; Taylor 2017, unpublished data; Service 2018, entire). We have also reviewed available information that pertains to the habitat requirements of this species. Sources of information on habitat requirements include surveys conducted at occupied sites and published in agency reports, and data collected during monitoring efforts.

For locations within the geographic area occupied by the species at the time of listing, we identified stream channels that currently support populations of the slenderclaw crayfish. We defined “current” as stream channels with observations of the species from 2009 to the present. Due to the recent breadth and intensity of survey efforts for the slenderclaw crayfish throughout the historical range of the species, it is reasonable to assume that streams with no positive surveys since 2009 should not be considered occupied for the purpose of our analysis. Within these areas, we delineated critical habitat unit boundaries using the following process:

We evaluated habitat suitability of stream channels within the geographical area occupied at the time of listing, and retained for further consideration those streams that contain one or more of the physical or biological features to support life-history functions essential to conservation of the species. We refined the starting and ending points of units by evaluating the presence or absence of appropriate physical or biological features. We selected the headwaters as upstream cutoff points for each stream and downstream cutoff points that omit areas that are not suitable habitat. For example, the Guntersville Lake Tennessee Valley Authority project boundary was selected as an endpoint for one unit, as there was a change to unsuitable parameters ( e.g., impounded waters).

Based on this analysis, the following streams meet criteria for areas occupied by the species at the time of listing: Bengis Creek, Scarham Creek, Shoal Creek, Short Creek, Town Creek, and Whippoorwill Creek (see Unit Descriptions, below). This list does not include all stream segments known to have been occupied by the species historically; rather, it includes only the occupied stream segments within the historical range that have also retained one or more of the physical or biological features that will allow for the maintenance and expansion of existing populations.

To consider for designation areas not occupied by the species at the time of listing, we must demonstrate that these areas are essential for the conservation of the species. To determine if these areas are essential for the conservation of the slenderclaw crayfish, we considered the life history, status, habitat elements, and conservation needs of the species such as:

(1) The importance of the stream to the overall status of the species, the importance of the stream to the prevention of extinction, and the stream's contribution to future recovery of the slenderclaw crayfish;

(2) whether the area is and could be maintained or restored to contain the necessary habitat (water quantity, substrate, interstitial space, and connectivity) to support the slenderclaw crayfish;

(3) whether the site provides connectivity between occupied sites for genetic exchange;

(4) whether a population of the species could be reestablished in the location; and

(5) whether the virile crayfish is currently present in the stream.

For the one subunit containing areas outside the geographical area occupied by the species at the time of listing, we delineated critical habitat unit boundaries by evaluating stream segments not known to have been occupied at listing ( i.e., outside of the geographical area occupied by the species) but that are within the historical range of the species to determine if they are essential for the survival and recovery of the species. Essential areas are those that:

(a) Expand the geographical distribution within areas not occupied at the time of listing across the historical range of the species;

(b) Were determined to be of suitable habitat and contain the primary habitat elements (water quantity, substrate, interstitial space, and connectivity) that support the viability of the slenderclaw crayfish; and

(c) Are connected to other occupied areas, which will enhance genetic exchange between populations.

Based on this analysis, Scarham-Laurel Creek was identified as meeting the criteria for areas outside the geographical area occupied at the time of listing that are essential for the conservation of the species (see Subunit 2b unit description below).

When determining critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for slenderclaw crayfish. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in the rule and are not included for designation as critical habitat. Therefore, a Federal action involving these lands would not trigger section 7 consultation under the Act with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.

We are designating critical habitat in areas within the geographical area occupied by the species at the time of listing. We also are designating areas outside the geographical area occupied by the species at the time of listing that were historically occupied but are presently unoccupied, because we have determined that such areas are essential for the conservation of the species (see description of Subunit 2b below for explanation).

The two occupied units were designated based on one or more of the elements of physical or biological features being present to support slenderclaw crayfish life processes. Some stream segments within the units contained all of the identified elements of physical or biological features and supported multiple life processes. Some stream segments contained only some elements of the physical or biological features necessary to support the slenderclaw crayfish's particular use of that habitat.

The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. We include more detailed information on the boundaries of the critical habitat designation in the discussion of individual units below. We will make the coordinates or plot points or both on which each map is based available to the public on http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069, and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT , above).

We are designating approximately 78 river mi (126 river km) in two units as critical habitat for the slenderclaw crayfish. The critical habitat areas, described below, constitute our current best assessment of areas that meet the definition of critical habitat for the slenderclaw crayfish. The two units are: (1) Town Creek Unit, and (2) Short Creek Unit. Unit 2 is subdivided into two subunits: (2a) Shoal Creek and Short Creek subunit, and (2b) Scarham-Laurel Creek subunit. Table 2 shows the name, occupancy of the unit, land ownership of the riparian areas surrounding the units, and approximate river miles of the designated critical habitat units for the slenderclaw crayfish.

