I. Discussion

On February 13, 2023 (88 FR 9106), the NRC published a direct final rule amending its regulations in part 72 of title 10 of the Code of Federal Regulations (10 CFR) to revise the Holtec International HI-STORM 100 Cask System listing within the “List of approved spent fuel storage casks” to renew the initial certificate (Amendment No. 0) and Amendment Nos. 1 through 15 to Certificate of Compliance No. 1014. The renewal of the initial certificate and Amendment Nos. 1 through 15 for 40 years revised the certificate of compliance's conditions and technical specifications to address aging management activities related to the structures, systems, and components important to safety of the dry storage system to ensure that these will maintain their intended functions during the period of extended storage operations.

In the direct final rule, published on February 13, 2023, the NRC stated that if no significant adverse comments were received, the direct final rule would become effective on May 1, 2023. The comment period closed on March 15, 2023; however, on March 22, 2023, in response to requests for an extension of the public comment period, the NRC reopened the public comment period to allow the public more time to comment on the action (88 FR 17164). The re-opened comment period closed on April 14, 2023. On April 26, 2023 (88 FR 25271), the NRC published a document that indefinitely delayed the effective date of the direct final rule to provide the NRC staff sufficient time to evaluate and respond to public comments.

The NRC received eight comment submissions on the companion proposed rule published on February 13, 2023 (88 FR 9195). The comments were submitted by four individuals, and a joint comment was provided on behalf of five nongovernmental organizations. An electronic copy of the comment submissions can be obtained from the Federal rulemaking website https://www.regulations.gov under Docket ID NRC-2022-0109. The comments are also available in ADAMS using the Accession numbers shown in the table in the “Availability of Documents” section of this document.

The NRC binned the comments by topic and evaluated the comments using the criteria stated in the direct final rule. The NRC is providing a response to the comments in section II. of this document, “Public Comment Responses.” Some comments were not unique to this action, in that they raised issues the NRC has addressed in previous spent fuel storage actions, ( e.g., guidance for evaluating the aging management programs). Other comments were on topics that are outside of the scope of this rulemaking, such as transportation, cask design bases, and storage at a consolidated interim storage facility. In addition, some comments pertain to the regulations in 10 CFR part 72 rather than the safety of the Holtec International HI-STORM 100 Cask System design and are also outside of the scope of this rulemaking.

For ease of reference, the criteria for a significant adverse comment are repeated here:

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC to make a change (other than editorial) to the rule, certificate of compliance, or technical specifications.

The NRC evaluated the comments against these criteria and determined that the public comments received on this action did not warrant any additions or changes (other than editorial) to the final rule, the certificates of compliance, or the accompanying technical specifications. The NRC is not making substantive changes to the rule; it is apparent that the rule is effective and acceptable as proposed, without the need for a substantive change or addition. The comments did not raise a relevant issue that was not previously addressed or considered by the NRC, and the comments did not cause the NRC to either: (1) reevaluate or reconsider its position, or (2) conduct additional analyses.

The NRC has determined that none of the comments were significant adverse comments. Therefore, the NRC is correcting and confirming the direct final rule amending the listing for Certificate of Compliance No. 1014, the Holtec International HI-STORM 100 Cask System design, to renew the NRC's approval of the certificate of compliance and is announcing the effective date.

Comment: The joint comment raised concerns regarding the transport of storage canisters under 10 CFR part 71.

Response: This rulemaking only applies to the use of the Holtec International HI-STORM 100 Cask System design in an independent spent fuel storage installation at power reactor sites. The use of a component of the Holtec International HI-STORM 100 Cask System design—the multi-purpose canister—in transportation, would fall under NRC's regulations in 10 CFR part 71, which is outside of the scope of this rulemaking. Allowing the Holtec International HI-STORM 100 Cask System design to be used for the storage of spent fuel under the general license issued by 10 CFR 72.210 neither affects nor contributes to the evaluation of its use during transportation.

Comment: The joint comment re-submitted a comment that had previously been submitted to the NRC on the Interim Storage Partners Consolidated Interim Storage Facility Project Draft Environmental Impact Statement regarding the need to consider the foreseeable environmental impacts of the entire project, including transporting spent nuclear fuel to and from the proposed Consolidated Interim Storage Facility in Texas.

Response: This rulemaking action only approves the use of the Holtec International HI-STORM 100 Cask System design under the renewed Certificate of Compliance No. 1014 for the initial certificate (Amendment No. 0) and Amendment Nos. 1 through 15 under the general license issued by 10 CFR 72.210, which involves the storage of spent nuclear fuel in an independent spent fuel storage installation at power reactor sites. This does not include the use of the Holtec International HI-STORM 100 Cask System design at a consolidated interim storage facility. This comment is outside the scope of this rulemaking. Additionally, the use of a Holtec International HI-STORM 100 Cask System design at a consolidated interim storage facility would be authorized under a specific license and, before such approval would be granted, there would be an opportunity to request a hearing and to petition to intervene.

Comment: Three comments raised concerns regarding the design bases for the Holtec International HI-STORM 100 Cask System design.

Response: Pursuant to 10 CFR part 72, the design bases for a cask system design include reference bounds for the design and analyses of postulated accidents caused by severe natural events and severe human-induced events. The renewal of the Holtec International HI-STORM 100 Cask System design does not involve reevaluation of the approved design bases, changes to the approved design bases, nor changes to the fabrication of the cask system. Rather, the renewal requires aging management programs to ensure that structures, systems, and components important to safety will continue to perform their intended functions, as designed, during the period of extended operation, thus maintaining the approved design bases during the period of extended operation. The issue of approved design bases is outside of the scope of this rulemaking.

Comment: The joint comment objected to the use of the direct final rule process by the NRC and requested the NRC withdraw the direct final rule. The comment stated that the direct final rule process was not appropriate because the rule appears to be controversial and because the process appears to violate the National Environmental Policy Act of 1969 and the Administrative Procedure Act (APA). The comment noted that the direct final rule does not fall within the good cause exception in 10 CFR 2.804(d).

Response: The NRC disagrees with this comment. Direct final rulemaking  1 is a process for expediting the issuance of noncontroversial rules and is a variation on section 553 notice-and-comment rulemaking under the APA. The NRC issued a direct final rule and a companion proposed rule in the same issue of the Federal Register and requested public comment. In the NRC's description of the direct final rulemaking process, the NRC explains that a direct final rule, while not explicitly delineated by the APA, does comply with the APA and includes all of the essential elements of rulemaking required by the APA. In this rulemaking, the NRC has provided notice and opportunity for comment; a statement of basis and purpose; and publication of the rule not less than 30 days prior to its effective date (see, https://www.nrc.gov/about-nrc/regulatory/rulemaking/rulemaking-process/direct-final-rule.html ).

The NRC's requirements at 10 CFR part 72 currently list 15 approved certificates of compliance for spent fuel storage casks. NRC has conducted rulemaking to renew six of these certificates of compliance. All six certificate of compliance renewals included aging management programs and involved 40-year terms. The Agency considers these prior rulemaking actions to be non-controversial because the NRC either did not receive any comments opposing the renewals or did not receive any significant adverse comments. The NRC's decision to use the direct final rulemaking process for the renewal of Certificate of Compliance No. 1014 (Holtec International HI-STORM 100 Cask System design) was based on this experience.

Additionally, this rulemaking did adhere to the requirements of the National Environmental Policy Act of 1969. In the direct final rule, the NRC published an environmental assessment and a final finding of no significant impact. The NRC previously considered the impacts from the continued storage of spent fuel, including in the Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel: Final Report (NUREG-2157, Volumes 1 and 2) (2014).

Comment: One commenter requested the NRC make all the renewed amendments expire on the same day. The commenter noted the expiration dates for the early certificates ( i.e., the initial certificate (Amendment No. 0) and Amendment Nos. 1 through 6) have an expiration date of June 1, 2020; however, the later Amendment certificates have an expiration date of May 31, 2020.

Response: The NRC agrees with this comment regarding an editorial issue. This change has no substantive effect on the requirements; because this comment is limited to editorial changes that do not affect the renewal of the certificate of compliance, it is not considered to be a significant adverse comment. The NRC has made editorial corrections to the certificates of compliance in response to this comment.

Comment: The NRC received two comments on the topic of NRC's generic technical basis for canister cracking, the canister aging management program, and the need for periodic reviews and updates to the aging management programs based on new information from research and operating experience. The NRC also received a comment stating that NRC should track the U.S. Department of Energy's (DOE's) research efforts in this area and that the DOE's ongoing research does not support the NRC conclusions in its Safety Evaluation Report. This comment also noted that comparing the applicant's aging management program elements to program elements developed by industry does not constitute sufficient due diligence by NRC.

Response: The NRC previously considered and addressed these concerns during the development of its general technical basis for canister aging management. The NRC established a generic technical basis for the safety review of storage renewal applications through guidance in NUREG-2214, “Managing Aging Processes in Storage (MAPS) Report.” NUREG-2214 establishes a generic technical basis in terms of the evaluation of (1) aging mechanisms and effects that could affect the ability of structures, systems, and components important to safety to fulfill their safety functions in the period of extended operation ( i.e., credible aging mechanisms and effects) and (2) aging management approaches to address credible aging effects, including examples of aging management programs that are considered generically acceptable to address the credible aging effects to ensure that the design bases will be maintained in the period of extended operation.

The NRC sought public input during development of NUREG-2214 and related guidance. The NRC responded to the public comments on the draft guidance and finalized the guidance after considering the comments provided by the public. The NRC issued its responses at the time it announced the issuance of NUREG-2214 (84 FR 39022; August 8, 2019), NUREG-1927, Revision 1, “Standard Review Plan for Renewal of Specific Licenses and Certificates of Compliance for Dry Storage of Spent Nuclear Fuel” (81 FR 44054; July 6, 2016), and NUREG-2224, “Dry Storage and Transportation of High Burnup Spent Nuclear Fuel” (85 FR 77267; December 1, 2020). The comments submitted on this rulemaking did not provide new information that was not previously considered during the development of this NRC guidance.

The NRC disagrees with the commenter's assertion about the significance of ongoing research and the extent to which it supports or contradicts NRC staff conclusions. This ongoing research is compatible with the NRC's conclusions in the NRC's Safety Evaluation Report. The NRC has conducted and continues to conduct research associated with stress corrosion cracking and coordinates its research efforts with DOE in this area. In addition, the NRC collaborates with DOE and national counterparts, consensus committees, industry, and international partners to share research, knowledge, and operating experience related to degradation and aging of cask systems. The NRC considers this pool of information in its regulatory framework for spent fuel storage.

The NRC recognizes that there will be new information gained in the period of extended operation, including operating experience and findings from research and development. Therefore, as described in NUREG-1927, NUREG-2214, and Regulatory Guide 3.76, “Implementation of Aging Management Requirements for Spent Fuel Storage Renewals” (86 FR 38506; July 21, 2021), aging management programs include learning aspects designed to appropriately address and respond to new information. These learning programmatic features are called “tollgates,” which offer a structured approach for: (1) periodically reviewing site-specific and industrywide operating experience and data from applicable research and industry initiatives at specific times during the period of extended operation; and (2) performing a safety assessment that confirms the program's effectiveness or otherwise identifies a need to enhance or modify the program in a timely manner to address any emerging aging issues.

As aging management inspections of canisters are performed at independent spent fuel storage installations, licensees and certificate of compliance holders will upload the inspection results to the Independent Spent Fuel Storage Installation Aging Management Institute of Nuclear Power Operations Database (AMID), and this operating experience will be shared across the industry through licensee access to this database by the independent spent fuel storage installation sites and by certificate of compliance holders. The implementation of tollgate assessments and use of AMID provides reasonable assurance that the aging management programs will continue to effectively manage aging effects during the period of extended operation.

The NRC disagrees with the commenter's statement regarding the comparison of the applicant's aging management program elements to program elements developed by industry. During the NRC's review of Holtec International's renewal application for the HI-STORM 100 Cask System design, the NRC evaluated Holtec International's technical basis for its aging management review and aging management programs and compared it to the generic technical basis in NUREG-2214. The generic technical basis in NUREG-2214 was developed by the NRC, not by the industry. The guidance in NUREG-2214 provides examples of aging management programs that are considered generically acceptable to address the credible aging mechanisms evaluated in the guidance to ensure that the design bases of the cask system will be maintained in the period of extended operation. The NRC found the Holtec International aging management program acceptable. The NRC Safety Evaluation Report documents the consistency between the applicant's canister aging management program and the NUREG-2214 canister aging management program.

Comment: The NRC received two comments regarding scratching and cracking of canisters. The first comment, from the joint comments, stated that NRC has not reviewed the long-term impact of the scraping, gouging, and scratching of canisters when they are loaded into the casks, including the potential for increased and accelerated corrosion. The second comment noted that the Holtec International HI-STORM 100 Cask System design above ground system may cause canisters to scratch and scrape against the carbon steel vertical channels in the overpack cask, leading to potential initiation of carbon‐induced pit corrosion cracking and a serious accelerated canister degradation condition.

Response: The comments on the topic of scratching and cracking of canisters do not introduce new information that was not already considered during the NRC's development of NUREG-2214 and during the review of Holtec International's renewal application for the Holtec HI-STORM 100 Cask System design. Welded stainless steel dry storage canisters, like those used in the HI-STORM 100 Cask System design, may contact dissimilar metal surfaces, and may get scraped, scratched, or gouged during handling and loading into the storage overpack. During the development of NUREG-2214, the NRC considered these potential effects and the potential for handling practices to result in the contact and transfer of carbon steel onto the surface of the stainless-steel canister.

NUREG-2214 identifies stress corrosion cracking as a credible aging effect for canisters and includes an aging management program for canisters to identify and manage localized corrosion (a potential precursor to stress corrosion cracking) and stress corrosion cracking. NUREG-2214 notes the potential for handling practices to result in contact and transfer of iron ( i.e., carbon steel) onto the stainless-steel canister surface, which can create localized corrosion. The NUREG-2214 canister aging management program addresses aging effects and provides reasonable assurance that aging associated with any initial defects, scrapes, or effects of dissimilar materials being in contact will not compromise the intended functions of the canister during the period of extended operation.

NUREG-2214 provides examples of aging management programs that the NRC considers as being generically acceptable to address those credible aging mechanisms evaluated in the guidance to ensure that the design bases of dry storage systems will be maintained. In its review of the renewal application for the Holtec International HI-STORM 100 Cask System design, the NRC staff evaluated Holtec International's technical basis for its aging management review and aging management programs for the Holtec International HI-STORM 100 Cask System design and compared it to the generic technical basis in NUREG-2214. The NRC Safety Evaluation Report documents the consistency between the applicant's canister aging management program and the NUREG-2214 canister aging management program. Consistent with the NUREG-2214 canister aging management program, the Holtec International HI-STORM 100 Cask System design canister aging management program includes inspections of canister surfaces to identify the presence of red-orange corrosion deposits that may indicate iron transfer onto the stainless-steel canister surface. Any areas of corrosion that are found and identified are subject to additional examination and evaluation.

Additionally, the Holtec International HI-STORM 100 Cask System design canister aging management program includes criteria to inspect those canisters that are most susceptible to degradation. The aging management program for the Holtec International HI-STORM 100 Cask System design considers the susceptibility criteria in Electric Power Research Institute (EPRI) TR-3002005371, “Susceptibility Assessment Criteria for Chloride-Induced Stress Corrosion Cracking (CISCC) of Welded Stainless-Steel Canisters for Dry Cask Storage Systems” (referenced also in NUREG-2214). The EPRI report identifies areas of “mechanical damage ( e.g., gouges)” and “scraping during handling” as being the most susceptible to aging. The concerns expressed in the comments ( i.e., long-term effects of any scraping, gouging, and scratching of canisters or contact between dissimilar materials when canisters are loaded into the storage overpack including the potential for increased and accelerated corrosion) are addressed in the canister aging management program.

Comment: The joint comment expressed concern with radiation effects and dose limits.

Response: This comment raises issues that are outside of the scope of this rulemaking. The NRC establishes safety standards for protection against radiation, including public dose limits, in 10 CFR part 20, “Standards for Protection against Radiation.” The regulations in 10 CFR part 72 also include dose limits for spent fuel storage. The current requirements in 10 CFR parts 20 and 72 are protective of public health and safety and the environment.

The documents identified in this table are available to interested persons through one or more of the following methods, as indicated.

The direct final rule published on February 13, 2023 (88 FR 9106), which was delayed indefinitely on April 26, 2023 (88 FR 25271), is confirmed. The direct final rule is effective on August 2, 2023, and the following correction is effective August 2, 2023.

On November 29, 2022, SBA amended its regulations to establish a certification program for Veteran-Owned Small Businesses (VOSB) and Service-Disabled Veteran-Owned Small Businesses (SDVOSB) to implement section 862 of the National Defense Authorization Act for Fiscal Year 2021, Public Law 116-283, 128 Stat. 3292 (January 1, 2021). 87 FR 73400. This document is making the following corrections to the final regulations:

In the final rule at § 128.102, SBA incorrectly defined “Applicant” and “Service-disabled veteran.” The definition of “Applicant” is revised to reference Veteran Small Business Certification Program (VetCert) instead of the SBA's self-certification program and removes “or a valid disability determination from the Department of Defense” as proof of service-disabled veteran status from the definition of “Service-disabled veteran.” By law, SBA is required to verify the status of a veteran or service-disabled veteran with the Department of Veteran Affairs and cannot accept documentation from the Department of Defense as evidence of service-disabled veteran status.

The final rule at § 128.302(c) establishes that SBA may request additional documentation at any time during the eligibility determination process and that an applicant's failure to respond is grounds for denial. If SBA requests additional documentation which the applicant fails to submit in a timely manner or the information is incomplete, that applicant has not met its burden of proof. SBA inadvertently omitted the process by which SBA may deny certification. In such cases, SBA may make an adverse inference that missing information would result in a finding of ineligibility and may deny certification. While adverse inference is currently used by VetCert and SBA's other contracting certification programs, the final rule failed to adequately describe the process in § 128.302(c).

SBA amends § 128.401(a) to clarify that a firm must be certified at the time of offer on a VOSB or SDVOSB contract. SBA also corrects internal citations in the joint venture regulations at § 128.402 including paragraph (c)(7); paragraph (e)(2)(i)(B); paragraph (i)(2); and paragraph (j)(1), (2), and (3). SBA also revises § 128.402(d)(2) to correct a formatting issue with the word “protégé.”

The final rule also amended part 134, subpart J, so that all VOSB and SDVOSB status protests are heard by SBA's Office of Hearing and Appeals (OHA). This correction makes several revisions to subpart J. First, § 134.1005(a)(2) failed to include a sentence which addresses specificity requirements that is included in other SBA contracting programs and previously used by SBA's SDVOSB self-certification program in part 125. This rule adds back that omitted sentence to § 134.1005(a)(2). Second, the final rule inadvertently retained language from previous versions of § 134.1007(j)(1) and (2). SBA corrects § 134.1007(j)(1) to remove references to the outdated process for VOSB and SDVOSB status protests. SBA also amends the effects of a decision in § 134.1007(j)(2) because the final rule included the previous approach used for OHA appeals of VA contracts. This approach is contrary to SBA's other contracting programs and inconsistent with SBA's intent for VetCert status protest. Accordingly, § 134.1007(j)(2) is amended so that, when an ineligible firm has been awarded a contract, the agency shall terminate the contract unless the contracting officer has made a written determination that termination is not in the best interests of the Government.

Accordingly, 13 CFR parts 128 and 134 are corrected by making the following correcting amendments:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model BD-700-1A10 and -1A11 airplanes. The NPRM published in the Federal Register on February 27, 2023 (88 FR 12276). The NPRM was prompted by AD CF-2022-15, dated April 7, 2022, issued by Transport Canada, which is the aviation authority for Canada (referred to after this as the MCAI). The MCAI states that during a design review, it was discovered that three candidate certification maintenance requirements (CCMRs) which were dispositioned as maintenance review board report (MRBR) tasks had reached or exceeded the limit for escalation and that exceeding the CCMR limitations could result in unsafe conditions. The MCAI also states that Bombardier issued certification maintenance requirements (CMRs) to prevent escalation and reduce the interval, as applicable, for these tasks, which consist of a functional test of the landing-gear emergency extension; an operational test of the brake shutoff valve; and a visual check of the passenger-door vent-flap mechanism.

In the NPRM, the FAA proposed to require revising the existing maintenance or inspection program as applicable to incorporate more restrictive airworthiness limitations. The FAA is issuing this AD to address the following unsafe conditions:

• Dormant failure of the landing gear emergency extension system, which could lead to failure to extend the landing gear when normal gear extension has failed. This unsafe condition, if not addressed, could result in an annunciated failure to extend both main landing gears or all landing gears.

• Dormant failure of the brake shut off valve in the open state. This unsafe condition, if not addressed, could result in uncommanded braking during takeoff.

• Dormant failure of the vent flap assembly where it fails in the closed position, which could result in the failure to prevent the initiation of cabin pressurization when the passenger door is not fully closed, latched and locked. This unsafe condition, if not addressed, could result in the passenger door opening under pressure on ground or during flight.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0169.

The FAA received comments from an individual who supported the NPRM without change.

The FAA received additional comments from NetJets. The following presents the comments received on the NPRM and the FAA's response to each comment.

NetJets requested that the FAA clarify the repetitive intervals for the CMR tasks after initial accomplishment. NetJets pointed to the language in paragraph B of Transport Canada AD CF-2022-15, which states that after doing the initial actions at the time specified in Table 1 of Transport Canada AD CF-2022-15 (similar to Figure 1 to paragraph (g) of this AD), accomplishing the CMR tasks are to be done at the intervals specified in the applicable TLMC manual identified in Table 2 of the Transport Canada AD CF-2022-15 (similar to Figure 2 to paragraph (g) of this AD).

The FAA agrees that the repetitive interval is not specified in this AD; however, operators can find this information in the corresponding TLMC as identified in Figure 2 to paragraph (g) of this AD. Although Transport Canada AD CF-2022-15 requires both revising the maintenance program to include limitations, and doing certain repetitive actions and/or maintaining CDCCLs, this AD only requires the revision of the maintenance program. Requiring a revision of the maintenance program rather than requiring individual repetitive actions or maintaining CDCCLs requires operators to record AD compliance only at the time the revision to the program is made. Repetitive actions or maintaining the CDCCLs specified in the airworthiness limitations must be complied with in accordance with 14 CFR 91.403(c). This AD has not been changed in this regard.

NetJets requested clarification on initial compliance times for airplanes having more than 1,550 flight hours but have not previously accomplished the specific CMR or associated airplane maintenance manual (AMM) task.

The FAA agrees to clarify. For an airplane that has more than 1,550 flight hours, but has not previously accomplished an associated task, the initial compliance time is within 30 days after the effective date of this AD. Paragraph (g) of this AD specifies the initial compliance time is within the applicable time specified in Figure 1 to paragraph (g) of this AD, or within 30 days after the effective date of this AD, whichever occurs later. For example, for task 32-34-00-101, an airplane that has more than 1,550 flight hours is beyond the initial compliance time specified in Figure 1 to paragraph (g) of the AD, so the “within 30 days after the effective date of this AD” would come later. This AD has not been changed in this regard.

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

The FAA reviewed the following AMM tasks from Bombardier.

• Tasks 32-34-00-101, “Functional Test of the Landing-Gear Emergency Extension;” 32-43-25-101, “Operational Test of the Brake Shutoff Valve;” and 52-11-00-106, “Visual Check of the Passenger-Door Vent-Flap Mechanism;” of Part 2, “Airworthiness Limitations,” of the Bombardier Global Express Time Limits/Maintenance Checks (TLMC), Publication No. BD-700 TLMC, Revision 34, dated March 1, 2022. (For obtaining the tasks for Bombardier Global Express TLMC, Publication No. BD-700 TLMC, use Document Identification No. GL 700 TLMC.)

• Tasks 32-34-00-101, “Functional Test of the Landing-Gear Emergency Extension;” 32-43-25-101, “Operational Test of the Brake Shutoff Valve;” and 52-11-00-101, “Visual Check of the Passenger-Door Vent-Flap Mechanism;” of Part 2, “Airworthiness Limitations,” of the Bombardier Global Express XRS TLMC, Publication No. BD-700 XRS TLMC, Revision 21, dated March 1, 2022. (For obtaining the tasks for Bombardier Global Express XRS TLMC, Publication No. BD-700 XRS TLMC, use Document Identification No. GL XRS TLMC.)

• Tasks 32-34-00-101, “Functional Test of the Landing-Gear Emergency Extension;” 32-43-25-101, “Operational Test of the Brake Shutoff Valve;” and 52-11-00-106, “Visual Check of the Passenger-Door Vent-Flap Mechanism;” of Part 2, “Airworthiness Limitations,” of the Bombardier Global 5000 TLMC, Publication No. BD-700 TLMC, Revision 25, dated March 1, 2022. (For obtaining the tasks for Bombardier Global 5000 TLMC, Publication No. BD-700 TLMC, use Document Identification No. GL 5000 TLMC.)

• Tasks 32-34-00-101, “Functional Test of the Landing-Gear Emergency Extension;” 32-43-25-101, “Operational Test of the Brake Shutoff Valve;” and 52-11-00-106, “Visual Check of the Passenger-Door Vent-Flap Mechanism;” of Part 2, “Airworthiness Limitations,” of the Bombardier Global 5000 Featuring Global Vision Flight Deck (GVFD) TLMC, Publication No. GL 5000 GVFD TLMC, Revision 15, dated March 1, 2022. (For obtaining the tasks for Bombardier Global 5000 Featuring GVFD TLMC, Publication No. GL 5000 GVFD TLMC, use Document Identification No. GL 5000 GVFD TLMC.)

• Tasks 32-34-00-101, “Functional Test of the Landing-Gear Emergency Extension;” 32-43-25-101, “Operational Test of the Brake Shutoff Valve;” and 52-11-00-106, “Visual Check of the Passenger-Door Vent-Flap Mechanism;” of Part 2, “Airworthiness Limitations,” of the Bombardier Global 6000 TLMC, Publication No. GL 6000 TLMC, Revision 15, dated March 1, 2022. (For obtaining the tasks for Bombardier Global 6000 TLMC, Publication No. GL 6000 TLMC, use Document Identification No. GL 6000 TLMC.)

This service information specifies more restrictive airworthiness limitations for CMRs. These documents are distinct since they apply to different airplane models in different configurations.

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 estimates that this AD, if adopted as proposed, would affect 413 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the agency estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A350-941 and -1041 airplanes. The NPRM published in the Federal Register on April 14, 2023 (88 FR 22923). The NPRM was prompted by AD 2023-0004, dated January 6, 2023, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2023-0004) (also referred to as the MCAI). The MCAI states that new or more restrictive airworthiness limitations are necessary.

EASA AD 2023-0004 specifies that it requires tasks (limitations) already in Airbus A350 Airworthiness Limitations Section (ALS), Part 2, Revision 08, dated May 2, 2022, that is required by EASA AD 2022-0125, dated June 28, 2022 (which corresponds to FAA AD 2023-04-05, Amendment 39-22352 (88 FR 13668, March 6, 2023) (AD 2023-04-05)), and that incorporation of EASA AD 2023-0004 invalidates (terminates) prior instructions for those tasks. This AD therefore terminates the limitations for the tasks identified in the service information referenced in EASA AD 2023-0004 only, as required by paragraph (j) of AD 2023-04-05.