The reef fish fishery of the Gulf is managed under the Fishery Management Plan (FMP) for Reef Fish Resources of the Gulf of Mexico (Reef Fish FMP), prepared by the Gulf of Mexico Fishery Management Council (Gulf Council). The CMP fishery is managed under the FMP for CMP Resources in the Gulf of Mexico and Atlantic Region (CMP FMP), prepared by the Gulf Council and South Atlantic Fishery Management Council. Both FMPs are implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

Amendment 26 to the Reef Fish FMP established an IFQ program for the commercial red snapper component of the Gulf reef fish fishery (71 FR 67447; November 22, 2006). Amendment 29 to the Reef Fish FMP established an IFQ program for the commercial grouper and tilefish components of the Gulf reef fish fishery (74 FR 44732; August 31, 2009). Regulations implementing these IFQ programs (50 CFR 622.21 and 622.22) require that IFQ participants have access to a computer and the internet and that they conduct administrative functions associated with the IFQ program, e.g., landing transactions, online. However, these regulations also specify that during catastrophic conditions, as determined by the RA, the RA may authorize IFQ participants to use paper-based forms to complete administrative functions for the duration of the catastrophic conditions. The RA must determine that catastrophic conditions exist, specify the duration of the catastrophic conditions, and specify which participants or geographic areas are deemed affected.

The Generic Dealer Amendment established Federal dealer reporting requirements for federally permitted dealers in the Gulf and South Atlantic (79 FR 19490; April 9, 2014). The Gulf For-Hire Reporting Amendment implemented reporting requirements for Gulf reef fish and CMP owners and operators of for-hire vessels (85 FR 44005; July 21, 2020). Regulations implementing these dealer reporting requirements (50 CFR 622.5) and for-hire vessel reporting requirements (50 CFR 622.26 and 622.374) state that dealers must submit electronic reports and that Gulf reef fish and CMP vessels with the applicable charter vessel/headboat permit must submit electronic fishing reports of all fish harvested and discarded. However, these regulations also specify that during catastrophic conditions, as determined by the RA, the RA may waive or modify the reporting time requirements for dealers and for-hire vessels for the duration of the catastrophic conditions.

Hurricane Ida made landfall in the U.S. near Port Fourchon, Louisiana, in the Gulf as a Category 4 hurricane on August 29, 2021. Strong winds and flooding from this hurricane impacted communities throughout coastal Louisiana. This resulted in power outages and damage to homes, businesses, and infrastructure. As a result, the RA has determined that catastrophic conditions exist in the Gulf for the Louisiana parishes of Saint Tammany, Orleans, Saint Bernard, Plaquemines, Jefferson, Saint Charles, Lafourche, Terrebonne, Saint Mary, Iberia, Vermilion, and Cameron.

Through this temporary rule, the RA is authorizing Federal dealers and Federal for-hire operators in these affected areas to delay reporting of trip tickets and for-hire logbooks to NMFS, and authorizing IFQ participants in this affected area to use paper-based forms, from September 2, 2021, through October 8, 2021. NMFS will provide additional notification to affected dealers via NOAA Weather Radio, Fishery Bulletins, and other appropriate means. NMFS will continue to monitor and re-evaluate the areas and duration of the catastrophic conditions, as necessary.

Dealers may delay electronic reporting of trip tickets to NMFS during catastrophic conditions. Dealers are to report all landings to NMFS as soon as possible. Assistance for Federal dealers in affected area is available from the NMFS Fisheries Monitoring Branch at 1-305-361-4581. NMFS previously provided IFQ dealers with the necessary paper forms and instructions for submission in the event of catastrophic conditions. Paper forms are also available from the RA upon request. The electronic systems for submitting information to NMFS will continue to be available to all dealers, and dealers in the affected area are encouraged to continue using these systems, if accessible.

Federal for-hire operators may delay electronic reporting of logbooks to NMFS during catastrophic conditions. Federal for-hire operators are to report all landings to NMFS as soon as possible. Assistance for Federal for-hire operators in affected area is available from the NMFS Southeast For-Hire Integrated Electronic Reporting Program at 1-833-707-1632. The electronic systems for submitting information to NMFS will continue to be available to all Federal for-hire operators, and for-hire operators are encouraged to continue using the these systems, if accessible.

The administrative program functions available to IFQ participants in the area affected by catastrophic conditions will be limited under the paper-based system. There will be no mechanism for transfers of IFQ shares or allocation under the paper-based system in effect during catastrophic conditions. Assistance in complying with the requirements of the paper-based system will be available via the NMFS Catch Share Support line, 1-866-425-7627 Monday through Friday, between 8 a.m. and 4:30 p.m., Eastern Time.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is consistent with the regulations in 50 CFR 622.5(c)(1)(iii), 622.21(a)(3)(iii), and 622.22(a)(3)(iii), which were issued pursuant to section 304(b) of the Magnuson-Stevens Act, and are exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment are unnecessary and contrary to the public interest. Such procedures are unnecessary because the final rules implementing the Gulf IFQ programs, the Gulf and South Atlantic Federal dealer reporting requirements, and Gulf for-hire vessel reporting requirements have already been subject to notice and public comment. These rules authorize the RA to determine when catastrophic conditions exist, and which participants or geographic areas are deemed affected by catastrophic conditions. The final rules also authorize the RA to provide timely notice to affected participants via publication of notification in the Federal Register , NOAA Weather Radio, Fishery Bulletins, and other appropriate means. All that remains is to notify the public that catastrophic conditions exist, that IFQ participants may use paper forms, and that Federal dealers and Gulf for-hire permit holders may submit delayed reports. Such procedures are also contrary to the public interest because of the need to immediately implement this action because affected dealers continue to receive these species in the affected area and need a means of completing their landing transactions. With the power outages and damages to infrastructure that have occurred in the affected area due to Hurricane Ida, numerous businesses are unable to complete landings transactions, fishing reports, and dealer reports electronically. In order to continue with their businesses, IFQ participants need to be aware they can report using the paper forms, and Federal dealers and Gulf for-permit holders need to be aware that they can delay reporting.

For the aforementioned reasons, there is good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).