In the NPRM, the FAA proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, as specified in EASA AD 2023-0004. The FAA is issuing this AD to address reduced structural integrity of the airplane.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0927.

The FAA received comments from The Air Line Pilots Association, International (ALPA) who supported the NPRM without change.

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

EASA AD 2023-0004 describes new or more restrictive airworthiness limitations for airplane structures and safe life limits. 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 31 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD.

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the agency estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain serial-numbered Pilatus Model PC-24 airplanes. The NPRM published in the Federal Register on April 14, 2023 (88 FR 22928). The NPRM was prompted by EASA AD 2022-0249, dated December 14, 2022 (EASA AD 2022-0249) (referred to after this as the MCAI). The MCAI states an occurrence was reported where an incorrect wiring arrangement was detected around the weather radar system on certain Pilatus Model PC-24 airplanes. In case of a lightning strike, the functionalities related to the Advanced Graphic Module (AGM) 1 and AGM2, the Dual Generic Input/Output (DGI0) 1 card in the Modular Avionics Unit (MAU) 1 module of the Honeywell Advanced Cockpit Environment (ACE) system, and the Attitude Heading Reference System (AHRS) 2 could be affected. The MCAI specifies modification of the weather radar redundant wiring.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0926.

In the NPRM, the FAA proposed to require modifying the weather radar redundant wiring. The FAA is issuing this AD to address an incorrect wiring arrangement around the weather radar system. The unsafe condition, if not addressed, could, in the case of a lightning strike, lead to the partial loss of flight and navigation data displayed to the pilot or pilots, possibly resulting in increased flight crew workload and a consequent reduction of safety margins.

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

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 this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the NPRM.

EASA AD 2022-0249 requires modification of the weather radar redundant wiring.

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

The FAA estimates that this AD affects 12 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 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 products identified in this rulemaking action.

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A300-600 series airplanes. The NPRM published in the Federal Register on April 14, 2023 (88 FR 22925). The NPRM was prompted by AD 2023-0017, dated January 23, 2023, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2023-0017) (also referred to as the MCAI). The MCAI states that new or more restrictive airworthiness limitations have been developed.

In the NPRM, the FAA proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, as specified in EASA AD 2023-0017. The FAA is issuing this AD to address the risks associated with the effects of aging on airplane systems. The unsafe condition, if not addressed, could change system characteristics, leading to an increased potential for failure of certain life-limited parts, and reduced structural integrity or controllability of the airplane. You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0928.

The FAA received a comment from Air Line Pilots Association, International (ALPA), who supported the NPRM without change.

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

EASA AD 2023-0017 specifies new or more restrictive airworthiness limitations for airplane structures and safe life limits. 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 ADDRESSES section.

The FAA estimates that this AD affects 120 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the agency estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2022-19-03, Amendment 39-22172 (87 FR 57809, September 22, 2022) (AD 2022-19-03). AD 2022-19-03 applied to all Pilatus Model PC-12, PC-12/45, PC-12/47, and PC-12/47E airplanes. AD 2022-19-03 required incorporating new revisions to the ALS of the existing airplane AMM or ICA to establish a 5-year life limit for certain MLG actuator bottom attachment bolts and new life limits for the rudder bellcrank. The FAA issued AD 2022-19-03 to prevent MLG collapse during all phases of airplane operations, including take-off and landing, and also to prevent rudder bellcrank failure, which could lead to loss of airplane control.

The NPRM published in the Federal Register on April 11, 2023 (88 FR 21543). The NPRM was prompted by EASA AD 2022-0103, dated June 9, 2022 (EASA AD 2022-0103) (referred to after this as the MCAI), issued by EASA, which is the Technical Agent for the Member States of the European Union. The MCAI states new or more restrictive tasks and limitations have been developed. These new or more restrictive airworthiness limitations include repetitive inspections for cracks in the lower main spar connection of the horizontal stabilizer.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0667.

In the NPRM, the FAA proposed to require revising the ALS of the existing AMM or ICA for your airplane, as specified in EASA AD 2022-0103. The FAA is issuing this AD to address failure of certain parts, which could result in loss of airplane control. Additionally, the actions required to address the unsafe condition in AD 2022-19-03 are included in “the applicable ALS,” as defined in EASA AD 2022-0103.

The FAA received one comment from the Air Line Pilots Association, International (ALPA). ALPA supported the NPRM without change.

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 this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the NPRM.

EASA AD 2022-0103 requires certain actions and associated thresholds and intervals, including life limits and maintenance tasks. EASA AD 2022-0103 also requires doing corrective actions if any discrepancy (as defined in the applicable ALS) is found during accomplishment of any task required by paragraph (1) of EASA AD 2022-0103 and revising the approved aircraft maintenance program (AMP) by incorporating the limitations, tasks, and associated thresholds and intervals described in “the applicable ALS” as defined in EASA AD 2022-0103.

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 ADDRESSES .

Paragraph (2) of EASA AD 2022-0103 requires corrective actions in accordance with the applicable Pilatus maintenance documentation or contacting Pilatus for approved instructions and accomplishing those instructions accordingly. Paragraph (3) of EASA AD 2022-0103 requires revising the approved AMP. Paragraph (4) of EASA AD 2022-0103 provides credit for performing actions in accordance with previous revisions of the Pilatus AMM. Paragraph (5) of EASA AD 2022-0103 explains that after revision of the approved AMP, it is not necessary to record accomplishment of individual actions for demonstration of AD compliance. This AD does not require compliance with paragraphs (2) through (5) of EASA AD 2022-0103.

The FAA estimates that this AD affects 1,030 airplanes of U.S. registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates that revising the ALS of the existing AMM or ICA for your airplane requires about 1 work-hour for an estimated cost on U.S. operators of $87,550 or $85 per airplane.

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 14 CFR part 39 as follows:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Canada Limited Partnership Model BD-500-1A10 and BD-500-1A11 airplanes. The NPRM published in the Federal Register on March 30, 2023 (88 FR 19019). The NPRM was prompted by AD CF-2022-65, dated November 23, 2022, issued by Transport Canada, which is the aviation authority for Canada (also referred to as the MCAI). The MCAI states that airplanes equipped with the CAT IIIB Autoland option, have had numerous occurrences during ILS approaches where the flight control system has reverted from PFCC normal mode operating in autopilot to REU direct mode, and then, after a period of time, to PFCC direct mode. During these occurrences, the caution message FLT CTRL DIRECT is posted on the engine indication and crew alerting system (EICAS). The MCAI states that it requires a PFCC software update, which includes control law updates that require review and disposition of previous repairs and damage assessments prior to conducting the software update. These pre-existing repairs and damage may exceed the Aircraft Structural Repair Publication (ASRP) permitted damage limits for affected structures and would affect the control laws.

In the NPRM, the FAA proposed to require installing updated PFCC software; this installation includes pre-requisites that must be met prior to the installation (installing certain database versions and software). In addition, the installation requires a records review or detailed inspection to identify pre-existing repairs and damages (that were within ASRP limits) to certain structures and obtaining and following additional instructions, as specified in Transport Canada AD CF-2022-65. The FAA is issuing this AD to address reversion to direct mode during ILS approaches, which, if not corrected, could impact flight control functions, which could prevent continued safe flight and landing. See the MCAI for additional background information.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0654.

The FAA received a comment from The Air Line Pilots Association, International (ALPA), who supported the NPRM without change. The FAA received an additional comment from one commenter, Delta Air Lines (Delta). The following presents the comment received on the NPRM and the FAA's response to each comment.

Delta requested to include an exception in paragraph (h) of the proposed AD to clarify that step 3.2 of the Accomplishment Instructions in Airbus Canada Limited Partnership A220 Service Bulletin (SB) BD500-270020, Issue No. 001, dated September 28, 2022, is not required for compliance (RC).

The FAA disagrees with adding an exception for Procedure section 3.2 of Airbus Canada Limited Partnership A220 SB BD500-270020, Issue No. 001, dated September 28, 2022. The note of step 1 of the Procedure section states “The Procedure section of the Accomplishment Instructions is Required for Compliance (RC) and must be done to comply with the AD.” The software of the PFCC is updated so that the new Control Laws (CLAWS) obey the compliance requirements for the Maximum Landing Weight (MLW) increase and to resolve inadvertent Direct Mode reversions in approach on CAT IIIB capable configuration. The unsafe condition is addressed by the software update which also includes the control laws updates. There is a statement in the Background section of the proposed AD that references the Transport Canada AD CF-2022-65 note, which mentions the PFCC software update also includes control laws updates. No changes have been made to this AD regarding this issue.

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

Transport Canada AD CF-2022-65 specifies procedures for installing updated PFCC software; this installation includes pre-requisites that must be met prior to the installation (installing certain database versions and software). In addition, the installation requires a records review or detailed inspection to identify pre-existing repairs and damages (that were within ASRP limits) to certain structures and obtaining and following additional instructions. 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 72 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has received no definitive data on which to base the cost estimates for the on-condition actions specified in this AD.

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

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2020-07-13, Amendment 39-19892 (85 FR 20394, April 13, 2020) (AD 2020-07-13). AD 2020-07-13 applied to certain Bombardier, Inc., Model BD-100-1A10 airplanes. AD 2020-07-13 required revising the existing AFM to provide the flightcrew with new warnings for “Autoflight” and “Engine Failure in Climb During ALTS CAP.” The FAA issued AD 2020-07-13 to address the occurrence of an engine failure during or before a climb while in ALTS CAP or (V) ALTS CAP mode, as it could cause the airspeed to drop significantly below the safe operating speed and may require prompt flightcrew intervention to maintain a safe operating speed.

The NPRM published in the Federal Register on April 10, 2023 (88 FR 21123). The NPRM was prompted by AD CF-2019-12R1, dated June 9, 2022, issued by Transport Canada, which is the aviation authority for Canada (referred to after this as the MCAI). The MCAI states that during altitude capture flight, the flight guidance/autopilot does not account for engine failure while capturing an altitude. The MCAI states that Transport Canada AD CF-2019-12, dated April 3, 2019, referenced specific altitude capture modes but did not consider all possible available annunciated altitude capture modes used in the affected airplanes. Therefore, the MCAI mandates further updates to the Limitation and Emergency Procedures sections of the AFM to ensure that all applicable altitude capture modes utilized and annunciated in the affected fleet are included and more clearly denotes these altitude capture modes in these new procedures.

In the NPRM, the FAA proposed to require revising the existing AFM to provide the flightcrew with new warnings for “Autoflight” and “Engine Failure in Climb During (V) ALTS CAP or (V) ALTV CAP.” The FAA is issuing this AD to address the occurrence of an engine failure during or before a climb while in altitude capture flight. The unsafe condition, if not addressed, could cause the airspeed to drop significantly below the safe operating speed and may require prompt flightcrew intervention to maintain a safe operating speed.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0662.

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

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

The FAA reviewed the following service information, which provides new warnings for the “Autoflight” procedure in Section 02-04, “Systems Limitations,” of the LIMITATIONS section; and “Engine Failure in Climb During (V) ALTS CAP or (V) ALTV CAP,” procedure in Section 03-32, “Powerplant,” of the EMERGENCY PROCEDURES section; of the applicable AFMs.

• Bombardier Challenger 300 Airplane Flight Manual (Imperial Version), Publication No. CSP 100-1, Revision 69, dated July 4, 2022. (For obtaining the procedures for Bombardier Challenger 300 AFM (Imperial Version), Publication No. CSP 100-1, use Document Identification No. CH 300 AFM-I.)

• Bombardier Challenger 350 Airplane Flight Manual, Publication No. CH 350 AFM, Revision 34, dated June 14, 2022. (For obtaining the procedures for Bombardier Challenger 350 AFM, Publication No. CH 350 AFM, use Document Identification No. CH 350 AFM.)

These documents are distinct since they apply to different airplane models in different configurations. 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 estimates that this AD will affect 244 airplanes 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 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 that this AD:

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2006-10-13, Amendment 39-14597 (71 FR 28250, May 16, 2006) (AD 2006-10-13). AD 2006-10-13 applied to all Airbus SAS Model A330-223, -321, -322, and -323 airplanes. AD 2006-10-13 required repetitive inspections of the firewall of the LAPF, and corrective actions if necessary. AD 2006-10-13 also provided an optional terminating action for the repetitive inspections. The FAA issued AD 2006-10-13 to address cracking of the LAPF firewall, which could reduce the effectiveness of the firewall and result in an uncontrolled engine fire.

The NPRM published in the Federal Register on April 11, 2023 (88 FR 21540). The NPRM was prompted by AD 2022-0190, dated September 14, 2022, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2022-0190) (also referred to as the MCAI). The MCAI states that since Direction Générale de l'Aviation Civile (DGAC) France AD F-2004-028 R2 was issued, Airbus designed an updated LAPF, the installation of which also constitutes terminating action for the repetitive inspections required by DGAC France AD F-2004-028 R2. EASA AD 2022-0190 retains the requirements of DGAC France AD F-2004-028 R2, and includes reference to an additional optional terminating action modification. EASA AD 2022-0190 also excludes airplanes on which the optional terminating action was embodied in production from its applicability.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0669.

In the NPRM, the FAA proposed to continue to require the actions specified in AD 2006-10-13, provide new optional terminating actions, and change the applicability to exclude certain airplanes, as specified in EASA AD 2022-0190. The FAA is issuing this AD to address cracking of the LAPF firewall, which could reduce the effectiveness of the firewall and result in an uncontrolled engine fire.

The FAA received comments from The Air Line Pilots Association, International (ALPA) who supported the NPRM without change.

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

EASA AD 2022-0190 specifies procedures for repetitively inspecting each LAPF firewall for cracks, and performing corrective actions, including stop-drilling the crack and applying sealants, and repairing the LAPF firewall. EASA AD 2022-0190 also specifies terminating actions for the repetitive inspections, including modifying and reidentifying the LAPF or replacing the LAPF with an LAPF having part number 72A100-713. 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 41 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

History

The FAA published a final rule in the Federal Register for Docket No. FAA-2022-1113 (88 FR 2504; January 17, 2023), that amended VOR Federal airway V-6 in the vicinity of Litchfield, MI. The amendment revoked a segment of the airway between the intersection of the Chicago Heights, IL, VORTAC 358° and Gipper, MI, VORTAC 271° radials (NILES Fix), and the Gipper, MI, VORTAC.

The FAA published a final rule in the Federal Register for Docket No. FAA-2023-0501 (88 FR 30896; May 15, 2023), amending the VOR Federal airway V-6 description to reflect the name change from the Squaw Valley, CA, VOR/DME NAVAID to the Palisades, CA, VOR/DME. In this airspace action the segment of V-6 between the intersection of the Chicago Heights, IL, VORTAC 358° and Gipper, MI, VORTAC 271° radials (NILES Fix), and the Gipper, MI, VORTAC was included in the description in error.

This action corrects this error by removing the segment of V-6 between the intersection of the Chicago Heights, IL, VORTAC 358° and Gipper, MI, VORTAC 271° radials (NILES Fix), and the Gipper, MI, VORTAC from the airway description. No other portion of the airway is affected by this rule.

Background

The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (also known as the Chemical Weapons Convention and, hereinafter, “CWC” or “Convention”), which entered into force on April 29, 1997, is an international arms control treaty that aims to eliminate an entire category of weapons of mass destruction by prohibiting the development, production, acquisition, stockpiling, retention, transfer or use of chemical weapons by States Parties ( i.e., the countries that have ratified or acceded to the CWC). Under the CWC, States Parties have agreed to destroy any stockpiles of chemical weapons that they may hold, any chemical weapons production facilities that they own or possess, and any chemical weapons that they abandoned on the territory of other States Parties. The CWC established the OPCW to achieve the object and purpose of the Convention, to ensure the implementation of its provisions (including those pertaining to international verification of compliance), and to provide a forum for consultation and cooperation among the CWC States Parties. All CWC States Parties are members of the OPCW.

Under the CWC, States Parties have agreed to implement a comprehensive data declaration, notification, and inspection regime to provide transparency and to verify that relevant facilities are not engaged in activities prohibited under the CWC. Article VI of the CWC and the CWC's Verification Annex set out declaration, notification, and inspection requirements for three categories of scheduled chemicals (Schedule 1, Schedule 2, and Schedule 3 chemicals) and for unscheduled discrete organic chemicals ( i.e., carbon compounds other than oxides, sulfides, and metal carbonates that are not listed in Schedule 1, Schedule 2, or Schedule 3) when produced, processed, or consumed in excess of certain thresholds. The Verification Requirements for Schedule 2 (including Schedule 2A) chemicals are specified in Part VII of the Verification Annex (“Schedule 2 Regime”).

The CWC's Annex on Chemicals identifies the criteria for listing chemicals in Schedule 1, Schedule 2, or Schedule 3, and lists the specific chemicals included on each Schedule. There are three Schedule 2A chemicals listed in the Annex on Chemicals:

(1) Amiton: 0,0-Diethyl S-[2-(diethylamino)ethyl] phosphorothiolate and corresponding alkylated or protonated salts (78-53-5);

(2) PFIB: 1,1,3,3,3-Pentafluoro-2-(trifluoromethyl)-1-propene (382-21-8); and

(3) BZ: 3-Quinuclidinyl benzilate (6581-06-2).

As stated in the guidelines pertaining to Schedule 2 chemicals that are set forth in the CWC's Annex on Chemicals, the inclusion of these three chemicals on Schedule 2A reflects a determination by the CWC States Parties that these chemicals pose “a significant risk to the object and purpose of the Convention” due to their “lethal or incapacitating toxicity” and that they are “not produced in large commercial quantities for purposes not prohibited” under the CWC. Two of the three chemicals (Amiton and BZ) are defense articles subject to the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130), which include registration, recordkeeping, and export and reexport licensing requirements that are administered by the Department of State. The third chemical (PFIB) is a waste product from the production of fluoromonomers, which are unscheduled discrete organic chemicals under the CWC. PFIB (including mixtures with concentrations well under 10%) is specified on the Commerce Control List (CCL), supp. no. 1 to part 774 of the Export Administration Regulations (EAR) and thereby subject to export license requirements administered by BIS. According to export data collected by BIS, exports of PFIB are minimal.

The provisions of the CWC that affect commercial activities involving scheduled chemicals are implemented, pursuant to the Chemical Weapons Convention Implementation Act of 1998 (CWCIA) (22 U.S.C. 6701 et seq. ) and Executive Order 13128 (64 FR 34703, June 28, 1999), by the CWCR (15 CFR parts 710-722) and the EAR (15 CFR 742.18 and part 745). BIS administers both the CWCR and the EAR. BIS maintains the list of Schedule 2A chemicals in the CWCR (supplement no. 1 to part 713) and the EAR (supplement no. 1 to part 745). BIS also administers the declaration, reporting, notification, and verification requirements, including those for Schedule 2A chemicals, that are described in parts 713 and 716 of the CWCR.

The Regime for Schedule 2 Chemicals and Facilities Related to such Chemicals (CWC Verification Annex, Part VII), provides in paragraph 5 that declarations “are generally not required for mixtures containing a low concentration of a Schedule 2 chemical” and are only required in accordance with guidelines approved by the Conference of the States Parties to the Convention “in cases where the ease of recovery from the mixture of the Schedule 2 chemical and its total weight are deemed to pose a risk to the object and purpose of [the] Convention.” Prior to the approval of such guidelines, the CWCIA was enacted (in October 1998) and the CWCR were implemented (on December 30, 1999). The CWCIA prohibits the imposition of routine inspection or reporting requirements pertaining to mixtures containing a Schedule 2 chemical if the concentration of the Schedule 2 chemical in the mixture is less than 10 percent (see 22 U.S.C. Chapter 75, section 6742(a)(1)). Prior to the issuance of this rule, the CWCR required that the calculation of the quantity of any single Schedule 2 chemical that was produced, processed, or consumed also include the quantities produced, processed or consumed in mixtures when the concentration of the Schedule 2 chemical in the mixture was 30% or more by volume or by weight, whichever yielded the lesser percentage (15 CFR 713.2(a)(3)).

Nearly ten years following the enactment of the CWCIA, at the Fourteenth Session of the CSP (November 30-December 4, 2009), the States Parties adopted guidelines regarding low-concentration limits, detailed in document “Decision C-14/DEC.4” (“OPCW Guidelines”), for Schedule 2A chemicals. These guidelines provide that declarations are not required under Part VII of the Verification Annex for a chemical mixture containing a Schedule 2A chemical, if the concentration of the Schedule 2A chemical in the mixture is:

(1) 1% or less; or

(2) More than 1%, but less than or equal to 10%, provided that the annual amount of the Schedule 2A chemical produced, processed or consumed is less than the relevant verification threshold, which is ten times the relevant declaration threshold.

This final rule accordingly amends part 713 of the CWCR by reducing the concentration threshold level above which mixtures containing a Schedule 2A chemical are counted toward the declaration and reporting requirements described in the CWCR. This change makes the Schedule 2A mixture concentration threshold consistent with the OPCW Guidelines, subject to the constraint imposed by the 10% low concentration threshold limit allowed under the CWCIA. Specifically, this final rule amends the CWCR to replace the previous low concentration threshold for mixtures containing a Schedule 2A chemical ( i.e., a concentration of 30% or more, by volume or weight) with a low concentration threshold of 10% or more. This rule modifies only the declaration requirements under the CWCR for mixtures containing Schedule 2A chemicals; it does not modify the declaration requirements for any other chemicals or any requirements applicable to the three Schedule 2A chemicals under either the EAR or ITAR.

Section 713.2 of the CWCR requires submission of a declaration from a plant site if one or more plants at that site produced, processed or consumed a Schedule 2 chemical during any of the three previous calendar years, or anticipate doing so in the next calendar year, in excess of the declaration threshold ( i.e., the quantity specified for that Schedule 2 chemical in § 713.2(a)(1)(i)(A)( 1 ) through ( 3 ) of the CWCR). Since the low concentration threshold for Schedule 2A chemicals now differs from the low concentration threshold for Schedule 2B chemicals, this rule revises the text of the current § 713.2(a)(3)(i) and adds paragraphs (a)(3)(i)(A), specific to Schedule 2A chemicals, and (a)(3)(i)(B), specific to Schedule 2B chemicals. Section 713.2(a)(3)(i)(A) reduces the low concentration threshold for the declaration requirements that apply to mixtures containing a Schedule 2A chemical from a concentration of 30% or more of the Schedule 2A chemical by volume or weight, whichever formula yields the lesser percentage, to a concentration of 10% or more of the Schedule 2A chemical by volume or weight, whichever yields the lesser percentage. To distinguish the low concentration threshold for Schedule 2B chemicals, which remains unchanged, from the new low concentration threshold for Schedule 2A chemicals, the low concentration threshold for the declaration requirements that apply to the production, processing or consumption of mixtures containing a Schedule 2B chemical is separately described in § 713.2(a)(3)(i)(B) of the CWCR and remains at a concentration of 30% or more by volume or weight, whichever formula yields the lesser percentage.

This rule also makes conforming changes to § 713.2(a)(3)(ii) and (iii) of the CWCR to reflect the change described above in the low concentration threshold for mixtures containing Schedule 2A chemicals. In addition, this rule adds Notes 1 through 4 to § 713.2(a)(3). Notes 1 and 2 provide examples of how to determine declaration and reporting requirements for mixtures containing a Schedule 2A chemical. Notes 3 and 4 contain updated versions of examples that were previously included in § 713.2(a)(3)(iii). These examples are included as Notes because their purpose is to clarify the application of the regulatory requirements described in § 713.2(a)(3).

Section 713.3 of the CWCR requires the submission of declarations and/or reports of exports and imports of Schedule 2 chemicals from declared plant sites, undeclared plant sites, and trading companies, along with any other persons subject to the CWCR, if such entities or persons exported or imported a Schedule 2 chemical in a quantity above the applicable threshold level, including amounts in mixtures above the specified low concentration level. Since the low concentration threshold for Schedule 2A chemicals now differs from the low concentration threshold for Schedule 2B chemicals, this rule revises the text of the current § 713.3(b)(2) and adds paragraphs (b)(2)(i)(A), specific to Schedule 2A chemicals, and (b)(2)(i)(B), specific to Schedule 2B chemicals. Section 713.3(b)(2)(i)(A) reduces the low concentration threshold for the declaration and reporting requirements that apply to exports and imports of mixtures containing a Schedule 2A chemical from a concentration of 30% or more of the Schedule 2A chemical by volume or weight, whichever formula yields the lesser percentage, to a concentration of 10% or more of the Schedule 2A chemical by volume or weight, whichever formula yields the lesser percentage. To distinguish the low concentration threshold for Schedule 2B chemicals, which remains unchanged, from the new low concentration threshold for Schedule 2A chemicals, the low concentration threshold for the declaration and reporting requirements that apply to exports and imports of mixtures containing a Schedule 2B chemical is separately described in § 713.3(b)(2)(i)(B) of the CWCR and remains at a concentration of 30% or more by volume or weight, whichever formula yields the lesser percentage.

This final rule revises Notes 1 and 2 to § 713.3(b)(2) and, consistent with the amendments described OPCW guidelines, adds § 713.3(b)(2)(ii) and (iii) to include, respectively, the information that was previously contained in these two notes. As revised, the notes provide examples of how to determine declaration and reporting requirements for exports and imports of mixtures containing a Schedule 2A chemical. New § 713.3(b)(2)(ii) clarifies how to count the amount of a Schedule 2 chemical in a mixture ( i.e., the quantity of each Schedule 2A or Schedule 2B chemical in a mixture must be counted, separately; however, the total weight of the mixture must not be counted). New § 713.3(b)(2)(iii) includes a general reference to the low concentration threshold levels that are now described in § 713.3(b)(2)(i). It also clarifies that the Schedule 2A and Schedule 2B low concentration thresholds set forth in § 713.3(b)(2)(i) apply only for declaration and reporting purposes under the CWCR and not for other purposes ( e.g., determining whether the export of a mixture requires an End-Use Certificate or a license per the relevant provisions in the EAR or the ITAR).

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including: potential economic, environmental, public health and safety effects; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits and of reducing costs, harmonizing rules and promoting flexibility. This final rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. Although this rule amends the CWCR to reduce the low concentration threshold for mixtures containing Schedule 2A chemicals for purposes of the applicable declaration and reporting requirements and, in so doing, indirectly affects the burden imposed by certain Schedule 2A chemical requirements in the EAR, BIS believes that the overall increases in burdens associated with the following information collections will be minimal:

• OMB control number 0694-0091 (Chemical Weapons Convention Declaration and Report Handbook and Forms & Chemical Weapons Convention Regulations (CWCR))—this collection includes all Schedule 1, Schedule 2, Schedule 3, and unscheduled discrete organic chemical CWCR declarations, reports, notifications, and on-site inspections of chemical facilities and carries a total burden estimate of 15,815, of which an estimated 762 hours pertain to the Schedule 2 ( i.e., both Schedule 2A and Schedule 2B) declaration regime and 12,117 pertain to inspections across all ( i.e., Schedule 1, Schedule 2, Schedule 3, and unscheduled discrete organic chemical) facilities;

• OMB control number 0694-0117 (Chemical Weapons Convention Provisions of the Export Administration Regulations (EAR))—this collection includes Schedule 1 chemical advance notifications and annual reports, Schedule 3 chemical End-Use Certificates, and exports of “technology” to produce certain Schedule 2 and Schedule 3 chemicals and carries a total burden estimate of 53 hours.

BIS does not expect the burden hours associated with these collections to change. This rule changes the declaration requirements only for mixtures containing between 10 and 30 percent of three chemicals with extremely limited commercial applications. Two of the three chemicals at issue ( i.e., the chemical Amiton: 0,0 Diethyl S-[2-(diethylamino) ethyl] phosphorothiolate and corresponding alkylated or protonated salts and the chemical BZ: 3- Quinuclidinyl benzilate) are defense articles subject to the export licensing jurisdiction of the Department of State under the ITAR. Manufacturers, exporters, and temporary importers of these items are therefore required to register under the ITAR (22 CFR122.1) and are subject to recordkeeping obligations under the ITAR including maintenance of records concerning the manufacture, acquisition, and disposition of defense articles (22 CFR 122.5). This final rule does not impose a significant additional burden on companies that produce or export Amiton and BZ because the companies are already required to maintain sufficient records to comply with their recordkeeping obligations under ITAR. The third chemical (the chemical PFIB: 1,1,3,3,3-Pentafluoro-2(trifluoromethyl)- 1-propene) is a byproduct of fluoromonomer production. Producers of fluoromonomers are already subject to the CWC declaration and inspection requirements for unscheduled discrete organic chemicals, which include regular, thorough site inspections under the procedures set out in Part IX of the Verification Annex to the CWC and implemented in part 715 of the CWCR. Consequently, BIS anticipates that this rule will impose few, if any, new reporting obligations on any U.S. company. These changes to the burden hours are within the bounds of the existing estimates.

Additional information regarding these collections of information, including all background materials, can be found at https://www.reginfo.gov/public/do/PRAMain and using the search function to enter either the title of the collection or the OMB Control Number.

3. This rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) (APA), requiring notice of proposed rulemaking, the opportunity for public participation and a delay in effective date, are waived for good cause as unnecessary and contrary to the public interest (see 5 U.S.C. 553(b)(B)). A delay of this rulemaking to provide an opportunity for public comment is unnecessary because this rule implements, to the extent permitted by the CWCIA, a treaty obligation. Specifically, paragraph 5 of Part VII of the CWC Verification Annex provides for declarations to be provided in accordance with guidelines adopted by the CSP regarding low-concentration mixtures of Schedule 2 chemicals. CSP Decision C-14/DEC.4 adopted such guidelines, which provide a low concentration limit of 1% for Schedule 2A chemicals, or 10% provided that the annual amount produced of the Schedule 2A chemical does not exceed certain specified thresholds. The decision adopting the guidelines further called for the States Parties, in accordance with their domestic legal processes, to implement the guidelines as soon as practicable.

Similarly, a delay of this rulemaking to provide notice and opportunity for public comment would be contrary to the public interest, as would a 30-day delay in effective date. In light of U.S. obligations under the CWC, this rule serves the public interest by implementing without further delay the OPCW guidelines under U.S. domestic law.

Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by the APA or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

For the reasons stated in the preamble, part 713 of the Chemical Weapons Convention Regulations (15 CFR parts 710-722) is amended as follows:

With this document, the Coast Guard Captain of the Port (COTP) Jacksonville is activating a portion of the safety zone as listed in 33 CFR 165.T07-0806(a)(1), and the safety zones listed in (a)(2) and (a)(3) on June 30, 2023 through July 4, 2023, for the CRS-28 Commercial Crew mission reentry vehicle splashdown, and the associated recovery operations in the U.S. EEZ. These safety zones are located within the COTP Jacksonville Area of Responsibility (AOR) offshore of Jacksonville, Daytona, and Cape Canaveral, Florida. The Coast Guard is activating these safety zones in order to protect vessels and waterway users from the potential hazards created by reentry vehicle splashdowns and recovery operations. In accordance with the general regulations in 33 CFR part 165, subpart C, no U.S.-flagged vessel may enter the safety zones unless authorized by the COTP Jacksonville or a designated representative except as provided in § 165.T07-0806(d)(3). All foreign-flagged vessels are encouraged to remain outside the safety zones.

There are two other safety zones listed in § 165.T07-0806(a)(4) and (a)(5), which are located within the COTP St. Petersburg AOR, in addition to a portion of zone listed in (a)(1) that is located in the COTP Savannah AOR, that are being simultaneously activated through a separate notifications of enforcement of the regulation document issued under Docket Numbers USCG-2023-0551, and USCG-2023-0553. 1

Twenty-four hours prior to the CRS-28 recovery operations, the COTP Jacksonville, the COTP Savannah, the COTP St. Petersburg, or designated representative will inform the public that whether any of the five safety zones described in § 165.T07-0806, paragraph (a), will remain activated (subject to enforcement). If one of the safety zones described in § 165.T07-0806, paragraph (a), remains activated it will be enforced for four hours prior to the CRS-28 splashdown and remain activated until announced by Broadcast Notice to Mariners on VHF-FM channel 16, and/or Marine Safety Information Bulletin (as appropriate) that the safety zone is no longer subject to enforcement. After the CRS-28 reentry vehicle splashdown, the COTP or a designated representative will grant general permission to come no closer than 3 nautical miles of any reentry vehicle or space support vessel engaged in the recovery operations, within the activated safety zone described in § 165.T07-0806, paragraph (a). Once the reentry vehicle, and any personnel involved in reentry service, are removed from the water and secured onboard a space support vessel, the COTP or designated representative will issue a Broadcast Notice to Mariners on VHF-FM channel 16 announcing the activated safety zone is no longer subject to enforcement. The recovery operations are expected to last approximately one hour.

The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

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

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

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest because immediate action is needed to respond to the potential safety hazards associated with fireworks launched from a barge in the Corpus Christi Bay.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port, Sector Corpus Christi (COTP) has determined that potential hazards associated with the fireworks display, occurring from 9 p.m. through 10 p.m. on July 4, 2023, will be a safety concern for anyone within the waters of the Corpus Christi Bay area within a 1000 foot radius from the following point; 27°47′34.39″ N, 97°23′6.77″ W. The purpose of this rule is to ensure the safety of vessels and persons on these navigable waters in the safety zone while the display of the fireworks takes place in the Corpus Christi Bay.

This rule establishes a temporary safety zone on the night of July 1st, 2023. The safety zone will encompass certain navigable waters of the Corpus Christi Bay and is defined by a 1000 foot radius around the launching platform. The regulated area encompasses a 1000 foot radius from the following point; 27°47′34.39″ N, 97°23′6.77″ W. The fireworks display will take place in the waters of the Corpus Christi Bay. No vessel or person is permitted to enter the temporary safety zone during the effective period without obtaining permission from the COTP or a designated representative, who may be contacted on Channel 16 VHF-FM (156.8 MHz) or by telephone at 361-939-0450. The Coast Guard will issue Broadcast Notices to Mariners, Local Notices to Mariners, and/or Safety Marine Information Broadcasts, as appropriate.

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, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, and duration of the safety zone. The temporary safety zone will be enforced for the short period of one hour, on the night of July 4, 2023. The zone is limited to a 1000 foot radius from the launching position of in the navigable waters of the Corpus Christi Bay. The rule does not completely restrict the traffic within a waterway and allows mariners to request permission to enter the zone.

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

While some owners or operators of vessels intending to transit the temporary 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 contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, and Environmental Planning, COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f) and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves establishment of a temporary safety zone for navigable waters of the Corpus Christi Bay in a zone defined by a 1000 foot radius from the following coordinate: 27°47′34.39″ N, 97°23′6.77″ W. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by fireworks display in the waters of the Corpus Christi Bay. It is categorically excluded from further review under paragraph L60(a) 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 contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

Throughout this document, “we,” “us,” and “our” refer to the EPA.

On January 30, 2023 (88 FR 5826), the EPA proposed approval of three rules and a limited approval and limited disapproval of six rules that were submitted for incorporation into the California SIP. Table 1 shows the rules in the California SIP that will be removed or superseded by this action.

Table 2 shows the rules that the State submitted for inclusion in the California SIP. The submitted rules listed in Table 2 would replace the current EPA-approved SIP rules that are listed in Table 1. The rule subsections contained in 1302(C)(5) and 1302(C)(7)(c) are not submitted for inclusion in the California SIP because they are requirements for regulating toxic air contaminants (TAC) and hazardous air pollutants (HAP) under District Rule 1401, “New Source Review for Toxic Air Contaminants.”  1

Throughout this document “we,” “us,” and “our” refer to EPA.

The EPA is partially approving and partially disapproving a SIP revision submitted by the State of Missouri on February 17, 2022. In its submission, MoDNR requested that AOC No. APCP-2015-118 between MoDNR and Evergy (formerly Kansas City Power & Light) submitted in 2016, and amended in 2018 (Amendment #1), be replaced with Amendment #2 to the AOC in the SIP. The EPA is approving these SIP revisions, with the exception of Amendment #2 paragraph 12.A. The approved revisions meet the requirements of the Clean Air Act. The EPA is disapproving Amendment #2 paragraph 12.A. because this provision potentially allows Lake Road to burn fuel oil with a sulfur content greater than the sulfur content limit of 15 parts per million (ppm) on a temporary basis. Paragraph 12.A. is severable from Amendment #2 because it is a new paragraph that was not previously included in the 2016 AOC or Amendment #1, and it is not approved in the SIP. The EPA proposed to partially approve and partially disapprove this submission on April 26, 2023 (88 FR 25309). The EPA's analysis of the State's requested SIP revisions can be found in section II of the proposed rule and in more detail in the technical support document (TSD) included in this docket.

With respect to the portions of the submittal which EPA is approving, the State submission met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State provided public notice on this SIP revision from November 1, 2021, to December 9, 2021 and received no comments. In addition, as explained above and in more detail in the TSD which is part of this docket, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

As explained in section II of the proposed rule and further in the TSD, the EPA is disapproving Amendment #2 paragraph 12.A.

The EPA received no comments on the proposed rule during the public comment period which opened April 26, 2023, the date of its publication in the Federal Register , and closed on May 26, 2023.

The EPA is taking final action to amend the Missouri SIP by partially approving and partially disapproving the State's submittal. Under section 179(a) of the CAA, final disapproval of a submittal that addresses a requirement of part D, title I of the CAA (CAA sections 171-193) or is required in response to a finding of substantial inadequacy as described in CAA section 110(k)(5) (SIP Call) starts a sanctions clock. The Missouri SIP submission that we are partially disapproving was not submitted to meet either of these requirements. Therefore, this partial disapproval will not trigger mandatory sanctions under CAA section 179. In addition, CAA section 110(c)(1) provides that the EPA must promulgate a Federal Implementation Plan (FIP) within two years after either finding that a State has failed to make a required submission or disapproving a SIP submission in whole or in part, unless the EPA approves a SIP revision correcting the deficiencies within that two-year period. With respect to our partial disapproval of Missouri's SIP submission, however, we conclude that any FIP obligation resulting from this partial disapproval is satisfied by our determination that there is no deficiency in the SIP to correct. Specifically, we are approving all revisions with the exception of Amendment #2 paragraph 12.A.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Missouri Amendment #2 to Administrative Order on Consent, State effective October 18, 2021, between MoDNR and Evergy related to controlling SO 2 emissions at the Lake Road power plant discussed in section I of this preamble and as set forth below in the amendments to 40 CFR part 52. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Also, in this document, as described in the amendments to 40 CFR part 52 set forth below, the EPA is removing provisions of the EPA-Approved Missouri Administrative Order on Consent and Amendment #1 (State effective September 27, 2018) from the Missouri State Implementation Plan, which is incorporated by reference in accordance with the requirements of 1 CFR part 51. As described in the amendments to 40 CFR part 52 set forth below, EPA is also removing an outdated reference to the St. Joseph Light and Power So 2 consent agreement (State effective May 21, 2001).

The EPA reviewed demographic data, which provides an assessment of individual demographic groups of the populations living within a 2-mile radius of the Lake Road facility Census 2010 Summary Report available on its environmental justice (EJ) screening and mapping tool (“EJSCREEN”). The EPA then compared the data to the State average for each of the demographic groups using 2010 State census data from the United States Census Bureau. The results of this analysis are being provided for informational and transparency purposes. The results of the demographic analysis indicate that, for populations within the 2-mile radius of the Lake Road facility, the percent of people of color (persons who reported their race as a category other than White alone (not Hispanic or Latino)) is less than the national average (16 percent versus 21 percent). Within people of color, the percent of the population that is Black or African American alone is lower than the State average (3 percent versus 12 percent) and the percent of the population that is American Indian/Alaska Native is similar to the State average (1 percent versus 1 percent). The percent of the population that is two or more races is similar to the State average (3 percent versus 3 percent). The percent of people with low income within the 2-mile radius of the Lake Road facility is higher than the State average (41 percent versus 31 percent).

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);

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

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

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

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

• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a State program;

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The air agency did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA performed an environmental justice analysis, as is described above in the section titled, “Environmental Justice Considerations.” The analysis was done for the purpose of providing additional context and information about this rulemaking to the public, not as a basis of the action. In addition, there is no information in the record upon which this decision is based inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 1, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as set forth below:

Background

The purposes of the Endangered Species Act (ESA; 16 U.S.C. 1531 et seq. ) are to provide a means to conserve the ecosystems upon which listed species depend, to develop a program for the conservation of listed species, and to achieve the purposes of certain treaties and conventions. Moreover, the ESA states that it is the policy of Congress that Federal agencies shall seek to conserve threatened and endangered species and use their authorities to further the purposes of the ESA (16 U.S.C. 1531(c)(1)). The ESA's implementing regulations are found in title 50 of the Code of Federal Regulations (CFR).

The 1982 amendments to the ESA added section 10(j) to facilitate reintroductions of listed species by allowing the Service to designate “experimental populations.” The regulations to carry out section 10(j) provide that the Service may designate as an experimental population a population of an endangered species or a threatened species that will be released into suitable natural habitat outside the species' current natural range (but within its probable historical range, absent a finding by the Director in the extreme case that the primary habitat of the species has been unsuitably and irreversibly altered or destroyed) (50 CFR 17.81). At the time the Service adopted these regulations, we did not anticipate the impact of climate change on species and their habitats. We have since learned that climate change is causing, or is anticipated to cause, many species' suitable habitat to shift outside of their historical range.

The 2021 National Fish, Wildlife, and Plants Climate Adaptation Network's Climate Adaptation Strategy report summarizes impacts to species' behavior, morphology, and physiology, as well as shifts in ranges and demographic and population-level impacts from climate change (NFWPCAN, 2021, pp. 15-20). In chapter 7 of the Fourth National Climate Assessment (Lipton et. al., 2018, p. 269), one of the key messages states, “Climate change continues to impact species and populations in significant and observable ways. Terrestrial, freshwater, and marine organisms are responding to climate change by altering individual characteristics, the timing of biological events, and their geographic ranges. Local and global extinctions may occur when climate change outpaces the capacity of species to adapt.” A recent paper looked at Big Pine Key, Florida, as a case study in examining how to incorporate current scientific knowledge about regional climate projections in Service analyses. The authors examined the anticipated future effects of sea-level rise on existing habitat from saltwater intrusion of the freshwater lens below Big Pine Key. They stated that, beyond 3 ft (0.9 m) of sea-level rise, few adaptation options are available for the Florida Key deer beyond relocations outside of the Florida Keys (Miller and Harwell, 2022, p. 14553). Thus, it is clear that climate change is presently affecting—and will continue to affect—species and their habitats, and that tools such as the establishment of experimental populations outside of their historical range will become increasingly important for the conservation and recovery of ESA-listed species.

In addition to climate change, other threats such as invasive species may also reduce the ability of habitat to support experimental populations within the species' historical range. For example, both the Guam rail and Guam kingfisher (sihek) no longer have any habitat within their historical range that is suitable for reintroduction or establishment of an experimental population. The primary cause of the rail's and sihek's extinction in the wild was predation by the introduced brown tree snake (54 FR 43966, October 30, 1989; USFWS 2008, p. 21). Applying the current section 10(j) regulations, the Service's Director determined that each was an extreme case and found that the primary habitat of the species within its historical range had been unsuitably and irreversibly altered or destroyed. For the rail, we finalized the establishment of an experimental population on the island of Rota, and for the sihek we recently published a final rule to establish an experimental population on Palmyra Atoll; both locations are outside the historical range for these species (54 FR 43966, October 30, 1989; 88 FR 19880, April 4, 2023).

Therefore, we have determined that it may be necessary and appropriate to establish experimental populations outside of a species' historical range to provide for its conservation and adaptation to the habitat-related impacts of climate change and other threats. On June 7, 2022, we proposed to revise the section 10(j) regulations at 50 CFR part 17, subpart H (87 FR 34625), and in this final rule we discuss the comments we received during the comment period and our consideration of the issues raised.

The regulatory changes in this final rule more clearly establish the authority of the Service to introduce experimental populations of listed species into areas of habitat outside of their historical ranges. Removing this restriction—that the Service may only consider designating an experimental population outside a species' historical range if the species' primary habitat has been unsuitably and irreversibly altered or destroyed—will allow the Service to act before populations are severely depleted, lose important elements of genetic diversity, or become habituated to captivity and may help to prevent species extinctions. Being able to act before situations are so dire that there is no remaining suitable habitat within the historical range will improve the likelihood of species recovery while reducing the need for costly and extreme measures.

When introducing experimental populations outside of historical range, we must avoid adversely affecting the ecosystem into which the population is being introduced. Our practice is to follow the International Union for Conservation of Nature (IUCN) Guidelines for Reintroductions and Other Conservation Translocations, which recommends conducting ecological risk assessments where appropriate. As part of this final rule, we added language stating that we will consider any possible adverse effects to the ecosystem that may result from the establishment of the experimental population. Other regulatory revisions included in this final rule do not change the process for designating an experimental population.

In this rule, we finalize the proposed revisions at 87 FR 34625 (June 7, 2022) to the regulations at 50 CFR part 17, subpart H. The primary revision was to delete the reference to a species' “historical range.” This change allows for experimental populations to be introduced into habitat outside of the historical range of the species under appropriate circumstances. Those circumstances could include instances where little to no habitat remains within the historical range of a species or where formerly suitable habitat within the historical range has undergone, is undergoing, or is anticipated to undergo irreversible decline or change, such that it no longer contains the resources necessary for survival and recovery, thereby leading to the need to establish the species in habitat in areas outside the historical range. Circumstances could also include instances where, based on the best available scientific information, we anticipate that the historical range will no longer contain habitat capable of supporting the recovery of the species. This rule will be applied to future designations and will not require the reevaluation of any prior designation of an experimental population.

Based on comments we received on the proposed rule (87 FR 34625, June 7, 2022), and to provide clarifications, we include the changes described below to the proposed regulations. Other than these revisions, we are finalizing the rule as proposed:

1. In the regulation at 50 CFR 17.81(a), we removed the proposed reference to “one or more life history stages.” We determined that this language was confusing and did not communicate our intent that, in order to designate an experimental population outside the historical range, we must determine that there is habitat capable of supporting that experimental population. In considering this change we also decided it would be appropriate to change “that is necessary to support” to “that is capable of supporting.”

2. In § 17.81(a), we also revised “that has been or will be released” to “that will be released” as the proposed language implied that we can retroactively designate already introduced populations, which we cannot do.

3. To § 17.81(b), we revised proposed § 17.81(b)(4) for clarity by adding “experimental” before “population” in the first part of the sentence. We also added a new subparagraph (b)(5) to ensure that, when establishing an experimental population outside of the species' historical range, we consider whether establishing such a population will adversely affect the ecosystem in the area where the experimental population would be established.

4. We revised proposed § 17.81(c)(3) to address the possibility that removal of the experimental population may be necessary by adding the word “remove” to the sentence. In the past, we have recognized that removal may be needed, and this addition explicitly recognizes that possibility.

5. We clarified and revised proposed § 17.81(d) by changing the word “acts” to “actions.”

In our proposed rule to revise the regulations for establishing experimental populations published on June 7, 2022 (87 FR 34625), we requested public comments. By the close of the public comment period on August 8, 2022, we received just under 570 public comments on our proposed rule. We received comments from a range of sources including individual members of the public, States, Tribes, industry organizations, legal foundations and firms, and environmental organizations. Just under half of the comments received (253) were nearly identical statements from individuals indicating their general support for the proposed changes to the regulations but not containing substantive content. In addition, more than 50 identical comments generally indicated they did not support the proposed changes, and several stated general concern over impacts to private agricultural lands. The remaining comments were unique and raised substantive issues.

We reviewed and considered all public comments prior to developing this final rule. Summaries of substantive comments and our responses are provided below. We combined similar comments where appropriate. We did not, however, consider or respond to comments that are not relevant to or are beyond the scope of this particular rulemaking action.

Comment 1: Several commenters stated that the proposed rule conflicts with the 2018 United States Supreme Court decision in Weyerhaeuser Co. v. United States Fish and Wildlife Service, 139 S. Ct. 361, 372 (2018). These commenters asserted that the court ruled that areas that are not habitat cannot be designated as critical habitat, even though at one time the area in question served as habitat for the species. They further stated that if habitat cannot be designated as critical habitat under the ESA, neither can land be designated as critical habitat if it was never part of the historical range of the species and never served as habitat for the species.

Response: Nothing in these 10(j) regulation revisions changes the processes or regulations for designating critical habitat. Establishment of an experimental population does not designate critical habitat or require that any areas be designated as critical habitat. In accordance with these revised 10(j) regulations, critical habitat for experimental populations may be designated only for those experimental populations that we determine to be essential to the conservation of the species. We cannot designate critical habitat for nonessential experimental populations. In addition, we would not establish an experimental population in areas of habitat that would not support that population. For some species, areas that were not part of the species' historical range are now capable of supporting a population because of climate change, and those areas can now serve as habitat for that species. Consistent with Weyerhaeuser, we will designate as critical habitat only areas that are habitat for the given listed species, and we will make that determination based on the best available science for the particular species, the statutory definition of “critical habitat,” our implementing regulations, and existing case law (87 FR 37757 at 37759, June 24, 2022).

Comment 2: A few commenters stated that we should retain the following sentence that we proposed to delete from § 17.81(f): “In those situations where a portion or all of an essential experimental population overlaps with a natural population of the species during certain periods of the year, no critical habitat shall be designated for the area of overlap unless implemented as a revision to critical habitat of the natural population for reasons unrelated to the overlap itself.” One commenter asserted that this sentence contains an important clarification. Another commenter also asserted that retaining this sentence provides assurance to private landowners that the expanded areas for potential release will not be used to expand designation of critical habitat.

Response: We have retained the proposed deletion in this final rule. We will not designate critical habitat for nonessential experimental populations. In designating critical habitat for essential experimental populations, we will follow section 4 of the ESA and the regulations and policies for critical habitat designations.

Comment 3: A few commenters stated that the recent repeal of the 2020 final rule that established the definition of “habitat” for designating critical habitat under the ESA is a concern. The commenters asserted that the lack of a regulatory definition for habitat adds to the uncertainty and subjectivity that will result when the Service designates experimental populations.

Response: When we are analyzing whether and where to establish an experimental population, we look at whether the habitat is suitable to support that population and if the establishment of the population will be successful. This analysis is species-specific and is based on the best available scientific information. However, the evaluation of whether habitat in the experimental population area is suitable to support the species is distinct from a critical habitat designation, which is accomplished through a separate rulemaking process. Again, we cannot designate critical habitat for nonessential experimental populations.

Comment 4: A commenter recommended the Service revise the proposed rule to clarify that impacts to nonessential experimental populations that have been introduced outside the species' historical range will not trigger consultation obligations under section 7 of the ESA. The commenter asserted that while such a provision would not meaningfully alter the trajectory of the species, it could make a critical difference in the Biden-Harris Administration's goal of expediently delivering clean energy on a large scale.

Response: Section 10(j) of the ESA already provides for reduced or streamlined section 7 procedures for experimental populations. For nonessential experimental populations, except for those occurring on National Park Service (NPS) lands or the National Wildlife Refuge System (NWRS), the less formal conferencing process applies rather than the standard consultation process requirements. Conferencing is an important tool to ensure that impacts do not jeopardize the continued existence of the species because the need to conference is based on an analysis of the combined populations of the listed species, whether or not any are designated as a nonessential experimental population.

Comment 5: A commenter expressed concern over the proposed revision requiring section 7 consultation to occur on experimental populations outside of historical habitat. The commenter stated that this proposed requirement would be onerous, lacks regulatory certainty for the regulated community, and stated is not clear how existing projects and land uses would be impacted should they now be required to undergo section 7 consultation where they previously did not because of being in non-occupied areas.

Response: It is true that if we designated an experimental population outside of historical range, the section 7 consultation requirements would apply. For nonessential experimental populations, we would treat the population as a species proposed for listing (except within NWRS or NPS land, where such populations are treated as threatened species) and follow the more informal conferencing process, and for essential experimental populations we would follow the standard consultation process. Conferencing is required only when a proposed action is likely to jeopardize the continued existence of a species proposed for listing or destroy or adversely modify proposed critical habitat. We do not anticipate that there would be many circumstances where we would determine that a project affecting a nonessential experimental population is likely to jeopardize the listed species. Existing projects and land uses may not necessarily be affected if there is no further Federal nexus to those projects or land uses; when considering whether to establish an experimental population, whether within or outside historical range, we will coordinate closely with any affected entities.

Comment 6: One commenter stated that where the Service elects to promulgate an ESA section 10(j) rule prohibiting take of experimental populations, the Service should establish a blanket exception for incidental take of nonessential experimental populations introduced outside the species' historical range. The commenter further asserted that otherwise, ESA section 10(j) rules prohibiting take outside of historical ranges would introduce unnecessary uncertainty for the construction and/or operation of renewable energy and transmission and distribution projects. Another commenter suggested that the Service should recognize that the “blanket 4(d) rule” does not apply to experimental populations and should further create a blanket exception to the take prohibition for nonessential experimental populations located outside the species' historical range.

Response: All experimental populations are treated as if they were listed as a threatened species for purposes of establishing protective regulations under section 4(d) of the ESA. This provision allows the Service to devise those prohibitions and exceptions necessary to provide for the conservation of the species rather than provide the full prohibitions that would apply for an endangered species. If we reinstate the blanket 4(d) rule, we will not consider using it for an experimental population in the future, and we are not establishing a blanket exception for incidental take that would apply to all 10(j) populations because we conclude that each situation is unique and requires careful consideration of what prohibitions may be necessary to apply to the experimental population; creating a blanket exception to the take prohibition for a nonessential designation would not provide the flexibility that is needed to further the conservation of the species. When we establish an experimental population, we propose a species-specific rule that outlines any prohibitions that will apply to that species' experimental population. Throughout this process we work with any entities that may be affected by the establishment of the experimental population to address any concerns about how the population may affect any ongoing or future renewable energy projects.

Comment 7: One commenter suggested that the Service should explicitly recognize the value of mitigation in areas outside a species' historical range. The commenter stated that, should the Service finalize the proposed rule, there will be regulatory confirmation that the agency believes areas outside a species' historical range can serve valuable conservation purposes ( e.g., as different areas become able to support a life stage due to the effects of climate change or other factors). Where the Service has introduced an experimental population outside the species' historical range, the commenter asserted that the agency should also allow the proponents of projects having impacts to the species within the historical range to provide compensatory mitigation in areas outside the historical range in which the Service has introduced the experimental population.

Response: Fulfilling the Service's mission and recovering species requires all available conservation tools, potentially including compensatory mitigation in an area with an introduced experimental population. Any such decision will be species- and situation-specific, and we will make the decision in the context of recovery and landscape-level planning and will follow our current regulations and policies for section 10(j) and compensatory mitigation.

Comment 8: A commenter stated that we are revising the current 10(j) regulations to interpret the statute as making it discretionary rather than mandatory to use the best available science to determine whether the release will further the conservation of the species. The commenter further stated that FWS should explicitly state that it is changing the language to reflect a changed interpretation or policy instead of doing it tacitly and without acknowledging it.

Response: We have not proposed or finalized any revisions to the 10(j) regulations that change the requirement to use the best scientific and commercial data available when considering whether to establish an experimental population. See 50 CFR 17.81(b). Regardless of whether an experimental population is within or outside the historical range of the species, the Service must still find, based on the best scientific and commercial data available, that the experimental population will further the conservation of the species.

Comment 9: Several commenters stated that the criteria we used to justify the proposed rule are vague, nonspecific, and undefined. They suggested that the proposed rule does not state to what degree a species' habitat needs to suffer such damage before this new authority could be invoked. The commenters asserted that this criterion also fails to meet the standard of objective science-based decision-making that the Service is required by the ESA to meet. Another commenter requested that we reemphasize the importance of conserving nonexperimental populations in place wherever possible. This commenter stated that only non-development-related pressures ( e.g., threats that are impossible to abate through protection of originally designated critical habitat, like climate change) should be considered as appropriate reasons to establish experimental populations of rare plants outside of their historical range.

Response: Conserving nonexperimental populations is important to the recovery of species; however, for some species, establishing experimental populations may be necessary to advance their recovery. Defining what specific type of threats are “appropriate circumstances” is not necessary or advisable because they will vary by species, their habitat needs, habitat availability, and threats to the species and any definition may fail to acknowledge all circumstances under which establishing an experimental population is appropriate. However, in the preamble of this final rule we further explained, in general terms, when we might establish an experimental population outside of its historical range. Additionally, the regulations at 50 CFR 17.81(b) and (c) do outline required elements that we must consider or provide in any specific experimental population regulation. Regardless of whether an experimental population designation is within or outside of a species' historical range, it must be based on the best available science and further the conservation of the species.

Comment 10: One commenter indicated that clarity is needed to ensure that an experimental population designation can be applied even when releases have already been conducted, regardless of the date of such releases. Another commenter stated that the regulation change should not be limited to new introductions and that the Service should reevaluate and update prior designations to comply with this change. The commenters stated that not doing a reevaluation would penalize existing experimental populations that could benefit significantly by being introduced or allowed to expand outside their “historical range” as it was defined when they were listed.

Response: We cannot designate a population as experimental if that population was already released and not as an experimental population; we stated in the proposed rule, and further clarified in this final rule, that these regulations would not apply retroactively. However, it is possible that we may consider establishing additional experimental populations for species that already have an experimental population and could at that time consider whether to establish one or more populations outside of the species' historical range. Requirements for periodic review of the effects of experimental populations on the recovery of the species (§ 17.81(c)(4)), as well as the requirement to review the status of a species under section 4(c)(2) of the Act (5-year status reviews) provide mechanisms to evaluate and adjust our recovery programs for individual species.

Comment 11: A commenter stated that, rather than designating experimental populations, the Service should find landscapes where a listed species is thriving and prohibit changes to the management and maintain the current uses of that land until the species recovers. The commenter further stated that the Service should seek to copy and apply that management to similar lands within the species' natural range where the species has been extirpated.

Response: Conserving populations within their current range is important to the recovery of listed species, and establishing experimental populations is one of the tools we use to help achieve that goal. However, in some circumstances, such as when climate change or invasive species have altered the habitat within the current range so that it is no longer capable of supporting the species, establishing experimental populations outside of a species' historical range is also an important recovery tool.

Comment 12: One commenter recommended that the Service, in collaboration with the National Marine Fisheries Service (NMFS), quickly, expeditiously, and with stakeholder involvement develop comprehensive guidance as to translocation decision-making. The commenter stated that, where potential translocations of listed species may promote conservation, that guidance should help decision-makers at the Services answer translocation questions.

Response: While overarching guidance on translocations is important, at this time we will not be developing such guidance with NMFS. We have, however, recommended that our field and regional offices follow the IUCN reintroduction guidelines, which serves this purpose.

Comment 13: One commenter suggested that we reference the IUCN reintroduction guidelines in regulation and specifically mentioned our internal memo recommending the use of the guidelines.

Response: While the IUCN guidelines are important in guiding introductions and we have communicated that information to our staff in our regions and field offices, we do not find it is necessary to reference them in these regulations. Because the best available science and guidance may change over time, it is unwise to reference a specific set of guidelines in our regulations. Instead, our regulations at § 17.81(b) include the direction to “use the best scientific and commercial data available.”

Comment 14: A commenter urged us to add terminology to 50 CFR part 17 or the preamble to this rulemaking that reflects the importance of and need for connectivity between current and reintroduced populations, and between historical and newly suitable habitats.

Response: While connectivity between populations is very important, the 1982 amendments to the ESA and our regulations for experimental populations require that the experimental population must be geographically separate from other populations of that species. Where populations will not be geographically separate, or where the goal is to promote connectivity of populations, tools such as safe harbor agreements or recovery permits, rather than designation of experimental populations under section 10(j) of the Act, may be more appropriate.

Comment 15: Several commenters note that the Service has recognized that invasive species can pose a threat to species within their historical range. The commenters also stated that establishing experimental populations of endangered species outside of the species' historical range also, like invasive species, has the potential to disrupt the ecosystem in the introduced range such that it impacts native and/or threatened or endangered species. They further asserted that establishing a population outside of its historical range could have myriad unforeseeable and unintended consequences to other native wildlife species and native plant communities.

Response: Invasive species do pose threats to many species, and we would need to carefully consider whether an experimental population established outside of its historical range could itself become an invasive species. While we think this scenario is unlikely, as ESA-listed species do not typically have characteristics of invasive species, we have revised the regulations by adding a new subparagraph in § 17.81(b) to indicate that, when we are considering establishing an experimental population outside of historical range, we will analyze any adverse effects on the ecosystem into which the experimental population is being introduced.

Comment 16: A few commenters stated that, while narrow, there is an avenue in the current regulations for designating experimental populations outside their historical range. The commenters explained that such designations are necessarily limited and can occur only in “the extreme case that the primary habitat of the species has been unsuitably and irreversibly altered or destroyed.” They further explained that this “extreme case” standard ensures a species is limited to its historical range unless and until there is a robust scientific evaluation of the species' primary habitat. The commenters asserted that, considering the profound and sometimes irreversible effect introduction can have on existing species, existing habitat, and human development, to name only a few, it is imperative that such evaluations occur in advance of any designation.

Response: Deleting the reference to “historical range” and removing the requirement that the species' primary habitat be destroyed is necessary to make the process of establishing experimental populations outside a species' historical range more flexible. With climate change and other threats, such as invasive species, increasingly becoming an issue for some species, it is likely that habitats will become unsuitable and such situations are no longer “extreme cases.” These revisions will allow greater flexibility to act before primary habitats are destroyed and allow for more efficient and effective recovery efforts. For listed species whose recovery is threatened by factors such as these, we view experimental population establishment outside of their historical ranges as a potential tool for their management and conservation.

Comment 17: Commenters stated that giving the Service the ability to designate non-historical habitat for experimental endangered species populations will be misused by the agency and other nongovernmental organizations to unduly burden the energy and agricultural industries and force operators out of business.

Response: The process for designating an experimental population is rigorous, and we must go through a public notice and comment rulemaking process before deciding to establish an experimental population, whether within or outside historical range. During the process, we coordinate with State agencies, Tribal governments, local governments, industry groups, private landowners, and other entities that may be affected by the establishment of an experimental population.

Comment 18: One commenter stated that the reference to “affected private landowner,” while already in the existing regulations, is unclear and should be further defined. The commenter asserted that private forest owners are looking for certainty and consistency in the application of rules and policies under the ESA, and the proposed rule should be explicit about with whom the Service will engage before drafting rules and when introducing populations into habitat outside of their historical range for conservation purposes. Further, the commenter urged the Service to provide a definitive and transparent framework for engagement and outreach to the affected private landowners.

Response: Determining with which entities we will collaborate will be important when we are contemplating proposing to establish an experimental population—whether within or outside historical range. With whom we engage will vary depending on the species and potential location of the experimental population. However, because we cannot anticipate in advance all potential stakeholders, the term “affected private landowners” is intentionally broad. Defining the term further could unintentionally exclude groups of landowners. Therefore, we are not further defining “affected private landowner.”

Comment 19: Commenters suggested that the Service should establish experimental populations in areas where States and private partners are willing to develop innovative programs to make the reintroduced species an asset to neighboring landowners, rather than a liability. The commenters asserted that this could be done through, for instance, a pay-for-presence program that financially rewards landowners for the documented presence of the introduced species on their land.

Response: We support the goal of having a reintroduced experimental population be an asset to landowners, but we do not currently have the authorization or funding to establish a pay-for-presence program.

Comment 20: One commenter recommended that, instead of expanding the scope of section 10(j) experimental populations, the Service should evaluate use of non-ESA frameworks under State wildlife management authority when contemplating potential introductions of ESA-protected species outside historical range. The commenter stated that the Service could develop more flexible management programs in cooperation with States, land management agencies, and private landowners that could avoid ESA regulatory burdens and associated risks and costs of litigation. The commenter further asserted that most importantly, such agreements would enhance local collaboration and control and increase the likelihood of social acceptance and, ultimately, long-term success of conservation translocations.

Response: We do work collaboratively with States and other agencies when considering whether to establish an experimental population and can craft species-specific rules that include only the take prohibitions necessary for the conservation of the species. When establishing an experimental population, we must follow the ESA and our regulations. Introduction of species under the authorities of section 10(j) allow for regulatory flexibilities by the establishment of a section 4(d) rule. A species introduced without a section 10(j) rule is subject to all the regulatory authorities of the ESA. In addition, we can collaboratively reintroduce populations of ESA-listed species without using the experimental population tool and could also use our Safe Harbor Agreement tool as a mechanism for reintroducing listed species.

Comment 21: One commenter indicated that it was of critical importance to assure the full coordination and cooperation between the Service and any affected States as an integral part of the experimental population establishment process, along with recognition that an affected State must agree to the proposed action.

Response: While we have not revised our regulations to include a requirement that the affected State(s) must agree to the proposed establishment of an experimental population, our full coordination with State agencies and all other affected entities when going through the process to establish an experimental population is extremely important and is reflected in our regulations (see § 17.81(e)).

Comment 22: One commenter stated that that the Service should work with Tribes to seek and incorporate Indigenous Traditional Ecological Knowledge (ITEK) into decisions relating to experimental populations as doing so will help produce better decisions.

Response: We have added Tribes into the regulations as an entity with whom we must coordinate (see § 17.81(e)). Our intent is to fully coordinate with any Tribes that may be affected by the establishment of an experimental population. We will also work with Tribes to gather ITEK when going through the experimental population establishment process.

Comment 23: A number of commenters stated that, given the increasing threats to many species within their historical ranges, recovery of those species may be increasingly dependent on the introduction of experimental populations. They stated that it is increasingly necessary for the Service to use the “essential” designation. The commenters further asserted that more generous use of the “essential” designation would allow the Service to designate critical habitat for experimental populations, which would be an important tool in addressing the increasing threats to habitat recognized in the proposed rule.

Response: Establishing experimental populations is one tool to help recover listed species. Our determination as to whether an experimental population is essential to the continued existence of the species is made on a species-by-species basis, considering the status of that species and the best available scientific and commercial information. We cannot predict in advance whether we will make essential determinations more frequently in the future.

Comment 24: One commenter suggested that we revise § 17.81(c)(2), the requirement to determine whether an “experimental population is, or is not, essential to the continued existence of the species in the wild,” by adding “or in captivity, if the species is solely held in captivity.”

Response: We did not include the proposed revision in this final rule because this concept is outside the scope of our proposal and the public did not have an opportunity to comment on it.

Comment 25: Several commenters supported the proposed revisions and noted that climate change poses new and growing threats to a myriad of species. The commenters asserted that many species, including threatened and endangered species with already limited habitat availability, must either adapt to rapidly shifting temperature and precipitation regimes or migrate at a pace commensurate with climatic changes to avoid extinction. They stated that species with low vagility or dispersal capability may not be able to keep up with such shifts and may be driven to extinction via this migration lag.

Response: Climate change poses threats to numerous species, the impacts of which we did not anticipate at the time we adopted these regulations in 1984. One reason we are revising our regulations is that we have since learned that the impact of climate change is causing, or is anticipated to cause, many species' suitable habitat to shift outside of their historical range. In these instances, having a tool that allows us to establish an experimental population outside of a species' historical range will help us better recover listed species.

Comment 26: One commenter stated that every regulation, every tool, and every policy the Service creates should be evaluated through the lens of section 2(c) of the ESA and the definition of “conservation.” The commenter explained that if the action does not use “all methods and procedures which are necessary” to recover species, it should be revised, as the Service proposes to do here.

Response: Establishing experimental populations is one tool we can implement to support the recovery of listed species. We are revising our 10(j) regulations to reflect our determination that, in order to provide for the conservation of certain species, it may be increasingly necessary and appropriate to establish experimental populations outside of their historical range if the species' habitat has undergone, is undergoing, or is anticipated to undergo irreversible decline and is no longer capable of supporting the species due to threats such as climate change or invasive species. The commenter's views about how section 2(c) and the definition of “conservation” should be broadly applied throughout our ESA program are beyond the scope of this rule.

Comment 27: A few commenters stated that the Service's proposed change is not only within its authority but is necessary to fulfill the purposes of the ESA and specifically section 10(j). They stated that threats including climate change, invasive species, and human stressors like development are increasingly degrading many species' ability to survive—let alone recover—within their historical ranges. In addition, a number of commenters supported the proposed regulatory revisions and stated that it is clear that the ESA did not foresee or address the potential ESA implementation problems that climate change would present. The commenters asserted that adapting the regulations to accommodate shifts in habitat due to climate change potentially has merit if the process is sufficiently rigorous to avoid unanticipated secondary effects.

Response: As stated in the preamble, in 1984, when our regulations pertaining to section 10(j) of the ESA were first written, climate change and invasive species were not recognized as the significant threats they are today. As an agency, we need to adapt our regulations and policies to address changing threats to species.

Comment 28: Several commenters stated that the Service should prioritize habitats near or adjacent to species' historical ranges where at all possible. They asserted that, when this is not possible, great effort should be taken to identify habitats that are clearly analogous to those in species' historical ranges for reintroduction efforts.

Response: We will prioritize habitats near or adjacent to species' historical ranges where possible, but we must ensure that the experimental population is geographically separate from other populations of the species. Furthermore, we will prioritize areas within the historical range if those areas are still capable of supporting the species and an experimental population. If climate change or other threats have made, or are likely to make, areas within historical range incapable of supporting the species and an experimental population, we will then consider areas outside of the species' historical range.

Comment 29: Some commenters stated that the idea of “historical range” is no longer relevant in a modern conservation context. They asserted that the historical range of a species may no longer be meaningful because the historical climate and historical habitat in the historical range may no longer exist.

Response: Climate change and other threats are changing the habitats of many species and species' ranges continually change over time due to many factors, such that there may be no single reference point for a species' historical range. However, historical range still provides important context to understand a species' biological needs, ecological roles, and the factors that affect it. We will still use the concept of historical range within the context of designating experimental populations to determine when it may be appropriate to assess the potential for adverse effects of introducing a species outside its historical range to the receiving ecosystems.

Comment 30: Commenters stated that the Service did not address the longstanding policy considerations and interpretations of the ESA statutory provisions that underpinned the 1984 rulemaking. The commenters indicated that we did not acknowledge our prior determination in 1984 that the purposes and policies of the ESA prohibit the transplantation of listed species beyond their historical ranges and must reconcile this interpretation with the revisions we proposed.

Response: We acknowledge that our prior 1984 determination generally prohibits the transplantation of listed species beyond their historical range. However, when the 1984 regulations were developed, we were not aware of the potential impacts of climate change that could render habitat within a species' historical range unsuitable for the species. Also, when we developed the 1984 regulations, we reserved the ability in extreme situations for transplantations outside the historical range at § 17.81(a) (see above Response to Comment 16). Through this rule change we are adjusting our regulatory authority to allow us to adequately respond to these potential scenarios in circumstances where it may not be possible to recover a species within its historical range because of loss or alteration of some or all its suitable habitat. As noted above, this final rule is consistent with our statutory authority because the only applicable requirement for an experimental population is to be “wholly separate geographically from nonexperimental populations of the same species.”

Comment 31: Several commenters believed the Service's analysis under the Regulatory Flexibility Act (RFA) and consideration of responsibilities under Executive Order (E.O.) 13132 is incorrect. The commenters also disagreed with our finding for E.O. 12630 that the proposed rule would not have significant takings implications and that a takings implication assessment is not warranted. They urged us to conduct such an assessment before finalizing the rule.

Response: Regarding E.O. 13132, the Service is the only entity that is directly affected by this rule as we are the only entity that would apply these regulations to designate experimental populations. This rule will further the goals of conservation and recovery of endangered species and threatened species. While serving to advance these legitimate government interests, this rule will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government.

Regarding E.O. 12630, no external entities, including any small businesses, small organizations, or small governments, will experience any economic impacts from this rule. Moreover, the rule change does not directly affect private property. It will not result in either a physical or regulatory taking because it will not present a barrier to all reasonable and expected beneficial uses of private property.

Finally, we note that designation of any experimental population would require a public notice-and-comment rulemaking process that would undergo individual review and analysis under the RFA and these Executive orders.

Comment 32: A few commenters stated that the Service attempts to avoid its obligations under the Unfunded Mandates Reform Act (UMRA) by failing to include local government in the development of its regulations and by failing to examine the impact of the proposed regulations on the operations of local government.

Response: The requirement to undertake an analysis under the UMRA applies only to regulations containing “Federal mandates” that meet the threshold levels under the Act. (2 U.S.C. 1532-1535.) The UMRA defines “Federal mandate” as a regulation that would impose either an enforceable duty upon State, local, or Tribal governments (Federal intergovernmental mandate) or an enforceable duty upon the private sector (Federal private sector mandate). (2 U.S.C. 658(5)-(7).) The regulatory changes in this final rule would not impose an enforceable duty on State, local, or Tribal governments, or the private sector. The only direct impact of this rule change is upon the Service because this rulemaking action pertains to the general requirements that apply when the Service exercises its authority to establish experimental populations. When the Service proposes to establish a specific experimental population, whether within or outside of historical range, we will undertake an analysis under the UMRA.

Comment 33: Some commenters asserted the need to conduct National Environmental Policy Act (NEPA) analysis on the regulation revision and that this rulemaking action should not be categorically excluded. They stated the Service is seeking to fast-track this revision by claiming a categorical exclusion under NEPA and disagreed with our finding. In particular, several commenters stated that the rule does not consider the economic and environmental harm of experimental populations that currently impact public land managers and the agriculture industry in Arizona.

Response: We have complied with NEPA by determining that the rule is covered by a categorical exclusion found at 43 CFR 46.210(i). We explained this determination in an Environmental Action Statement that is posted in the docket for this rule. This rule change sets out the overarching process and considerations that the Service undertakes when it designates an experimental population, and this rulemaking action has no significant impacts on the human environment. When the Service proposes to establish an experimental population, the proposed action will be subject to the NEPA process at that time.

Comment 34: One commenter recommended a more significant investment in environmental review when considering introduction of a species beyond its historical range. The commenter asserted that such processes should go beyond the use of the typical environmental assessment (EA) and include the compilation of an environmental impact statement (EIS) to explore and solicit input on all possible alternative actions with stakeholders. The commenter further asserted that if introduction beyond a species' historical range is targeted as the preferred action, emphasis must be placed on understanding and planning for the potential cumulative and indirect impacts of such an action.

Response: When we propose to establish an experimental population beyond a species' historical range, we will undertake a thorough analysis under NEPA and decide whether to use a categorical exclusion, an EA, or an EIS.

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

Executive Order 13563 reaffirms the principles of Executive Order 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 Executive order 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. Executive Order 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. This rule is consistent with Executive Order 13563, and in particular with the requirement of retrospective analysis of existing rules, designed “to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.”

Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 601 et seq. ), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare, and make available for public comment, a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency, or that person's designee, certifies that the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. We certify that this rule would not have a significant economic effect on a substantial number of small entities. The following discussion explains our rationale.

This rulemaking revises and clarify requirements for the Service regarding factors for establishing experimental populations under the ESA. The changes to these regulations do not expand the reach of species protections.

The Service is the only entity that is directly affected by this rule because we are the only entity that would apply these regulations to designate experimental populations. No external entities, including any small businesses, small organizations, or small governments, will experience any economic impacts from this rule. The future designation of any experimental population would require a public notice and comment rulemaking process that would include a review under the Regulatory Flexibility Act.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ):

(a) On the basis of information contained in the Regulatory Flexibility Act section above, this rule would not “significantly or uniquely” affect small governments. We have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this rule would not impose a cost of $100 million or more in any given year on local or State governments or private entities. A small government agency plan is not required. As explained above, small governments will not be affected because the rule will not place additional requirements on any city, county, or other local municipalities.

(b) This rule will not produce a Federal mandate on State, local, or Tribal governments or the private sector of $100 million or greater in any year; that is, this rule is not a “significant regulatory action”' under the Unfunded Mandates Reform Act. This rule does not impose any obligations on State, local, or Tribal governments.

In accordance with Executive Order 12630, this rule does not have significant takings implications. This rule does not pertain to “taking” of private property interests, nor will it directly affect private property. A takings implication assessment is not required because this rule (1) will not effectively compel a property owner to suffer a physical invasion of property and (2) will not deny all economically beneficial or productive use of the land or aquatic resources. This rule substantially advances a legitimate government interest (conservation and recovery of endangered species and threatened species) and will not present a barrier to all reasonable and expected beneficial use of private property.

In accordance with Executive Order 13132, we have considered whether this rule would have significant federalism effects and have determined that a federalism summary impact statement is not required. This rule pertains only to designation of experimental populations under the ESA and will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government.

This rule does not unduly burden the judicial system and meets the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Order 12988. This rule clarifies factors for designation of experimental populations under the ESA.

In accordance with Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” and the Department of the Interior's manual at 512 DM 2, we have considered possible effects of this rule on federally recognized Indian Tribes. We will continue to collaborate and coordinate with Tribes on issues related to federally listed species and their habitats. See Joint Secretary's Order 3206 (“American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act,” June 5, 1997). As discussed earlier in this document, we have revised the regulations to add a requirement for consultation with affected Tribal governments in developing and implementing experimental population rules. Any regulation promulgated pursuant to this section will, to the maximum extent practicable, represent an agreement between the Service, the affected State and Federal agencies, Tribal governments, local government agencies, and persons holding any interest in land or water that may be affected by the establishment of an experimental population.

This regulation revision does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the PRA (44 U.S.C. 3501 et seq. ). OMB has previously approved the information collection requirements associated with reporting requirements associated with experimental populations and assigned the following OMB Control Number: 1018-0095, “Endangered and Threatened Wildlife, Experimental Populations, 50 CFR 17.84” (expires 9/30/2023). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

We analyzed this regulation in accordance with the criteria of the National Environmental Policy Act (NEPA), the Department of the Interior regulations on Implementation of the National Environmental Policy Act (43 CFR 46.10-46.450), and the Department of the Interior Manual (516 DM 8).

We find that the categorical exclusion found at 43 CFR 46.210(i) applies to these regulation changes. At 43 CFR 46.210(i), the Department of the Interior has found that the following category of actions would not individually or cumulatively have a significant effect on the human environment and are, therefore, categorically excluded from the requirement for completion of an environmental assessment or environmental impact statement: Policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case. When the Service proposes to establish an experimental population for a particular species, the proposed action will be subject to the NEPA process at that time.

Executive Order 13211 requires agencies to prepare statements of energy effects when undertaking certain actions. The revised regulations are not expected to affect energy supplies, distribution, and use. Therefore, this action is not a significant energy action, and no statement of energy effects is required.

A complete list of all references cited in this rule is available upon request from the Ecological Services Office (see FOR FURTHER INFORMATION CONTACT ) or online at https://www.regulations.gov in Docket No. FWS-HQ-ES-2021-0033.

We issue this rule under the authority of the Endangered Species Act, as amended (16 U.S.C. 1531 et seq. ).

For the reasons described above, we hereby amend subpart H, of part 17, title 50 of the Code of Federal Regulations, as set forth below:

Background

This final rule concurrently announces approval of and implements Amendment 20 to the CPS FMP. The CPS FMP has used the Management Categories of “Active” (or Actively) and “Monitored” to effectively and efficiently direct available agency and Council resources, in recognition that not all stocks require as intensive management as others, e.g., frequency of assessments and changes to harvest levels. However, the Council initiated an effort to address a perceived lack of clarity regarding the meaning and use of management category terms in the CPS FMP and to promote consistency with other Council FMPs. In April 2022, the Council took final action to recommend Amendment 20 to the CPS FMP to NMFS to remove management category terms from the FMP and incorporate additional modifications in place of those terms to ensure the flow and readability of the FMP. The intent of Amendment 20 is to improve clarity regarding the management approaches for stocks in the CPS FMP and to describe how each stock is managed in a stock-specific manner, rather than through use of a categorical assignment. Amendment 20 does not change the management approaches for stocks in the CPS FMP.

We published a notice of availability (NOA) for Amendment 20 on March 23, 2023 (88 FR 17515), with a comment period ending on May 8, 2023. We published a proposed rule to implement the Amendment 20 on April 6, 2023 (88 FR 20456), with a comment period ending on May 22, 2023. We considered all public comments received on the NOA and proposed rule. See Comments and Responses section for more information. Now, on behalf of the Secretary of Commerce, we are announcing the approval of Amendment 20 and issuing this final rule implementing Amendment 20, consistent with the review and approval process outlined in section 304(a) of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq. Specifically, this final rule implements the following regulatory revisions, which are unchanged from the proposed rule: removal of the definition of “Actively Managed Species” from 50 CFR 660.502; and removal of the term “monitored stocks” from 50 CFR 660.511(k). The NOA and proposed rule for this action included additional background and details, which are not repeated here. For additional information on this action, please refer to the NOA (88 FR 17515 March 23, 2023) and proposed rule (88 FR 20456 April 6, 2023).

NMFS received two public comments—one was from an anonymous submitter and the other was a joint comment from Oceana and Earthjustice. The anonymous submitter supported the action. Oceana and Earthjustice raised other unrelated topics that they believe are issues with the FMP, having to do with the management of the central subpopulation of northern anchovy. Because the Oceana/Earthjustice comment was outside the scope of this action, we have not provided a response. After considering the public comments, NMFS made no changes from the proposed rule.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the Assistant Administrator, NMFS, has determined that this final rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities for the purposes of the Regulatory Flexibility Act. The factual basis for the certification was published in the proposed rule (88 FR 20456, April 6, 2023) and is not repeated here. As a result, a final regulatory flexibility analysis was not required and none was prepared.

This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act. There are no relevant Federal rules that may duplicate, overlap, or conflict with the final action.

For the reasons set out in the preamble, NMFS amends 50 CFR part 660 as follows: