EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0017, dated January 30, 2020, to correct an unsafe condition for all serial-numbered Wytwórnia Sprzętu Komunikacyjnego (WSK) “PZL-Świdnik” Spółka Akcyjna (S.A.) Model PZL W-3A helicopters with a Collins Aerospace (formerly Goodrich) electric hoist assembly (hoist) part number (P/N) 76378-500 having stainless steel cable P/N 712952 installed. EASA advises that occurrences were reported of cables found worn out; the damage consisted of reduction of the cable diameter near the swaged terminal. EASA states that subsequent investigation identified that the extensive cable wear was possibly caused by flickering movement of the hook assembly in the stowage position during flights. EASA further states that this condition, if not detected and corrected, could lead to reduction of the cable strength, possibly resulting in an in-flight loss of the hoist load, injury to persons, or damage to and reduced control of the helicopter.

Accordingly, EASA AD 2020-0017 requires repetitive inspections of the cable to detect cable condition and diameter restriction and based on those inspection results, either replacing parts or additional maintenance actions and reporting non-compliant inspection results to Collins Aerospace. For helicopters that do not have the affected hoist installed, EASA AD 2020-0017 allows installing an affected hoist provided that it is new (never previously installed), overhauled (never installed after overhaul), or has passed an inspection (no defect found, or defects corrected), less than 25 flight hours before installation, in accordance with the instructions of the service information.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA of the unsafe condition described in its AD. The FAA is issuing this AD after evaluating all information provided by EASA and determining the unsafe condition exists and is likely to exist or develop on other helicopters of the same type design.

The FAA reviewed Goodrich Actuation Systems Alert Service Bulletin 76378-500-25-P01, Revision 0, dated December 3, 2019 (ASB 76378-500-25-P01). ASB 76378-500-25-P01 specifies procedures to visually inspect the cable near the swaged terminal for cable diameter restriction, the hook assembly stowage force, and the hook assembly stowage at the up limit. ASB 76378-500-25-P01 also specifies corrective action and reporting certain data if the cable is not compliant due to cable diameter restriction and the results of the hook assembly stowage force inspection.

ASB 76378-500-25-P01 is an attachment to WYTWÓRNIA SPRZĘTU KOMUNIKACYJNEGO “PZL-Świdnik” Spólka Akcyjna Alert Service Bulletin No. ASB-37-19-309, dated January 28, 2020 (ASB-37-19-309). ASB 76378-500-25-P01 is incorporated by reference in this AD. ASB-37-19-309 is not incorporated by reference in this AD.

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 also reviewed ASB-37-19-309. ASB-37-19-309 specifies accomplishing repetitive visual inspections of the cable near the swaged terminal for cable diameter restriction and a one-time inspection of the hook assembly stowage force. ASB-37-19-309 also provides a reminder to accomplish the hook assembly stowage procedure after each individual hoisting operation performed in flight or on the ground.

This AD requires within 25 hours time-in-service accumulated by the hoist (hoist hours) after the effective date of this AD, and thereafter at intervals not to exceed 25 hoist hours for all PZL Model W-3A helicopters with hoist P/N 76378-500 having stainless steel cable P/N 712952 installed, inspecting the cable for wear and damage, inspecting the measurement of the diameter of the cable, and removing the cable from service or replacing the cable with an airworthy part before further hoist operation if certain criteria is met. This AD also requires following certain reinstallation steps and reporting certain information. Finally, this AD prohibits installing an affected hoist or cable unless they meet the conditions as required by this AD.

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

There are no helicopters with this type certificate on the U.S. Registry. Accordingly, notice and opportunity for prior public comment are unnecessary pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the reasons stated above, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0299 and Project Identifier MCAI-2020-00253-R” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Kristi Bradley, Aerospace Engineer, General Aviation & Rotorcraft Section, International Validation Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone 817-222-5110; email kristin.bradley@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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

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

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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

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

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, I certify that this AD:

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

2. Will not affect intrastate aviation in Alaska.

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

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0104R1 dated January 28, 2021 (EASA AD 2020-0104R1) (referred to after this as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all Airbus SAS Model A318-111, A318-112, A318-121, and A318-122 airplanes; Model A319-111, A319-112, A319-113, A319-114, A319-115, A319-131, A319-132, and A319-133 airplanes; Model A320-211, A320-212, A320-214, A320-216, A320-231, A320-232, and A320-233 airplanes; and Model A321-111, A321-112, A321-131, A321-211, A321-212, A321-213, A321-231, and A321-232 airplanes.

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 A318 series airplanes; Model A319-111, A319-112, A319-113, A319-114, A319-115, A319-131, A319-132, and A319-133 airplanes; Model A320-211, A320-212, A320-214, A320-216, A320-231, A320-232, and A320-233 airplanes; and Model A321-111, A321-112, A321-131, A321-211, A321-212, A321-213, A321-231, and A321-232 airplanes. The NPRM published in the Federal Register on October 15, 2020 (85 FR 65282). The NPRM was prompted by reports that certain oxygen supply solenoid valves are a potential source of increased flow resistance within the flightcrew oxygen system. The NPRM proposed to require a detailed inspection (flow test) of certain solenoid valves, and replacement if necessary, as specified in EASA AD 2020-0104R1.

The FAA is issuing this AD to address increased flow resistance within the flightcrew oxygen system, which could lead to a reduced flow of oxygen supply to the flightcrew oxygen masks, and in combination with in-flight depressurization, smoke in the flight deck, or a smoke evacuation procedure, could lead to flightcrew hypoxia and loss of useful consciousness, resulting in loss of control of the airplane. See the MCAI for additional background information.

In the NPRM, the FAA referred to EASA AD 2020-0104, dated May 7, 2020 (EASA AD 2020-0104). Since the NPRM was issued, EASA issued AD 2020-0104R1, which clarifies that certain solenoid valves are no longer considered affected parts.

The agency determined that no additional work is required for airplanes that have accomplished the actions as required by EASA AD 2020-0104. Therefore, the agency has revised all applicable sections in this final rule to also specify EASA AD 2020-0104R1.

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

The Air Line Pilots Association, International (ALPA) stated that it supports the NPRM.

American Airlines (AA) requested that operators be allowed to use the deviation provided in an Airbus technical adaptation for a certain solenoid valve test. The operator noted that there is a discrepancy in the Airbus service bulletin specified in EASA AD 2020-0104. The commenter explained that one of the required for compliance (RC) paragraphs in the service bulletin states that a test of the solenoid valve is required, no matter the result of the three masks flow test, but a flowchart in that service bulletin does not indicate that this test is required if the three masks flow test was successful. The commenter stated that it contacted Airbus regarding this issue and Airbus confirmed that there is an error and provided a Design Organization Approval (DOA) approved technical adaptation to address that error.

The FAA agrees with the commenter's request for the reasons provided. The FAA has added paragraph (h)(4) to this AD to allow the use of Airbus Technical Adaptation 80843604/008/2020, Issue 1, dated November 3, 2020.

United Air Lines (UAL) requested that affected parts that were inspected and passed the three masks flow test be marked. The commenter explained that this would assist operators in easily identifying an affected part that has been inspected and passed the three masks flow test. The commenter stated that this would prevent the part from being tied to a specific airplane and would allow installation of that part on another airplane.

The FAA disagrees with the commenter's request. The FAA conferred with EASA and EASA responded that allowing an affected part to become a rotable part had been discussed during development of its original proposed AD. It was determined that, because of the potential differences in the oxygen system architecture in the configuration of different airplanes, a part that successfully passed the three masks flow test on one airplane does not guarantee that an air flow deficit would not exist if that part was moved to another airplane with a different oxygen system configuration. In addition, Airbus recommended that a pass/fail label not be applied to tested valves to avoid complications in tracking parts based on the tested oxygen system configuration. For these reasons, the FAA finds that no change to this AD is necessary in regard to this issue.

UAL stated that it objected to paragraph (3), Part(s) Installation, of EASA AD 2020-0104 that was referred to in the proposed AD. The commenter stated that, in the interest of safety, an affected part should not be allowed to be installed on an airplane. The FAA infers that the commenter is requesting that the proposed AD be revised to include a Parts Installation Prohibition paragraph to prohibit operators from installing an affected part on an airplane.

The FAA does not agree with the commenter's request. The FAA has determined that if, before the next flight after installation on an airplane, an affected part passes the required flow test, the unsafe condition identified in this AD has been addressed and there is not a safety of flight issue. The FAA has not revised this AD in regard to this issue.

UAL requested that the order of certain actions identified as RC in the Airbus SAS service bulletin specified in EASA AD 2020-0104 be changed. The commenter suggested that, instead of waiting until after the failure of a test to check that the oxygen storage cylinder is fully open and then doing the test again, the check of the oxygen cylinder should be part of the test preparation. The commenter explained that this would preclude the repetition of the test.

The FAA disagrees with the commenter's request. The FAA conferred with EASA and it is presumed that the oxygen cylinder is fully open prior to starting the test. In addition, the majority of test reports provided by operators to Airbus and EASA did not identify any flow blockage. Therefore, adding the step to ensure that the oxygen cylinder is fully open would increase the work involved to accomplish each test versus doing only a check for the sole purpose of demonstrating compliance with an AD. Neither Airbus nor EASA recommend changing the order of the actions identified as RC in the Airbus SAS service bulletin and the FAA concurs. However, the FAA does not have any objection if the commenter or any operator includes a step in the test preparation to ensure that the oxygen cylinder is fully open to avoid the duplicative test identified by the commenter. The FAA has not revised this AD in regard to this issue.

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

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

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

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

EASA ADs 2020-0104 and 2020-0104R1 describe procedures for doing a detailed inspection (flow test) of certain solenoid valves using the flightcrew oxygen masks and replacing any solenoid valve that fails the flow test with a serviceable part. These documents are distinct since AD 2020-0104R1 clarifies that certain solenoid valves are no longer considered affected parts.

Airbus SAS has issued Technical Adaptation 80843604/008/2020, Issue 1, dated November 3, 2020, which specifies that, when a solenoid valve successfully passes the three masks flow test, operators do not need to do the test specified in paragraph 3.E.(1) of the Accomplishment Instructions of the Airbus SAS service information specified in EASA ADs 2020-0104 and 2020-0104R1.

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 1,100 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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 EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0122, dated May 29, 2020 (EASA AD 2020-0122) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain Airbus SAS Model A320-271N, A321-211, and A321-271N airplanes.

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 A320-271N, A321-211, and A321-271N airplanes. The NPRM published in the Federal Register on September 17, 2020 (85 FR 58014). The NPRM was prompted by reports of missing OHSC X-fixation brackets or brackets that were incorrectly installed during assembly. The NPRM proposed to require a special detailed inspection of the OHSC X-fixation brackets for missing or incorrectly installed brackets, and installation or replacement if necessary; or modification of each OHSC, as specified in an EASA AD.

The FAA is issuing this AD to address this condition, which could lead to OHSC failure under certain loading conditions, and possibly result in injury to occupants and impede egress during an emergency evacuation. See the MCAI for additional background information.

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

Delta Air Lines (DAL) requested that the FAA allow the use of a borescope as an alternative device to the endoscope for the inspection of the OHSC X-fixation brackets as specified in paragraph (1) of EASA AD 2020-0122. DAL stated that Airbus has provided its concurrence in Airbus Technical Request 80838467/006, dated October 15, 2020.

The FAA agrees that use of a borescope to do this inspection will provide an adequate level of safety. The FAA has added paragraph (h)(3) to this AD, which allows for the use of a borescope for the inspection of the OHSC X-fixation brackets required in this AD.

DAL requested that the FAA add an exception to paragraph (h) of the proposed AD to disregard the description of the bin assembly. DAL commented that where paragraph 3.C.1(b) through 3.C.1(ae) of the referenced modification service information specified in paragraph (3) of EASA AD 2020-0122 states to “replace bin assembly 1F FL EE” (and other bin assemblies), the bin assembly description is information only and does not point to a location on the airplane. DAL commented that Airbus has provided its concurrence in Airbus Technical Request 80838467/006, dated October 15, 2020.

The FAA agrees that the bin assembly identifier, such as “1F FL EE,” is related to the bin assembly description in the referenced modification service information specified in EASA AD 2020-0122. The bin assembly identifiers are provided for information only. The FAA does not agree with removing these references for the bin assemblies because they describe the part that correlates with the part number. Further, the FAA has verified with Airbus that Airbus tech request 80838467/006, dated October 15, 2020, does not recommend removing the part description. However, the FAA has clarified use of the bin assembly identifiers in paragraph (h)(4) of this AD.

DAL requested that the FAA clarify that the OHSC housing must be reidentified only one time although the service information referenced in paragraph (3) of EASA AD 2021-0122 specifies to reidentify the OHSC housing at each bin assembly replacement step. DAL stated that Airbus confirmed in Airbus Technical Request 80838467/006, dated October 15, 2020, that each OHSC housing has more than one bin assembly, so the reidentification step is needed only one time for the OHSC housing, not when each bin assembly is replaced.

The FAA agrees with the commenter. The complete OHSC module, which mainly consists of one housing, one or more bins, the light cover, and one or more air outlets, has one part number. Only one identification label is needed for the whole module, and the bins have their own identification labels with their own part numbers. The FAA has revised this AD to add paragraph (h)(5) of this AD to clarify that the OHSC module is a one-time reidentification no matter how many bins have been modified.

DAL requested that the FAA add an exception to paragraph (h) of the proposed AD explaining that the part number of the COMPARTMENT ASSY may be disregarded if it is not installed on the airplane, as long as the OHSC X-fixation brackets are replaced as specified in paragraph (3) of EASA AD 2020-0122. DAL stated that the part numbers of the COMPARTMENT ASSY can be mismatched due to differences in the airplane applicability; therefore, mismatched part numbers in this step occur when the COMPARTMENT ASSY in the airplane are removed. DAL stated that Airbus has provided its concurrence in Airbus Technical Request 80838467/006, dated October 15, 2020.

The FAA disagrees with the commenter's request. An AD may not require actions on a part or component that is not installed on the airplane. Any COMPARTMENT ASSY installed after the effective date of this AD must be in compliance with the requirements of this AD. The COMPARTMENT ASSY is reidentified using the referenced modification service information specified in EASA AD 2020-0122. When the COMPARTMENT ASSY is reidentified, the referenced modification service information shows the list of the old and new part numbers to address the re-identified parts. The FAA has not revised this AD in this regard.

DAL requested that the proposed AD include certain equivalencies for the Ref. Tasks identified in the referenced inspection service information specified in EASA AD 2020-0122. DAL stated that the Ref. Task identified in the referenced inspection service information specified in EASA AD 2020-0122 specifies that the actions be accomplished “in accordance with” a specific Ref. Task. DAL stated that Airbus has provided its concurrence in Airbus Technical Request 80838467/006, dated October 15, 2020.

The FAA agrees to revise this AD to include certain equivalencies for the Ref. Tasks identified in step 3.C.1(c) of the referenced inspection service information specified in EASA AD 2020-0122. The FAA has included the Ref. Task equivalencies in paragraphs (h)(6)(i) through (xvi) of this AD.

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

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

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

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

EASA AD 2020-0122 specifies procedures for a special detailed inspection of the OHSC X-fixation brackets for missing or incorrectly installed brackets, and corrective actions (installation or replacement OHSC X-fixation brackets) if necessary; or modification of each OHSC by installing new X-fixation brackets and reidentifying the OHSC housing. 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 estimates the following costs to do any necessary on-condition action that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need this on-condition action:

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

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

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

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

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

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

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

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

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

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0034, dated February 14, 2019 (EASA AD 2019-0034) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all Airbus Helicopters Model SA341G and SA342J helicopters. Although EASA AD 2019-0034 applies to all Model SA341G and SA342J helicopters, this AD applies to helicopters with an affected part installed instead.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Helicopters Model SA341G and SA342J helicopters. The NPRM published in the Federal Register on December 28, 2020 (85 FR 84275). The NPRM was prompted by the determination that a new life limit was necessary for certain TRBs. The NPRM proposed to require replacing certain TRBs, re-identifying certain TRBs, and repairing certain other TRBs, as specified in an EASA AD.

The FAA is issuing this AD to address TRBs that might break, resulting in loss of tail rotor control and consequent loss of control of the helicopter. See the MCAI for additional background information.

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

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

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

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

EASA AD 2019-0034 describes procedures for replacing TRBs having certain part numbers, re-identifying TRBs having a certain part number and certain serial numbers, and repairing TRBs that have been reworked/repaired/modified before being re-identified.

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

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

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

This rule amends 14 CFR part 97 by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary. This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, CFR part 97, (is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

This rule amends 14 CFR part 97 by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, 8260-15B, when required by an entry on 8260-15A, and 8260-15C.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers or aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the typed of SIAPS, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flights safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CRF part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

Background

The Act (Pub. L. 115-59; 42 U.S.C. 405 note), which was signed on September 15, 2017, restricts Federal agencies from including individuals' SSNs on documents sent by mail, unless the head of the agency determines that the inclusion of the SSN on the document is necessary (section 2(a) of the Act). The Act requires agency heads to issue regulations specifying the circumstances under which inclusion of a SSN on a document sent by mail is necessary. These regulations, which must be issued not later than five years after the date of enactment, shall include instructions for the partial redaction of SSNs where feasible, and shall require that SSNs not be visible on the outside of any package sent by mail (section 2(b) of the Act). This final rule revises the Department regulations under FOIA (subpart A, 15 CFR part 4) and the Privacy Act (subpart B, 15 CFR part 4), consistent with these requirements in the Act. This final rule also clarifies the language of procedural requirements pertaining to the inclusion of SSNs on documents that the Department sends by mail; makes clarifying updates by changing the term “Privacy Officer” to “Privacy Act Officer” where it occurs in Subpart B of 15 CFR part 4, and by changing the term “FOI Officer” to “FOIA Officer” in several places in Appendix B.; and updates an office name by changing the phrase “Assistant General Counsel for Employment, Litigation, and Oversight” to “Assistant General Counsel for Employment, Litigation, and Information” where it occurs in part 4.

The Office of the Secretary received four general comments on the proposed rule from members of the public. The comments on the proposed rule can be viewed and downloaded at the following link: https://www.regulations.gov/document/DOC-2020-0001-0001. No changes have been made to the regulatory text of the proposed rule in response to these four comments. The following are our responses to the comments.

Comment 1: I haven't received my stimulus check. I want to check my information and update my information.

Response: This comment is not addressed, as it is not within the scope of this action to amend the Department's regulations in order to implement the Act.

Comment 2: Noting concerns about fraud and criminal activity, a commenter stated that SSNs should be allowed to be used only for social security. The commenter stated that a company wanting to do business with you should assign an account number to serve as your identification, rather than request and use your personal information, including your SSN, and that this needs to be put into law.

Response: The Act is a law that restricts the inclusion of SSNs on Federal documents sent by mail. This final rule implements the Act by making changes to the Department's regulations, which state that the collection of SSNs on Federal documents by mail must be required or authorized by law, or must be deemed by the agency to be necessary for fulfilling a compelling business need of the agency. To the extent that this comment addresses the enactment of laws or the conduct of businesses and other entities, the comment is not applicable to this action amending the Department's regulations.

Comment 3: Noting concerns about privacy and potential identity theft, another commenter agreed with the proposed rule, but requested the listing out of specific circumstances in which the inclusion of a SSN on a document is necessary. The commenter stated that the SSN should not appear on any document, because ensuring that the SSN does not appear on the envelope is not enough to guarantee that the information will not be stolen. The commenter also asked why the Act allows a five-year period for implementation, and notes that the Act should be implemented sooner.

Response: The Department has policies and procedures in place for justifying the collections, maintenance, and uses of SSNs, as well as for maintaining an inventory of forms collecting SSNs, and for safeguarding the SSNs. The Department also has policies and procedures in place for eliminating the unnecessary collections, maintenance, and uses of SSNs. The Act requires Federal agencies with Chief Financial Officers to issue regulations, and the rationale for such determination, not later than five years after enactment. We note that the question regarding the Congress' reasons for including a five-year implementation period in the Act is beyond the scope of this final rule. However, this final rule will fully implement the Act's requirements in advance of the prescribed statutory five-year period.

Comment 4: One commenter stated that protecting American's identities needs to be a high concern of the United States government. With the advancement of technology, it is becoming easier for individuals to engage in identity fraud through SSNs. Therefore, the SSN should not be sent by the Federal government through mail. Many citizens are awaiting their stimulus checks, and criminals may be looking to steal checks that are mailed.

Response: The Act requires Federal agencies with Chief Financial Officers to issue regulations specifying the circumstances under which the inclusion of the SSN is necessary on a mailed document. The regulations must include instructions for partial redaction of the SSN where feasible and a requirement that the SSN not be visible on the outside of any mail. The Department has policies and procedures in place for eliminating the unnecessary collections, maintenance, and uses of SSNs. The comment regarding the potential theft of stimulus checks is not addressed, as it is not within the scope of this action to amend the Department's regulations in order to implement the Act.

This final rule makes no changes to the regulatory text of the proposed rule.

This final rule has been determined to be not significant for purposes of review under Executive Order 12866. In accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Chief Counsel for Regulation has reviewed this rule and certified that this regulation, if implemented, will not have a significant economic impact on a substantial number of small entities. This rule is largely procedural in nature, and, therefore, will not affect requesters. This regulation does not contain a collection of information as defined by the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.

For the reasons stated in the preamble, the Department of Commerce amends Subparts A and B of 15 CFR part 4 as follows:

I. Background on the Kentucky Program II. Submission of the Amendment III. OSMRE's Findings IV. Summary and Disposition of Comments V. OSMRE's Decision VI. Statutory and Executive Order Reviews I. Background on the Kentucky Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Kentucky program on May 18, 1982. You can find background information on the Kentucky program, including the Secretary's findings, the disposition of comments, and conditions of approval, in the May 18, 1982 Federal Register (47 FR 21404). You can also find later actions concerning the Kentucky program and program amendments at 30 CFR 917.11, 917.12, 917.13, 917.15, 917.16, and 917.17.

By letter dated January 29, 2015 (Administrative Record No. KY-2001), the Kentucky Department for Natural Resources (KYDNR) submitted to OSMRE an amendment to the Kentucky program under SMCRA. Kentucky proposed to establish, as it relates to underground mines, and amend, as it relates to surface mines, permit application requirements for an operator seeking to mine land with severed surface and mineral estates. Under the existing rule, if there is no conveyance expressly granting or reserving the right to extract coal by surface mining methods or no surface owner consent, then the applicant is nonetheless able to obtain a permit by submitting documentation that, under applicable state law, the applicant has the legal authority to extract coal by those methods. The additional, Kentucky requirement found in the existing rule -that the applicant also provide a copy of the original instrument of severance upon which the applicant bases his right to extract coal by surface mining methods—has been removed. Without the additional Kentucky requirement that Kentucky proposed to remove, the rule now mirrors and is consistent with Federal regulations.

We announced receipt of the proposed amendment in the June 12, 2015, Federal Register (80 FR 33456). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. The public comment period ended on July 13, 2015. We did not hold a public hearing or meeting because one was not requested. We received comments from one commenter. Those comments are addressed in the Public Comments section, part IV, Summary and Disposition of Comments, below.

The following are the findings we made concerning the proposed Kentucky amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17, which govern OSMRE approval of state programs and program amendments. We are approving the amendment as described below. The full text of the approved amendment is available online at https://www.regulations.gov/.

SMCRA allows for state regulatory authorities to promulgate rules no less effective and no less stringent than the Federal regulations. In addition, under Ky. Rev. Stat. section 13A.120(1)(a) ( Promulgation of administrative regulations—Prohibitions concerning promulgations ), administrative regulations may be no more stringent than Federal law or regulations.

Kentucky proposed to revise section 4(2) of 405 KAR 8:030 for surface coal mining permits and to establish a new section 4(2) in 405 KAR 8:040 for underground coal mining permits. As required by SMCRA, these regulations would establish administrative regulations that are as effective as, but no less stringent than, those required under Federal law.

In accordance with the KYDNR's stated intent, section 4(2) of 405 KAR 8:030 is being amended to modify a permit applicant's proof of legal right of entry and right to mine requirements. An identical provision is established as section 4(2) of 405 KAR 8:040 relating to underground mines. The amendment, as approved, removes the language in existing section 4(2)(c) (405 KAR 8:030), which requires submission of a copy of the original severance instrument as a means to establish a legal right of entry and right to mine the mineral estate. An additional revision moves the existing proviso, that the regulation does not authorize the cabinet to adjudicate property rights disputes, into a new subsection, found at section 4(3), with no modification to the existing language.

We note that the language in section 4(2) of 405 KAR 8:030 and section 4(2) of 405 KAR 8:040 is substantively identical and, for this reason, this final rule addresses them as one. Kentucky's proposed amendment language is also substantively identical to that found in 30 CFR 778.15. However, the existing version of section 4(2) in 405 KAR 8:030 requires an additional element that the proposed version does not: It requires each applicant to submit a copy of the original instrument of severance upon which the applicant bases his right of entry and right to extract coal by surface mining methods. This requirement does not appear in SMCRA or its implementing regulations and, as a result, the existing provision imposes an additional obligation than that which SMCRA and its implementing regulations require. This additional requirement in existing 405 KAR 8:030 makes it more stringent than 30 U.S.C. 1260(b)(6) and 30 CFR 778.15. Kentucky's proposed amendment removes this additional requirement from the existing State regulations at 405 KAR 8:030 and also ensures the requirements of Ky. Rev. Stat. section 13A.120, that does not allow administrative regulations to be more stringent than the Federal law or regulations, are conformed with.

We find that Kentucky's proposed amendment complies with the requirement that state regulations be no less stringent than and no less effective than the Federal regulations found at 30 CFR 778.15. Therefore, we are approving Kentucky's proposed amendment.

We asked for public comments on this amendment in a proposed rule published in the Federal Register on June 12, 2015 (80 FR 33456). OSMRE received one set of comments from Appalachian Citizens' Law Center, Inc. (ACLC) on July 13, 2015. Each of the ACLC's comments are summarized and addressed below.

The ACLC contends that OSMRE cannot approve the proposed amendment as Kentucky's submission is, according to ACLC, incomplete and procedurally defective.

The ACLC contends that Kentucky's submission fails to acknowledge or explain how the proposed amendment would achieve the State's intent of “clarify[ing] the process by which an entity submits proof of right of entry procedures on proposed coal mine sites with severed minerals.” (Administrative Record No. KY-2001). In addition, the ACLC argues that the KYDNR's submission fails to explain what effect the proposed changes would have in administering the Kentucky program as well as whether those proposed changes, if approved, would render the Kentucky program no less stringent than SMCRA and no less effective than the Federal regulations.

Further, the ACLC claims that additional documentation, received through information requests, identifies the KYDNR's actual intent in submitting the proposed amendment. The ACLC contends that the KYDNR has been administering changes to its program, without OSMRE's approval, through guidance referred to as the Kentucky Reclamation Advisory Memorandum, or RAM-159.

OSMRE Response: The amendment to Kentucky's program modifies the requirements that an applicant must submit to demonstrate legal right of entry and right to mine on proposed coal mine sites with severed minerals. The current version of section 4(2) of 405 KAR 8:030, is more stringent than 30 CFR 778.15 because it requires each applicant to submit a copy of the original instrument of severance upon which the applicant bases his right of entry and right to extract coal by surface mining methods. The requirement to submit a copy of the original instrument of severance in the current Kentucky regulations is not in SMCRA or in the Federal regulations and is more stringent than the Federal equivalents. The changes to existing regulation clearly remove the requirement that is more stringent than Federal law. This change is consistent with the Kentucky law that requires its administrative regulations to be no more stringent than Federal laws or regulations. See Ky. Rev. Stat. 13A.120(1)(a). Because section 4(2) of 405 KAR 8:030 as modified is now substantively identical to the Federal regulation at 30 CFR 778.15, we find that it is no less stringent that SMCRA and no less effective than the Federal regulations.

We acknowledge the stated intent in RAM-159. A RAM is intended to be “an open correspondence from the commissioner of the Department for Natural Resources (DNR) to operators and other interested persons that provides information related to DNR's surface mining regulatory program.” RAM 159 does not modify state law but is intended to provide the regulatory authority with internal guidance for the implementation of the State program. Under 30 CFR 732.17, states are required to submit changes to its laws immediately as an amendment, but this kind of internal guidance does not change State law.

The ACLC contends that Kentucky's interpretation and proposed changes, when read as a whole, would bring 30 U.S.C. 1260(b)(6)(A) and (C) into conflict and remove language OSMRE previously determined to meet the requirements in 30 U.S.C. 1260(b)(6)(C). By removing the requirement that an application provide “the original instrument of severance” under the proposed section 4(2)(C), the ACLC argues this change would create an unintended loophole. The ACLC states that removing the language would broaden the requirement in a manner inconsistent with SMCRA, thereby allowing the KYDNR to circumvent the requirement to obtain written consent from all surface owners. According to the ACLC, this change would no longer specify that state law is to be applied only when determining the surface-subsurface legal relationship, but would instead allow the KYDNR to issue SMCRA permits under subsection (c) based upon a single surface owner's consent deemed as sufficient for right of entry under state law. The ACLC cites to the KYDNR's RAM-159 as support for this contention.

OSMRE Response: KYDNR's RAM 161, dated June 25, 2015, updates and modifies previously issued RAMs 159 and 160. RAM 161 explains how the Division of Mine Permits will apply those provisions of RAMs 159 and 160 relating to identification of property ownership, to renewals, transfers and mined out areas.

ACLC's concern—that the change brings 30 U.S.C. 1260(b)(6)(A) and 1260(b)(6)(C) into disharmony and renders 30 U.S.C. 1260(b)(6)(A) superfluous—ignores the plain language of SMCRA and OSMRE's implementing regulation. 30 U.S.C. 1260(b)(6)(A), (B), and (C) are presented in the disjunctive. An applicant need only submit documentation satisfying one of them. If the applicant has the written consent from the surface owner ( i.e., subsection A), then he or she need only submit documentation reflecting that consent. If the applicant has a conveyance that expressly grants or reserves the right to extract coal ( i.e., subsection B), then he or she need only submit that documentation. If the applicant cannot satisfy either A or B, then he or she may proceed under subsection C, which provides that if a conveyance does not expressly grant the right to extract coal, state law may be consulted. See M.L. Johnson Family Properties, LLC v. Bernhardt, 924 F.3d 842, 852 (6th Cir. 2019) (“Reading the subsections harmoniously, however, does not mandate such a narrow interpretation of subsection (C). An equally harmonious interpretation is that when an applicant has neither the consent of all surface owners, as allowed under subsection (A), nor an express conveyance, as allowed under subsection (B), it may establish a right to surface mine through any other method “in accordance with State law” under subsection (C). That interpretation does not create any inconsistencies between the three subsections.”).

Consistent with 30 U.S.C. 1260(b)(6)(C), the Kentucky amendment provides in section 4(2) of both Kentucky regulations that if “the conveyance does not expressly grant the right to extract the coal by surface mining methods,” then he or she may submit “documentation that under applicable state law, the applicant has the legal authority to extract coal by surface mining methods.” This presents no conflict under Kentucky law, where unanimous consent of the surface holders is not required. M.L. Johnson Family Properties, 924 F.3d at 852-853; see also Johnson v. Environmental and Public Protection Cabinet, 289 SW3d 216, 219-220 (Ky. App. 2009) (holding that “a cotenant ha[s] the right to begin strip mining operations on . . . property despite objections from another cotenant.”). As stated above, subsection (C) provides an applicant with an alternate right of entry, which is dependent on State law.

The ACLC contends that SMCRA's text and legislative history requires determination of the “the surface-subsurface legal relationship” in accordance with state law. From this, the commenter suggests that 30 CFR 778.15(b)(3) requires documentation that under applicable State law, the applicant has the legal authority to extract the coal by those methods. The ACLC states that Kentucky has no State statute or regulation that requires KYDNR to demand a demonstration that “the surface-subsurface legal relations” for the proposed permit area, determined in accordance with Kentucky law, implicitly authorizes the mineral owner's right to surface mine the permit area.

OSMRE Response: The language of the proposed amendment is substantively identical to the comparable Federal rule found in 30 CFR 778.15, and it is unambiguous. Consulting the legislative history of the regulation is therefore unnecessary. M.L. Johnson Family Properties, 924 F.3d at 852-853 (“The text of subsection (C), then, is quite clear: When a conveyance does not expressly grant the right to surface mine, the regulatory authority may rely on any state law to determine whether the documents describing the surface-subsurface legal relationship of the severed estate grant such a right. Because subsection (C) is plain and unambiguous, our analysis ends where it began: With the statutory text. We need not consider Johnson's lengthy citations to conflicting legislative history.” (citation omitted)). Further, the fact that the Kentucky regulation as amended mirrors the Federal rule, which itself tracks closely with the text of the corresponding SMCRA provision, is indicative that the amendment is no less stringent than SMCRA and is no less effective than the Federal regulations.

On April 21, 2017, pursuant to 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA (30 U.S.C. 1253(b)), we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Kentucky program (Administrative Record No. KY-2002). We did not receive any comments.

Under 30 CFR 732.17(h)(11)(ii), we are required to obtain a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). This proposed amendment does not pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. However, on April 21, 2017, under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on the proposed amendment (Administrative Record No. KY-2002). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on any proposed amendment that may have an effect on historic properties. On April 21, 2017, we requested comments on Kentucky's proposed amendment (Administrative Record No. KY-2002). We did not receive any comments.

Based on the above findings, we approve Kentucky's January 29, 2015 proposed amendments. To implement this decision, we are amending the Federal regulations, at 30 CFR part 917, that codify decisions concerning the Kentucky program. In accordance with the Administrative Procedure Act (5 U.S.C. 553), this rule will take effect 30 days after the date of publication. Section 503(a) of SMCRA (30 U.S.C. 1253(a)) requires that the State's program must demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. SMCRA requires consistency of State and Federal standards.

This rule would not affect a taking of private property or otherwise have taking implications that would result in public property being taken for government use without just compensation under the law. Therefore, a takings implication assessment is not required. This determination is based on an analysis of the corresponding Federal regulations.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance, dated October 12, 1993, the approval of State program amendments is exempted from OMB review under Executive Order 12866. Executive Order 13563, which reaffirms and supplements Executive Order 12866, retains this exemption.

The Department of the Interior has reviewed this rule as required by section 3(a) of Executive Order 12988. The Department has determined that this Federal Register document meets the criteria of section 3 of Executive Order 12988, which is intended to ensure that the agency review its legislation and regulations to minimize litigation; and that the agency's legislation and regulations provide a clear legal standard for affected conduct, rather than a general standard, and promote simplification and burden reduction. Because section 3 focuses on the quality of Federal legislation and regulations, the Department limited its review under this Executive order to the quality of this Federal Register document and to changes to the Federal regulations. The review under this Executive order did not extend to the language of the State regulatory program or to the program amendment that Kentucky drafted.

This rule has potential federalism implications as defined under Section 1(a) of Executive Order 13132. Executive Order 13132 directs agencies to “grant the States the maximum administrative discretion possible” with respect to Federal statutes and regulations administered by the States. Kentucky, through its approved regulatory program, implements and administers SMCRA and its implementing regulations at the state level. This rule approves an amendment to the Kentucky program submitted and drafted by the State, and thus is consistent with the direction to provide maximum administrative discretion to States.

The Department of the Interior strives to strengthen its government-to-government relationship with Tribes through a commitment to consultation with Tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on federally recognized Tribes or on the distribution of power and responsibilities between the Federal Government and Tribes. Therefore, consultation under the Department's tribal consultation policy is not required. The basis for this determination is that our decision is on the Kentucky program, which does not include Tribal lands or regulation of activities on Tribal lands. Tribal lands are regulated independently under the applicable, approved Federal program.

Executive Order 13211 requires agencies to prepare a Statement of Energy Effects for a rulemaking that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not a significant energy action under the definition in Executive Order 13211, a Statement of Energy Effects is not required.

This rule is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.

Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 1251(a) and 1292(d), respectively) and the U.S. Department of the Interior Departmental Manual, Part 516, section 13.5(A), State program amendments are not major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

Section 12(d) of the National Technology Transfer and Advancement Act (15 U.S.C. 3701 et seq. ) directs OSMRE to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. (OMB Circular A-119 at p. 14). This action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with SMCRA.

This rule does not include requests and requirements of an individual, partnership, or corporation to obtain information and report it to a Federal agency. As this rule does not contain information collection requirements, a submission to the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) is not required.

This rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The State submittal, which is the subject of this rule, is based upon corresponding Federal regulations for which an economic analysis was prepared, and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the corresponding Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based on an analysis of the corresponding Federal regulations, which were determined not to constitute a major rule.

This rule does not impose an unfunded mandate on State, local, or Tribal governments, or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. This determination is based on an analysis of the corresponding Federal regulations, which were determined not to impose an unfunded mandate. Therefore, a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

For the reasons set out in the preamble, 30 CFR part 917 is amended as set forth below:

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

On January 19, 2021 (86 FR 5086), the EPA proposed to approve the following rule into the California SIP.

We proposed to approve this rule because we determined that it complies with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.

The EPA's proposed action provided a 30-day public comment period. During this period, we received two (2) anonymous comments in support of the rule.

No comments were submitted that change our assessment of the rule as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving this rule into the California SIP. The August 1, 2014 version of Rule 3.14 replaces the previously approved version of this rule in the SIP.

In this rule, 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 FRAQMD rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 25, 2021. 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).)

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Publishing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under section 408(g) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2020-0478 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before June 25, 2021. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2020-0478, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

EPA, on its own initiative, in accordance with FFDCA sections 408(e) and 408(l)(6) of, 21 U.S.C. 346a(e) and 346a(1)(6), is establishing time-limited tolerances for residues of flupyradifurone in or on sugarcane, cane at 3 parts per million (ppm) and sugarcane, molasses at 90 ppm. These time-limited tolerances expire on December 31, 2023.

Section 408(l)(6) of FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on FIFRA section 18 related time-limited tolerances to set binding precedents for the application of FFDCA section 408 and the safety standard to other tolerances and exemptions. Section 408(e) of FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Section 18 of FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” EPA has established regulations governing such emergency exemptions in 40 CFR part 166.

The Louisiana Department of Agriculture and Forestry (LDAF) asserts that an emergency condition exists in accordance with the criteria for approval of an emergency exemption and has utilized a crisis exemption under FIFRA section 18 to allow the use of flupyradifurone for control of sugarcane aphid infestations in Louisiana sugarcane. According to LDAF, the sugar industry is vital to Louisiana's economy and sugarcane aphids which were once sporadic in the state are now widespread as outbreaks have become more frequent in recent years. After having reviewed the crisis exemption, EPA concurred on the 15-day stand-alone emergency action, which expired on August 5, 2020.

As part of its evaluation of the crisis exemption, EPA assessed the potential risks presented by residues of flupyradifurone in or on sugarcane, cane at 3 ppm and sugarcane, molasses at 90 ppm. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and EPA decided that the necessary tolerance under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing this tolerance without notice and opportunity for public comment as provided in FFDCA section 408(l)(6). Although these time-limited tolerances expire on December 31, 2023, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on sugarcane after that date will not be unlawful, provided the pesticide was applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by these time-limited tolerances at the time of that application. EPA will take action to revoke these time-limited tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Because these time-limited tolerances are being approved under emergency conditions, EPA has not made any decisions about whether flupyradifurone meets FIFRA's registration requirements for use on sugarcane or whether permanent tolerances for this use would be appropriate. Under these circumstances, EPA does not believe that this time-limited tolerance decision serves as a basis for registration of flupyradifurone by a State for special local needs under FIFRA section 24(c). Nor does this tolerance by itself serve as the authority for persons in any State other than Louisiana to use this pesticide on the applicable crops under FIFRA section 18 absent the issuance of an emergency exemption applicable within that State. For additional information regarding the emergency exemption for flupyradifurone, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT .

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Consistent with FFDCA section 408(b)(2)(D) and the factors specified therein, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure expected as a result of this emergency exemption request and the time-limited tolerances for residues of flupyradifurone on sugarcane, cane at 3 ppm and sugarcane, molasses at 90 ppm.

On September 23, 2016 (81 FR 65552) (FRL-9951-68) and August 21, 2020 (85 FR 51668-51672) (FRL-10010-98), EPA published final rules that established tolerances for residues of flupyradifurone in or on multiple commodities based on the Agency's determination that aggregate exposure to flupyradifurone resulting from the residues subject to those tolerances is safe for the U.S. general population, including infants and children. The toxicity profile for flupyradifurone has not changed since the September 23, 2016 (81 FR 65552) (FRL-9951-68) rule was published, therefore EPA is relying upon the discussion of that profile (Unit III.A.) and the identified toxicological endpoints (Unit III.A.) and the identified toxicological endpoints (Unit III B.), as part of this rulemaking.

EPA's most recent exposure assessment for flupyradifurone appears in the comprehensive risk assessment dated June 30, 2020 and entitled: “Flupyradifurone: Human Health Risk Assessment for Uses on Grass Forage Fodder and Hay Group 17, Pineapple, Rapeseed Subgroup 20A, Sesame Seed, Stalk and Stem Vegetable Subgroup 22A (except Prickly Pear Pads and Prickly Pear Texas Pads), Sunflower Subgroup 20B, Sweet Sorghum, Tropical and Subtropical Palm Fruit Edible Peel Subgroup 23C, Crop Group Expansions/Conversions of Tolerances to Brassica Leafy Greens Subgroup 4-16B, Leafy Greens Subgroup 4-16A, Leaf Petiole Vegetable Subgroup 22B, Tropical and Subtropical Inedible Peel Cactus Subgroup 24D, Vegetable Brassica Head and Stem Group 5-16 and Establish Individual Tolerances on Lettuce, Fennel Florence, Kohlrabi; and Coffee,” as that assessment included dietary and aggregate exposures to flupyradifurone in or on multiple agricultural and non-agricultural commodities that are complete except for exposures due to the emergency use addressed in this document.

For aggregate risk assessment, risk estimates resulting from food, drinking water, and residential uses are combined. Acute, short-and intermediate-term, and long-term (chronic) aggregate assessments were performed for flupyradifurone. Further information about EPA's risk assessment and determination of safety supporting the tolerances established in the August 21, 2020 final rule can be found at http://www.regulations.gov in the document entitled “Flupyradifurone: Human Health Risk Assessment for Uses on Grass Forage Fodder and Hay Group 17, Pineapple, Rapeseed Subgroup 20A, Sesame Seed, Stalk and Stem Vegetable Subgroup 22A (except Prickly Pear Pads and Prickly Pear Texas Pads), Sunflower Subgroup 20B, Sweet Sorghum, Tropical and Subtropical Palm Fruit Edible Peel Subgroup 23C, Crop Group Expansions/Conversions of Tolerances to Brassica Leafy Greens Subgroup 4-16B, Leafy Greens Subgroup 4-16A, Leaf Petiole Vegetable Subgroup 22B, Tropical and Subtropical Inedible Peel Cactus Subgroup 24D, Vegetable Brassica Head and Stem Group 5-16 and Establish Individual Tolerances on Lettuce, Fennel Florence, Kohlrabi; and Coffee,” dated June 30, 2020 (docket ID EPA-HQ-OPP-2019-0460).

EPA conducted unrefined and slightly refined chronic dietary analyses for all current uses of flupyradifurone together with the emergency use in or on sugarcane, cane and sugarcane, molasses. The assessments incorporated tolerance-level residues, average residues (chronic), 2018 default or empirical processing factors, conservative drinking water estimates, and assumed that 100% of the proposed crops were treated. The results of the acute and chronic analyses do not exceed the Agency's level of concern (LOC). That is, <100% of the acute population adjusted dose (aPAD) or <100% of the chronic population adjusted dose (cPAD) are not of concern for the general U.S. population and all population subgroups. At the 95th percentile of exposure, the acute dietary (food and drinking water) risk estimates utilized 24% of the aPAD for the general U.S. general population and utilized 39% the aPAD for children 1 to 2 years old, the most highly exposed population subgroup. The chronic dietary (food and drinking water) risk estimates utilized 29% of the cPAD for the U.S. population and utilized 68% of the cPAD for children 1 to 2 years old, the group with the highest exposed population subgroup.

The aggregate exposure assessment for flupyradifurone is based on food and drinking water as well as residential uses. Neither intermediate- nor long-term (chronic) residential exposures are expected, so only a short-term aggregate assessment was conducted. Aggregate short-term residential exposure to adults and children (residential exposures to handlers and post-application exposures to adults and children) with the chronic (background) dietary exposure yields margins of exposure MOEs of 300 for adults and 220 for children); neither is of concern because EPA considers MOEs of less than 100 to be of concern for aggregate risk.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the U.S. general population, or to infants and children from aggregate exposure to flupyradifurone residues. More detailed information on the subject action to establish time-limited tolerances in or on sugarcane, cane and sugarcane, molasses can be found at http://www.regulations.gov in the document entitled “Flupyradifurone: Human Health Risk Assessment for Section 18 Emergency Exemption Request for Use on Sugarcane in Louisiana.” This document can be found in docket ID number EPA-HQ-OPP-2020-0478.

An adequate enforcement methodology (Method RV-001-P10-03) is available to enforce the tolerance expression. This method uses high-performance liquid chromatography with tandem mass spectrometry [HPLC/MS/MS) to quantitate residues of flupyradifurone in various crops is available for enforcement.

These methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Road, Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

There are no Codex and Canadian MRLs established on sugarcane.

Therefore, time-limited tolerances are established for residues of flupyradifurone in or on sugarcane, cane at 3 ppm and sugarcane, molasses at 90 ppm. These tolerances expire on December 31, 2023.

This action establishes tolerances under FFDCA sections 408(e) and 408(l)(6). The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs”) 82 FR 9339, February 3, 2017. This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established in accordance with FFDCA sections 408(e) and 408(l)(6), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, but does not directly regulate states or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:

I. The Debt Collection Improvement Act of 1996

To maintain the remedial impact of civil monetary penalties (CMPs) and to promote compliance with the law, the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410) was amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134) to require Federal agencies to regularly adjust certain CMPs for inflation and further amended by the Federal Civil Penalties Inflation Adjustment Act Improvement Act of 2015 (Sec. 701 of Pub. L. 114-74). As amended, the law requires each agency to make an initial inflationary adjustment for all applicable CMPs, and to make further adjustments at least once every year thereafter for these penalty amounts. The Debt Collection Improvement Act of 1996 further stipulates that any resulting increases in a CMP due to the calculated inflation adjustments shall apply only to violations which occur after the date the increase takes effect, i.e., thirty (30) days after date of publication in the Federal Register . Pursuant to the 2015 Act, agencies are required to adjust the level of the CMP with an initial “catch up”, and make subsequent annual adjustments for inflation. Catch up adjustments are based on the percent change between the Consumer Price Index for Urban Consumers (CPI-U) for the month of October for the year of the previous adjustment, and the October 2015 CPI-U. Annual inflation adjustments will be based on the percent change between the October CPI-U preceding the date of adjustment and the prior year's October CPI-U.

In 1986, sections 6103 and 6104 of the Omnibus Budget Reconciliation Act of 1986 (Pub. L. 99-501) set forth the Program Fraud Civil Remedies Act of 1986 (PFCRA). Specifically, this statute imposes a CMP and an assessment against any person who, with knowledge or reason to know, makes, submits, or presents a false, fictitious, or fraudulent claim or statement to the Government. The General Services Administration's regulations, published in the Federal Register (61 FR 246, December 20, 1996) and codified at 41 CFR part 105-70, set forth a CMP of up to $10,781 for each false claim or statement made to the agency. Based on the penalty amount inflation factor calculation, derived from originally dividing the June 2015 CPI by the June 1996 CPI and making the CPI-based annual adjustment thereafter, after rounding we are adjusting the maximum penalty amount for this CMP to $11,001 per violation.

In developing this final rule, we are waiving the usual notice of proposed rulemaking and public comment procedures set forth in the Administrative Procedure Act, 5 U.S.C. 553 (APA). The APA provides an exception to the notice and comment procedures when an agency finds there is good cause for dispensing with such procedures on the basis that they are impracticable, unnecessary, or contrary to the public interest. We have determined that under 5 U.S.C. 553(b)(3)(B) good cause exists for dispensing with the notice of proposed rulemaking and public comment procedures for this rule. Specifically, this rulemaking comports and is consistent with the statutory authority set forth in the Debt Collection Improvement Act of 1996, with no issues of policy discretion. Accordingly, we believe that opportunity for prior comment is unnecessary and contrary to the public interest, and we are issuing these revised regulations as a final rule that will apply to all future cases under this authority.

Executive Orders (E.O.s) 12866 and 13563 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a not significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

The Office of Management and Budget (OMB) has reviewed this final rule in accordance with the provisions of E.O. 12866 and has determined that it does not meet the criteria for a significant regulatory action. As indicated above, the provisions contained in this final rulemaking set forth the inflation adjustments in compliance with the Debt Collection Improvement Act of 1996 for specific applicable CMPs. The great majority of individuals, organizations and entities addressed through these regulations do not engage in such prohibited conduct, and as a result, we believe that any aggregate economic impact of these revised regulations will be minimal, affecting only those limited few who may engage in prohibited conduct in violation of the statute. As such, this final rule and the inflation adjustment contained therein should have no effect on Federal or state expenditures.

The Administrator of General Services certifies that this final rule will not have a significant economic impact on a substantial number of small business entities. While some penalties may have an impact on small business entities, it is the nature of the violation and not the size of the entity that will result in an action by the agency, and the aggregate economic impact of this rulemaking on small business entities should be minimal, affecting only those few who have engaged in prohibited conduct in violation of statutory intent.

This final rule imposes no new reporting or recordkeeping requirements necessitating clearance by OMB.

Accordingly, 41 CFR part 105-70 is amended as set forth below:

In the May 11, 2018 Federal Register (83 FR 21912), we published an interim final rule with comment period (IFC) titled “Medicare Program; Durable Medical Equipment Fee Schedule Adjustments to Resume the Transitional 50/50 Blended Rates to Provide Relief in Rural Areas and Non-Contiguous Areas”. The May 2018 IFC made technical amendments to the regulation to reflect the extension of the transition period from June 30, 2016 to December 31, 2016 that was mandated by the 21st Century Cures Act for phasing in fee schedule adjustments for certain durable medical equipment (DME) and enteral nutrition furnished in areas not subject to the Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) Competitive Bidding Program (CBP) (83 FR 21915). In addition, in the May 2018 IFC, CMS—(1) amended 42 CFR 414.210(g) to resume the transition period's blended fee schedule rates for items furnished in rural areas and non-contiguous areas (Alaska, Hawaii, and United States territories) not subject to the CBP from June 1, 2018 through December 31, 2018 (83 FR 21915); (2) made technical amendments to existing DMEPOS regulations to reflect the exclusion of infusion drugs used with DME from the DMEPOS CBP (83 FR 21919); and (3) stated that the fee schedule amounts for wheelchair accessories and back and seat cushions used in conjunction with group 3 power wheelchairs would continue to be based on the unadjusted fee schedule amounts updated by the covered item update specified in section 1834(a)(14) of the Act (83 FR 21919). We stated that the fee schedule amounts for all other accessories used with different types of base equipment would continue to be calculated in accordance with the adjustment methodology set forth in §  414.210(g)(5) of our regulations (83 FR 21919).

Section 1871(a)(3)(B) of the Act requires CMS to publish a Medicare final rule no later than 3 years after the publication of a proposed or interim final rule, except under exceptional circumstances. In such circumstances, section 1871(a)(3)(B) of the Act allows the Secretary to vary the final regulation publication timeline if the Secretary provides public notice of the different timeline on which it intends to publish the final regulation, and that notice includes a brief explanation of the justification for the variation. The notice must be published by no later than the timeline previously established with respect to the final rule publication date.

The May 2018 IFC was published on May 11, 2018. Therefore, in accordance with section 1871(a)(3)(B) of the Act, we must finalize the May 2018 IFC by May 11, 2021, except under exceptional circumstances. We will not be able to finalize the May 2018 IFC within the required 3-year timeline for publication (by May 11, 2021) for the following reasons:

In the November 4, 2020 Federal Register (85 FR 70358), we published a proposed rule titled “Medicare Program; Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) Policy Issues and Level II of the Healthcare Common Procedure Coding System (HCPCS)” (hereinafter DMEPOS and HCPCS proposed rule). In the DMEPOS and HCPCS proposed rule (85 70373), we stated that we solicited comments on the 2018 Interim Final Rule, but because we have not yet responded to the comments we received, we are signaling our intent to do so in the final rule.

On January 20, 2021, the Assistant to the President and Chief of Staff issued a memorandum concerning “Regulatory Freeze Pending Review” (“Regulatory Freeze memorandum”). 1 The Office of Management and Budget (OMB) issued Memorandum M-21-14 on January 20, 2021, providing guidance on implementing the Regulatory Freeze memorandum. 2 The Regulatory Freeze memorandum seeks to ensure that the President's appointees or designees have the opportunity to review any new or pending rules. Paragraph 1 of the Regulatory Freeze memorandum directs agencies, subject to any exceptions the Director of the OMB allows for emergency situations or other urgent circumstances relating to health, safety, environmental, financial, or national security matters, or otherwise, to propose or issue no rule in any manner—including by sending a rule to the Office of the Federal Register—until a department or agency head appointed or designated by the President after noon on January 20, 2021, reviews and approves the rule. Additionally, paragraph 3 of the Regulatory Freeze memorandum describes the agency option to temporarily postpone agency rules to permit review by an agency head appointed or designated by the President after noon on January 20, 2021.

In light of our efforts to comply with the Regulatory Freeze memorandum, and to allow policy officials in the new administration the opportunity to review the DMEPOS and HCPCS proposed rule and May 2018 IFC, we do not believe we will have sufficient time to finalize the IFC, and relatedly the DMEPOS and HCPCS proposed rule, by the May 11, 2021 deadline. As a result of these exceptional circumstances, we are issuing this notification of continuation and extending the timeline for finalizing the May 2018 IFC by 1 year. This extension will grant policy officials the opportunity to review the DMEPOS and HCPCS proposed rule and the May 2018 IFC. In accordance with section 1871(a)(3)(C) of the Act, this notification of continuation also ensures that the May 2018 IFC continues in effect beyond May 11, 2021. As a result of the publication of this notification of continuation, the timeline for publication of the final rule will be treated as having been extended until May 11, 2022.

Previous Federal Actions

On December 27, 2017, we published in the Federal Register (82 FR 61230) a 12-month finding and proposed rule to list the Yangtze sturgeon ( Acipenser dabryanus ) as an endangered species under the Act. A thorough review of the taxonomy, life history, ecology, and overall viability of the Yangtze sturgeon is also presented in the species status assessment (SSA) for the Yangtze sturgeon (Service 2017; available at http://www.regulations.gov at Docket No. FWS-HQ-ES-2017-0047), and a summary of this information, including the history of previous federal actions, a summary of the species' description, taxonomy, biology, life history, habitat, distribution, and historical and current population, is provided in our December 27, 2017, proposed rule (82 FR 61230).

We received one comment from a peer reviewer providing additional information regarding ongoing and new conservation efforts on the Yangtze River, which include lengthening fishing bans within the species' range and the commencement of restocking efforts on reaches below Gezhouba Dam. We have incorporated this information into this rule and have updated our species status assessment (SSA) report.

A species status assessment team prepared an SSA report for the Yangtze sturgeon. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we sought peer review of the SSA report. The Service sent the SSA report to six independent peer reviewers and received two responses. The purpose of peer review is to ensure that our listing determinations are based on scientifically sound data, assumptions, and analyses. The peer reviewers have expertise in the biology, habitat, and threats to the species.

Presented below is a brief summary of the species' description, life history, distribution, and historical and current population. A more detailed examination of the information can be found in our SSA and proposed rule (Service 2017, entire; 82 FR 61230, December 27, 2017).

The Yangtze sturgeon is a freshwater fish species that attains a maximum size of around 130 centimeters (4.3 feet (ft)) and a maximum weight of about 16 kilograms (35 pounds) (Billiard and Lecointre 2000, p. 368; Zhuang et al. 1997, pp. 257, 259). The species has a triangular head, an elongated snout, and large blowholes (Gao et al. 2009b, p. 117). Yangtze sturgeons have tactile barbels at the front of their mouths that they use to dig for food. On the dorsal side, Yangtze sturgeons are dark gray, brownish-gray, or yellow-gray in color. The rest of the body is milky white in color (Zhuang et al. 1997, p. 259).

Although the Yangtze sturgeon's life history is similar to other sturgeon species, there are key differences. Based on the best available information, much of what is known about the Yangtze sturgeon's life history comes from research on the more numerous and studied Chinese sturgeon due to similarities in morphology, taxonomy, and life history between the two species. Yangtze sturgeons spawn in the spring from March to April, with a smaller late fall/early winter spawning period occurring from October to December (Qiwei 2010, p. 3; Gao et al. 2009b, p. 117; Kynard et al. 2003, p. 28). Spawning migration begins when water level, flow velocity, and silt content enters a downward trend (Zhang H. et al. 2012, p. 4).

Juvenile sturgeons disperse around 100 to 200 kilometers (km) (62 to 124 miles (mi)) downstream from their spawning ground and arrive in backwater pools and sandy shallows with low velocity flow and rich mud and sand substrate where they feed on insects, aquatic plants, and small fish (Zhang et al. 2011, p. 184; Zhuang et al. 1997, p. 259). During the spring flood on the main stem of the Yangtze River, juveniles will move to the tributaries to feed. Young sturgeons will remain in these feeding reaches until they reach maturity (4 to 6 years for males and 6 to 8 years for females) after which they begin migrating upstream towards the spawning ground during the spring flood (Zhuang et al. 1997, p. 261).

As its name implies, the Yangtze sturgeon is found in the Yangtze River (Wu et al. 2014, p. 5). The river is more than 6,397 km (3,975 mi) in length and is divided into three segments. The upper reach, which spans a total of about 4,300 km (2,671 mi), is further sub-divided into two segments: The Jinsha River segment, which stretches from the headwater in Yushu in the Tibetan Plateau to Yibin, a distance of about 2,300 km (1,429 mi), and the upper Yangtze River, which stretches from Yibin to the Three Gorges region at Yichang, a distance of about 1,000 km (621 mi) (Cheng et al. 2015, p. 571; Jiang et al. 2008, p. 1471; Fu et al. 2003, p. 1651). The middle reach is from Yichang to Hukou, a distance of about 950 km (590 mi). The Yangtze River widens in this segment and is identified by multiple large lakes, including Lake Dongting and Lake Poyang. The lower reach stretches from Hukou to the mouth of the river at Shanghai, a distance of about 930 km (577 mi) (Fu et al. 2003, p. 1651).

Historically, the Yangtze sturgeon was found in the lower portion of the Jinsha River and the upper, middle, and lower reaches of the Yangtze River, a distance of about 1,300 km (807 mi) (Wu et al. 2014, p. 5). The majority of historical sightings occurred in the lower Jinsha and upper Yangtze River with occasional sightings in the middle and lower Yangtze (Zhuang et al. 1997, p. 259). The species has also been found in major tributaries that feed into the upper Yangtze including the Min, Tuo, and Jialing (Artyukhin et al. 2007, p. 370). There have also been sightings of the species in Dongting Lake and Poyang Lake in the middle and lower reaches, respectively (Zhuang et al. 1997, p. 259). One sighting took place as far downstream as Anhui province, a distance of more than 2,000 km (1,242 mi) downstream from Yibin (Zhuang et al. 1997, p. 261). The species' spawning reach is understood by Yangtze sturgeon researchers to have occurred from Maoshui in the lower Jinsha River to Hejiang in the upper Yangtze River (Zhang et al. 2011, p. 184).

The Yangtze sturgeon's current range has been reduced to the upper Yangtze River and its tributaries in the reaches between Yibin and Yichang, a distance of about 1,000 km (621 miles) (Wu et al. 2014, p. 5; Dudgeon 2010, p. 128; Huang et al. 2011, p. 575; Zhang et al. 2011, p. 181; Artyukhin et al. 2007, p. 370). The completion of the Gezhouba Dam in 1981 at Yichang prevented the upstream migration of adults to the species' spawning ground (Zhuang et al. 1997, p. 261). As a result of the construction of Gezhouba Dam, the species may have been extirpated in reaches below the dam (Li et al. 2015, p. 186; Zhu et al. 2008, p. 30). That said, from 2014-2017, fishermen below Gezhouba Dam accidentally captured four adult Yangtze sturgeons, suggesting the presence of a very small remnant population (Du 2017, pers. comm.). The construction of the Three Gorges Dam and its reservoir, which began in 2003 and was completed in 2009, further reduced the species' range by modifying reaches above Three Gorges Dam to a lentic (still water) system (Chen D. et al. 2009, p. 341; Fu et al. 2003, p. 1650). Loss of lotic (rapidly moving water) ecosystem reduces the quality of remaining habitat for the species (Kynard 2016, pers. comm.; Cheng et al. 2015, pp. 570, 576). On the lower Jinsha River, in the upstream portion of the species' historical range, the construction of the Xiangjiaba Dam, which was completed in 2008, limited the species' spawning ground to areas below the dam (Zhang et al. 2011, pp. 183-184). The species continues to ascend the major tributaries in the upper Yangtze, including the Min, Tuo, and Jialing River (Huang et al. 2011, p. 575; Artyukhin et al. 2007, p. 370).

The Yangtze sturgeon was historically abundant and was commercially harvested up to the 1970s (Lu et al. 2015, p. 89; Zhang et al. 2013, p. 409; Kynard et al. 2003, p. 27). The majority (80 percent) of harvest of Yangtze sturgeon took place during the 1950s to the 1970s. However, overharvesting during this time period led to a sharp decline in the population size (Kynard et al. 2003, p. 27).

While there may have been natural recruitment of the species in the 1990s, no natural recruitment has been observed in the wild since the 2000s (Du et al. 2014, p. 1; Wu et al. 2014, p. 1). The population is currently being repopulated by artificial restocking. Between the years of 2010-2013, 7,030 Yangtze sturgeon juveniles were released into the middle and upper Yangtze River in two to three batches each year (Wu et al. 2014, p. 3). Restocking efforts have been ongoing in the reaches below Gezhouba Dam since 2014 (Hu 2017, pers. comm.). However, restocked sturgeons suffer from low fitness; most notably, they lack the ability to survive to reproductive age. Capture data obtained from the releases in 2010-2013 found that 95 days after restocking, no restocked sturgeons were caught either by researchers or by fishermen in the upper Yangtze River (Wu et al. 2014, pp. 3-5). These results indicate that restocked sturgeon have a very low survival rate. Although we do not have population estimates for the species, based on the fact that there has been no observable natural reproduction since the 2000s and the low survival rate of restocked sturgeon, the species' population in the Yangtze River is likely to be very low when compared to historical numbers (Du et al. 2014, p. 1; Wu et al. 2014, p. 4).

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an endangered species or a threatened species. The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an “endangered species” or a “threatened species” because of any of the following factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.

However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.

The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term foreseeable future extends only so far into the future as the Services can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.

It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

Our proposed rule described “foreseeable future” as the extent to which we can reasonably rely on predictions about the future in making determinations about the future conservation status of the species. The Service since codified its understanding of foreseeable future at 50 CFR 424.11(d) (84 FR 45020, August 27, 2019). In those regulations, we explain the term “foreseeable future” extends only so far into the future as the Service can reasonably determine that both the future threats and the species' responses to those threats are likely. The Service will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species' life-history characteristics, threat-projection timeframes, and environmental variability. The Service need not identify the foreseeable future in terms of a specific period of time. These regulations did not significantly modify the Service's interpretation; rather they codified a framework that sets forth how the Service will determine what constitutes the foreseeable future based on our long-standing practice. Accordingly, although these regulations do not apply to the final rule for the Yangtze sturgeon because it was proposed prior to their effective date, they do not change the Service's assessment of foreseeable future for the Yangtze sturgeon as contained in our proposed rule and in this final rule.

The SSA report documents the results of our comprehensive biological status review for the species, including an assessment of the potential threats to the species. The SSA report does not represent a decision by the Service on whether the species should be listed as an endangered or threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket FWS-HQ-ES-2017-0047 on http://www.regulations.gov.

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

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. This process used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision.

Below, we review the biological condition of the species and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability.

The topography of the upper Yangtze River basin is characterized by mountains of varying heights. The change in elevation between the upper Yangtze to the lower Yangtze amounts to 3,280 meters (m) (10,761 feet (ft)), which makes the upper Yangtze River an ideal place for hydroelectric projects (Fan et al. 2006, p. 33). The growth of dam construction in China has accelerated during the past decades. From the 1970s to the 1990s, an average of 4.4 large reservoirs (capacity greater than 0.1 kilometers 3 (km 3 )) were constructed per year. By the 2000s, this number had increased to an average construction rate of 11.8 large reservoirs per year. By 2011, China possessed 552 large reservoirs, 3,269 medium reservoirs (capacity of 0.01-0.1 km 3 ), and 84,052 small reservoirs (capacity of 0.0001-0.01 km 3 ); of this number, the Yangtze River basin contained 45,000 dams and reservoirs, including 143 dams having large reservoirs, or a quarter of all large reservoirs in China (Miao et al. 2015, p. 2350; Mueller et al. 2008, p. 233). The construction of dams and reservoirs have multiple and broad effects on the Yangtze sturgeon and its habitat, including limiting connectivity between spawning and feeding reaches; altering water temperature, water discharge, and velocity rates; and changing sediment concentration.

Dam construction on Yangtze River limits the ability of the Yangtze sturgeon to migrate between spawning and feeding reaches. Dam construction on the Yangtze occurs on both the upstream and downstream portion of the species' current range. In the middle Yangtze River, the construction of Gezhouba Dam in 1981 prevented adults downstream of the dam from being able to migrate to the species' spawning ground in the upper Yangtze near Yibin (Miao et al. 2015, p. 2351; Dudgeon 2010, p. 128; Fang et al. 2006, p. 375; Zhuang et al. 1997, p. 261). Although the reaches below Gezhouba Dam might be suitable for the species, at present there has been no observed natural reproduction below Gezhouba Dam (Du 2017, pers. comm.). In addition to Gezhouba Dam, the construction of the Three Gorges Dam in 2003 created a reservoir that affected individuals of the species upstream. The Three Gorges Dam reservoir, which extends 600 km upstream from the dam, transformed the area into unsuitable habitat for Yangtze sturgeon (Kynard 2016, pers. comm.; Cheng et al. 2015, p. 570; Miao et al. 2015, p. 2351). As a result of the construction of the reservoir, the species now rarely swims downstream to reaches below Chongqing. The result is the species' current range is concentrated in the 500-km reach between the Yibin and Chongqing (Wu et al. 2015, p. 5).

Meanwhile, in the upstream portion of the species' range, the construction of Xiangjiaba Dam on the lower Jinsha River segment occurred on part of the historical spawning reach of the Yangtze sturgeon. Xiangjiaba Dam is a barrier to all fish species and prevents migration to areas above or below the dam (Wu et al. 2014, p. 2). However, the species may be able to use spawning reaches below the dam (Fan et al. 2006, p. 36). That said, a dam located upstream from the species' habitat affects the species downstream by altering water temperature and sedimentation rate, which we discuss below (Fan et al. 2006, p. 36).

In addition to dams currently present on the lower Jinsha and upper Yangtze River, in the early 2000s, a proposal was presented for the construction of the Xiaonanhai Dam, which would be located upstream from Chongqing. If built, this dam would create a barrier between the species' last known spawning ground and feeding reach, which, depending on design, could have a significant negative impact on the species (Cheng et al. 2015, p. 579). However, at present, China's Ministry of Environmental Protection has rejected the proposal and any future dam projects on the last stretch of free-flowing Yangtze River due to environmental impacts (Chang 2016, pers. comm.; Kynard 2016, pers. comm.; Mang 2015, unpaginated).

While the rejection of the proposal to construct the Xiaonanhai Dam will allow continued connectivity between the spawning and feeding reach for the Yangtze sturgeon, the country's twelfth 5-year plan stated that renewable resources should make up 15 percent of all energy generated in China with 9 percent coming from hydroelectric sources. This plan translates to an additional 230 gigawatts (GW) of power generated via hydroelectric dams. This target is a very ambitious one, given that Three Gorges Dam generates 18 GW of power per year (Dudgeon 2011, p. 1496). Furthermore, although the plan to construct the Xiaonanhai Dam has been rejected, plans to construct dams on the Jinsha River as part of a 12-dam cascade are still proceeding (Dudgeon 2010, p. 129).

Dams negatively affect the reproductive success of Yangtze sturgeon by altering water temperature flowing through the species' habitat. Water temperature influences the reproductive success of the Yangtze sturgeon at two stages in its life cycle: Commencement of spawning migration and egg survival. Spawning migration of the Yangtze sturgeon will not start until the water temperature reaches 18 degrees Celsius (°C) (64.4 degrees Fahrenheit (°F)) (Cheng et al. 2015, p. 578). Historically, before the construction of the Xiangjiaba and other dams on the lower Jinsha, the water temperature reached 18 °C (64.4 °F) around April. However, the construction of the dams stratified the water table. As most dams on the Yangtze are designed to release cold water located at the bottom of the dams, the spawning season for the Yangtze sturgeon could be delayed by more than a month (Deng et al. 2006 and Wang et al. 2009, as cited in Cheng et al. 2015, p. 578). This delay shortens the maturing season for juveniles and is likely to reduce the species' survival rate. Additionally, if the water remains too cold for too long, sturgeon eggs will not mature, resulting in total loss of reproduction for that season (Kynard 2016, pers. comm.).

By altering discharge rates, dams affect the Yangtze sturgeon's reproductive success by affecting the timing of spawning migration. The species' spawning migration begins when flow rate increases during the spring flood (Zhuang et al. 1997, p. 261). At Yichang, the most downstream portion of the Yangtze sturgeon's current range, the mean discharge rate from 1983 to 2004 (before the construction of Three Gorges Dam) was between 10,000 m 3 per second (/s) and 17,000 m 3 /s. After the construction of the Three Gorges Dam, mean flow rate varies between 6,414 m 3 /s in low flow years to 12,780 m 3 /s in high flow years (Chen and Wu 2011, p. 384). For Chinese sturgeon, successful spawning occurs when water discharge is between 7,000 and 26,000 m 3 /s. This means that although the flow rate during high flow years remains in the optimal discharge rate for Chinese sturgeon spawning, discharge rates during low flow years are below the flows needed for spawning, and thus are likely to have a negative impact on spawning success rates (Chen and Wu 2011, p. 385). Given the similarities in the genetic and life history between the Yangtze and Chinese sturgeon, the reduction in discharge rate is likely to negatively affect the spawning success rate of the Yangtze sturgeon on reaches below the Three Gorges Dam as well.

While we do not have long-term historical data for the optimal water discharge rate for the Yangtze sturgeon at Yibin, the flow rate at Chongqing during the years 1950-2000 was between 4,540 m 3 /s and 11,000 m 3 /s (Zhang et al. 2011, p. 183). Since Chongqing is farther upstream from Yichang, this flow rate may be the river's natural rate at this section of the Yangtze. However, following the impoundment by the Xiangjiaba Dam in October 2012 and the Xiluodo Dam in May 2013, discharge in the lower Jinsha has declined more than 50 percent, suggesting that the current flow rate is likely to be lower than the flow rate between 1950 and 2000 (Cheng et al. 2015, p. 577). The Jinsha River feeds into the upper Yangtze River. This means that a reduction in flow rate on the Jinsha will also reduce the flow rate on the upper Yangtze River. Given that the Yangtze sturgeon is closely related to the Chinese sturgeon, a reduction of flow rate by over 50 percent could have a significant negative impact on the reproductive success rate of the Yangtze sturgeon given its already tenuous biological status.

In addition to affecting spawning of Yangtze sturgeon, dams affect the condition of the species' spawning ground through changes in the water velocity and sedimentation load. Because reproductive success of sturgeon is tied to the amount of suitable habitat, a reduction in habitat area can reduce the reproductive success of the species (Ban et al. 2011, p. 96; Bemis and Kynard 1997, p. 169). Specifically, flow rates affect the Yangtze sturgeon by affecting the sedimentation concentration in the water and on the riverbed. As noted before, Yangtze sturgeon lay their eggs on the interstitial spaces between rocks and boulders. The makeup of the riverbed needs to contain the right concentration of small pebbles and larger boulders to provide sufficient space for adherence and aeration of the eggs (Du et al. 2011, pp. 261-262; Bemis and Kynard 1997, p. 169).

Historically, discharge rates and sedimentation load were aligned with precipitation rates: A low discharge rate results in a low sedimentation load, while high discharge rates lead to a higher sediment load, as high flows are able to transport more sediments downstream (Chen Z. et al. 2001, pp. 88-89). However, with dams constructed along the lower Jinsha and Yangtze Rivers, discharge rate and sedimentation rate have become misaligned. While discharge rates typically remain aligned with the precipitation rate, the sedimentation load pattern displays a 2-month delay due to sediment being trapped behind the dams. When the spring flood occurs, numerous dams release highly concentrated sediment downstream all at once, resulting in an asymmetrical sediment load pattern (Chen Z. et al. 2001, p. 90). The effects of sediment load patterns on the species' habitat occur at two stages: Release of sediments during high river stages and reduced sediment size and load over time (Dudgeon 2011, pp. 1488, 1495).

The Jinsha River dams trap up to 82 percent of the sediment during the winter months, resulting in “clean” ( i.e., sediment-free) water flowing downstream. This “clean” water lacks nutrients and may decrease the food supply for the Yangtze sturgeon over the winter months (Cheng et al. 2015, p. 578). During the subsequent spring flood, the release of concentrated sediment from dams likely results in sediment filling in all the interstitial spaces in the spawning habitat, thereby reducing available spawning habitat for that season.

Despite the spring release of concentrated sediments, sediment load is expected to decline over time. At Yichang, sediment load per year has decreased from 530 Megatonnes (Mt) (530 million metric tons) per year in the 1950s-1960s, to 60 Mt (60 million metric tons) per year after 2003. Additionally, suspended sediment at Yichang below Three Gorges Dam has decreased in size from 8-10 micrometers in 1987-2002 to 3 micrometers after 2003 (Yang et al. 2011, pp. 16-17). Reduction in sediment size can lead to increased embeddedness of available interstitial space, which prevents the adherence of eggs to the river bottom and reduces the quality of remaining spawning habitats. At the reaches below Gezhouba Dam, sedimentation has reduced available interstitial space by as much as 50 to 70 percent (Du et al. 2011, p. 262).

Dam construction in the middle Yangtze and lower Jinsha has restricted the species' range to the reaches of the Yangtze between Yibin and Yichang (Wu et al. 2014, p. 5). These projects prevented the migration of the species upstream and downstream of the dams. Although there is currently access between the species' remaining spawning and feeding grounds, the condition of the remaining habitat is likely to be negatively affected by changes to the river flow and sedimentation rate. The formation of the Three Gorges reservoir has transformed the 600-km reach above the dam into a lentic (still water) system, resulting in unsuitable habitat for the species (Kynard 2016, pers. comm.; Cheng et al. 2015, pp. 570, 576). As a result, Yangtze sturgeon rarely use habitat downstream from Chongqing (Wu et al. 2014, p. 5).

Upstream from the species' current range, the construction of the Xiluodu and Xiangjiaba Dams are likely to negatively affect the reproductive success of the Yangtze sturgeon. Through the release of cold water during the spring flood, the dam can delay the spawning migration of the sturgeon, which will shorten the maturation time for juveniles and possibly prevent the successful maturation of eggs altogether (Kynard 2016, pers. comm.; Cheng et al. 2015, p. 578). Alteration to sediment concentration in both the short term and long term reduces the quality of remaining habitat (Du et al. 2011, p. 262). Given the lack of observed natural reproduction of the species in the upper Yangtze, present and future dam construction could significantly affect the viability of the species.

Historically, the Yangtze sturgeon was commercially harvested on the Yangtze River. In the 1970s, 5,000 kilograms (5.5 tons) of Yangtze sturgeons were caught in the spring season at Yibin (Zhuang et al. 1997, p. 262). Since then, however, the population of Yangtze sturgeon has declined significantly (Zhang et al. 2013, p. 409). There are multiple reasons for this decline: Fishermen use fine mesh nets that prevent smaller fish, weighing as little as 50 grams (1.7 ounces), from being able to escape; the number of fishing boats in the Yangtze River increased from 500 in the 1950s to 2,000 by 1985; and more than 140,000 fishermen currently depend on the river for a living. Furthermore, the fishing season historically overlapped with the main spawning season of the Yangtze sturgeon (Yi 2016, p. 1; Fan et al. 2006, p. 37; Zhuang et al. 1997, p. 262). The replacement of bamboo and reed gear with gear made from synthetic fibers further contributed to a higher catch rate of sturgeons (Chen D. et al. 2009, p. 346).

Despite attempts to help conserve the species by restocking, restocked juveniles experience very low survival rates (Wu et al. 2014, p. 4). From 2010 to 2013, restocking operations released 7,030 juveniles into the upper Yangtze River main stem. Subsequent bycatch between 2010 and 2013 recorded a total of 112 sturgeons caught, indicating a very low survival rate of stocked juveniles (Wu et al. 2014, p. 3). These results suggest that although other factors also played a role in low survival rate of juveniles, the existing bycatch rate continues to put pressure on the survival of the species (Wu 2016, pers. comm.; Wu et al. 2014, p. 4).

To reproduce successfully, the Yangtze sturgeon requires the river substrate to contain a suitable concentration of sediment (Du et al. 2011, p. 257). Alteration of the riverbed has reduced the reproductive success of this species. To improve navigation on the lower Jinsha and upper Yangtze River, multiple projects, including sand and gravel extraction operations, were implemented on the reaches between Shuifu and Yibin, and Yibin and Chongqing (Zhang et al. 2011, p. 184). Between 2005 and 2009, $44 million (converted to U.S. dollars) were invested to improve the navigation between Yibin and Chongqing. These investments have led to the modification of 22 riffles (a shallow section of a stream or river with rapid current and a surface broken by gravel, rubble, or boulders) on the upper Yangtze and the deepening of the channel from 1.8 m (5.9 ft) to 2.7 m (8.8 ft) (Zhang et al. 2011, p. 184). Additionally, up to 10, 6, and 3 river dredge ships operate in the Yangtze River, the Jinsha River, and the Min River, respectively. The operations of these ships alter the bottom topography of the riverbeds, which results in the loss of benthic (bottom-dwelling) habitat and spawning ground for many fish species, including the Yangtze sturgeon (Fan et al. 2006, p. 37). These projects are occurring on or near current Yangtze sturgeon spawning and feeding grounds from Yibin to Hejiang. Thus, these operations will continue to reduce the quality and quantity of remaining habitat (Zhang et al. 2011, p. 184).

As a benthic predator, the Yangtze sturgeon is exposed to higher concentrations of industrial pollution than many other fish species (Yujun et al. 2008, pp. 341-342). While we are not aware of any studies that analyze the impacts of industrial pollution on Yangtze sturgeon specifically, there have been studies on Chinese sturgeon and other sturgeon species. Industrial pollutants such as triphenyltin (TPT) affect the reproductive success of the Chinese sturgeon. TPT, used in paint on ship hulls and in fishnets in China, can be absorbed into the eggs of Chinese sturgeon, resulting in increased deformities, including abnormal development and skeletal and morphological deformities in embryos (Hu et al. 2009, pp. 9339-9340).

A study on TPT exposure to 2- to 3-day-old Chinese sturgeon larvae found that 6.3 percent showed skeletal/morphological deformities and 1.2 percent had no eyes or only one eye. At the same time, larvae from spawning hatches of captured adults showed skeletal/morphological deformities of 3.9 percent and 1.7 percent that had only one eye or no eyes. Given the rate of deformities found in this study, reproduction in the studied Chinese sturgeon was reduced by 58.4 to 75.9 percent (Hu et al. 2009, p. 9342). Because the Yangtze and Chinese sturgeon are closely related species, the presence of TPT in the upper Yangtze River is likely reducing the reproductive success of the Yangtze sturgeon at a similar rate.

In addition to TPT, the presence of endocrine disruptor compounds (EDC) affects Chinese sturgeon by inducing declining sperm activity, intersex testis-ova, and a decline in the male to female ratio in the population (An and Hu 2006, p. 381). A study on EDC found that the concentration of EDC in the Yangtze River from industrial discharge (1.55 to 6.85 micrograms per liter) is very high and could have a detrimental impact on sturgeon in the river.

As a result of rapid industrialization along the Yangtze River, higher concentrations of heavy metals are found in the river (Yujun et al. 2008, p. 338). A high concentration of heavy metals leads to greater accumulation of these metals in all aquatic organisms (Yujun et al. 2008, p. 339). The toxicity effect of heavy metal accumulation is especially pronounced in zoobenthic predators, like the Yangtze sturgeon, because they occupy a higher position in the food chain. The result is that by consuming smaller prey species that have absorbed heavy metal, zoobenthic predators accumulate heavy metals inside their bodies (Yujun et al. 2008, p. 346). Given that the heavy metal concentration is highest in benthic animals, especially zoobenthic predators like the sturgeon, the effect of heavy metals on the sturgeon could be more pronounced than in other aquatic species (Yujun et al. 2007, p. 341; An and Hu 2006, p. 381). Despite the known impacts on captured Chinese sturgeon, we currently do not have evidence of population-level impacts of EDC or heavy metals on the wild Yangtze sturgeon population. That said, even though we have no evidence of morphological deformities in wild sturgeon, it is likely that industrial pollution does have an effect on the reproductive success of wild sturgeon.

Despite the decline in wild fishery yields, the Yangtze basin remains one of the major centers of China's aquaculture industry. Fishery yields from the basin account for 65 percent of total freshwater fisheries production in China (Shen et al. 2014, p. 1547; Chen D. et al. 2009, p. 338). In the past 30 years, sturgeon aquaculture in China has risen significantly. Although commercial aquaculture for sturgeon only started in the 1990s, by 2006, production had reached 17,424 tons, which accounts for 80 percent of the world total production (Shen et al. 2014, p. 1548). The growth of the aquaculture industry in China saw aquaculture farms constructed across all branches of the Yangtze River (Li R. et al. 2009, p. 636). Sturgeon species that are commonly used in the aquaculture industry include the Amur sturgeon ( Acipenser schrenckii ), kaluga ( Huso dauricus ), and other Amur River sturgeon hybrids (Li R. et al. 2009, p. 636). However, none of these commonly cultured species is native to the Yangtze River. The existing fishing management regulations are not adequate to address the threat of hybridization, and the regulations that do exist are not enforced. In particular, non-native aquaculture sturgeon and hybridized aquaculture sturgeon are escaping from sturgeon farms into the wider river system (Li R. et al. 2009, p. 636). The result is a comingling of native, exotic, and hybrid sturgeon species which could have a negative impact on the Yangtze sturgeon (Shen et al. 2014, p. 1549; Li R. et al. 2009, p. 636).

Currently, no aquaculture efforts in China use native strains of sturgeon. Because no farms in China focus on raising native stock in large enough numbers, this system creates shortages of parental stock of native sturgeon. In response to this shortage, farmers crossbreed wild-caught sturgeon with any sturgeon species available, including nonnative species (Xiong et al. 2015, p. 658; Li R. et al. 2009, p. 636). For example, in 2006, there was a shortage of Siberian sturgeon ( Acipenser baerii ) in China. Farmers then started crossbreeding Siberian sturgeon with Russian sturgeon ( A. gueldenstaedtii ), Sterlet sturgeon ( A. ruthenus ), and Amur sturgeon ( A. schrenckii ) (Li R. et al. 2009, p. 636). Crossbreeding of sturgeon species in China alters the makeup of the wild population. Of the 221 young sturgeons captured on the Yangtze River in 2006, 153 were hybrids, which accounted for 69.9 percent of total sturgeons caught (Li R. et al. 2009, p. 636). This information indicates that farmed hybrids are escaping into the river system. Although this study was conducted in the lower Yangtze River below the range of the Yangtze sturgeon, because sturgeon aquaculture occurs across the Yangtze River system, it is likely that hybridization is occurring in the upper Yangtze River as well.

The uncontrolled hybridization of native and nonnative species on the Yangtze alters the population dynamics between hybrids and native stocks. Hybridization may reduce the fitness of the overall population or replace a population of native fish with hybrids (Shen et al. 2014, p. 1549; Li R. et al. 2009, p. 636). Hybridization may also result in hybrids with better fitness than wild stock that outcompete the wild native stock of Yangtze sturgeon for habitat and resources. When native fish are unavailable, farmers tend to import nonnative fish that have more desirable characteristics, such as a higher growth rate and better adaptability. These nonnative sturgeons are bred with available native sturgeon to produce hybrids. These hybrids oftentimes escape or are accidentally introduced into the wild and then compete with the Yangtze sturgeon for resources (Xiong et al. 2015, pp. 657-658). Although hybridization is likely occurring all along the Yangtze River, we currently do not have information on the rate of hybridization in sturgeon in the upper Yangtze or how significant the effects are on the Yangtze sturgeon. Given that hybridized sturgeons make up 69.9 percent of sturgeons found in the studied area, it is likely that sturgeon hybrids are competing, and will likely continue to compete, with native stocks for habitat and resources throughout the Yangtze River system.

As a result of overfishing and the construction of Gezhouba Dam in 1981, the population of Yangtze sturgeon has continued to decline (Du et al. 2014, p. 1; Wu et al. 2014, p. 1; Zhang H. et al. 2011, p. 181). In response to the decline of the species, national and local officials have embarked on a number of initiatives to help conserve the species. These initiatives include increasing legal protection for the Yangtze sturgeon, creating and designating part of the species' range as a protected area, and repopulating the species in the wild through restocking (Zhang H. et al. 2011, p. 181; Fan et al. 2006, p. 35; Wei et al. 2004, p. 322).

In response to the decline of the Yangtze sturgeon, in 1989, China's State Council added the Yangtze sturgeon to the National Red Data Book for Threatened Chinese Fish as a Class I Protected Animal (Wu et al. 2014, p. 1; Zhang H. et al. 2011, p. 181; Dudgeon 2010, p. 128; Wei et al. 2004, p. 322; Zhuang et al. 1997, p. 258). Animals listed as a Class I species are protected from certain activities, including hunting, capturing, or killing, for both commercial and personal uses. Scientific research, domestication, breeding, and exhibition are exempted (Wei et al. 2004, p. 322). Transportation of Class I-listed species requires approval from the Department of Wildlife Administration. Import or export of Class I aquatic species is regulated by the Fisheries Bureau of the Minister of Agriculture (Wei et al. 2004, p. 323).

In addition to its listing under national law, the species has also been included in Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) since 1998 (Ludwig 2008, p. 5; CITES 1997, pp. 152-153). A query of the CITES trade database does not show any records of legal international trade in Yangtze sturgeon from 1975 to 2017 (CITES 2019). International trade in CITES species is regulated via a permit system. Under Article IV of CITES, export of an Appendix-II specimen requires a prior grant and presentation of an export permit. Export permits for Appendix-II specimens are only granted if the Management Authority of the State of export is satisfied that the specimens were lawfully obtained and if the Scientific Authority of the State of export has advised that the trade is not detrimental to the survival of the species in the wild. For any living specimen, the Management Authority of the State of export must also be satisfied that the specimen will be so prepared and shipped as to minimize the risk of injury, damage to health, or cruel treatment. Re-export of an Appendix-II specimen requires the prior grant and presentation of a re-export certificate, which is only granted if the Management Authority of the State of re-export is satisfied that the specimen was imported into that State in accordance with CITES and, for any living specimen, that the specimen will be so prepared and shipped as to minimize the risk of injury, damage to health, or cruel treatment. Certain exemptions and other special provisions relating to trade in CITES specimens are also provided in Article VII of CITES. In the United States, CITES is implemented through the Act and regulations at 50 CFR part 23.

Additionally, since 2003, a fishing ban on all fish species has been implemented in the upper Yangtze River from February 1 to April 30. Starting in 2017, the fishing ban was changed and extended from March to June (Du 2017, pers. comm.). One of the effects of this ban is a reduction in the bycatch of Yangtze sturgeon, as the time period of the ban coincides with the spawning season of the Yangtze sturgeon (Chen D. et al. 2012, p. 532; Chen D. et al. 2009, p. 348).

Despite the implementation of legal protection for the species, the current regulatory mechanisms for the species have several shortcomings. China currently does not have a specialized, dedicated agency to manage fisheries resources across the country. Riverine resource management is maintained at local levels, which are often located in major population centers, far away from the fishery resource (Chen D. et al. 2012, p. 541). In the case of Yangtze sturgeon, these different jurisdictions have variations in regulation and conservation goals for the Yangtze River ecosystem, which limits the coordination of species-conservation efforts and the overall effectiveness of managing species conservation across the Yangtze River basin (Chen D. et al. 2012, p. 541).

In addition to a lack of a specialized body or other effective basin-wide conservation efforts, lack of funding is a major problem for local jurisdictions. Enforcement officers often lack basic equipment, such as boats, to carry out fishing regulations within the fishery (Chen D. et al. 2012, p. 541). Additionally, while commercial harvesting of the species is prohibited, bycatch is still occurring and may still be too high to sustain a wild breeding population (Zhang H. et al. 2011, p. 184). The new seasonal fishing ban implemented in 2017 has the potential to reduce bycatch (Du 2017, pers. comm.). However, the positive effects from a fishing ban on the Yangtze River may be limited, given the fact that entire stretches of the river cannot be closed off to fishing due to the importance of the river to the economic well-being of riverside communities (Fan et al. 2006, p. 38).

To offset the effects of habitat loss due to dams, in 2000, China's State Department established the National Reserve of Hejiang-Leibo Reaches of the Yangtze River for Rare and Endangered Fishes (Zhang H. et al. 2011, p. 181; Fan et al. 2006, p. 35). The reserve is located on the upper Yangtze River on the reaches between Xiangjiaba Dam and the city of Chongqing. This reserve is intended to protect 3 imperiled fish species, the Yangtze sturgeon, the Chinese paddlefish ( Psephurus gladius ), and the Chinese high-fin banded shark ( Myxocyprinus asiaticus ), as well as 37 other endemic fish species (Fan et al. 2006, p. 35). In 2005, the reserve was expanded to mitigate the impact from current and future dam constructions (Zhang H. et al. 2011, pp. 181-182). While the reserve plays an important role in protecting wildlife within its borders, expansion of the hydroelectric projects in the lower Jinsha River and upper Yangtze outside the protected area is likely to undermine the effectiveness of the reserve. In order to facilitate economic growth, China has decentralized authority for infrastructure development from the state to local municipalities. This decentralized model has resulted in provincial governments prioritizing economic growth over environmental impacts (Dudgeon 2011, p. 1496).

Since 2003, hydroelectric projects in China are subject to environmental assessments and approval from the Ministry of Environmental Protection (Ministry) (Dudgeon 2011, p. 1496). However, this approval is routinely ignored even by nationally owned corporations. For example, in 2004, China Three Gorges Corporation (CTGC) began construction of the Xiluodu Dam in the Lower Jinsha without obtaining permission from the Ministry (Dudgeon 2011, pp. 1496-1497). In response, the Ministry suspended work on the dam in 2005. However, despite initial reservations about the lack of an environmental impact assessment, the Ministry quickly compiled reports and allowed the dam construction to proceed (Dudgeon 2011, p. 1499). Additionally, in 2009, the Ministry gave the authority to build two additional dams on the Jinsha segment after a brief suspension (Dudgeon 2010, p. 129). Overall, these temporary suspensions of construction have done little to slow down the pace of dam development. In addition to dam construction occurring outside the reserve, there was also a case of dam construction occurring within the reserve. In 2011, CTGC began constructing the Xiangjiaba Dam on the Lower Jinsha. The location of this dam was within the 500-km boundary of the National Reserve of Hejiang-Leibo Reaches. The CTGC successfully petitioned the State Council to redraw the boundaries of the reserve to exclude the section of the river where the Xiangjiaba Dam is located (Dudgeon 2011, p. 1500; Dudgeon 2010, p. 129). The reserve, now renamed the National Natural Reserve Area of Rare and Special Fishes of the Upper Yangtze River, encompasses the reaches below the Xiangjiaba Dam from Yibin to Chongqing, as well as the tributaries that feed into the Yangtze (Zhang H. et al. 2011, p. 182; Fan et al. 2006, p. 35). The redrawing of the area of the reserve to accommodate the construction of Xiangjiaba Dam lends further evidence that local governments are prioritizing growth over environmental impacts. The construction of the Xiangjiaba Dam led to the impoundment of the reach upriver, which will affect the flow and sedimentation rate downstream (Cheng et al. 2015, p. 577; Dudgeon 2011, p. 1500). Given the lack of natural reproduction of the Yangtze sturgeon and future impacts from the dam, it is unlikely that the current boundary of the reserve will be sufficient to maintain a wild breeding population of this species (Kynard 2016, pers. comm.; Dudgeon 2011, p. 1500).

As a result of the decline of the species, controlled reproduction and release of juvenile Yangtze sturgeon has occurred every year since 2007 (Zhang H. et al. 2011, p. 181). Between 2007 and 2012, more than 10,000 Yangtze sturgeon juveniles were released into the upper Yangtze on reaches downstream from Xiangjiaba Dam (Wu et al. 2014, p. 1). In 2014, restocking was started on the reaches below Gezhouba Dam (Du 2017, pers. comm.). While this number is relatively small in comparison with the 6 million Chinese sturgeon that have been released since 1983, the restocking of the Yangtze sturgeon represents efforts by local and state officials to try to maintain the species in the wild (Chen D. et al. 2009, p. 349).

Despite the efforts to restock the Yangtze sturgeon in the wild, current restocking efforts are unsuccessful (Wu et al. 2014, p. 4). No juveniles were caught 95 days after release, indicating that released sturgeon experienced a very high mortality rate (Wu et al. 2014, p. 4). There are multiple possible reasons for the limited success of current restocking efforts, including poor breeding and rearing techniques that result in progeny with low survival rates in the wild, high bycatch rate, and loss or deterioration of remaining habitats (Cheng et al. 2015, pp. 579-580; Du et al. 2014, p. 2; Shen et al. 2014, p. 1549; Zhang H. et al. 2011, p. 184). Thus, despite attempts to conserve the species in the wild through restocking, with all the other forces acting on the Yangtze sturgeon, it is unlikely that current restocking efforts are adequate to improve the species' condition in the wild.

Species endemic to small regions, or known from few, widely dispersed locations, are inherently more vulnerable to extinction than widespread species because of the higher risk from localized stochastic (random) events and processes, such as industrial spills and drought. These problems can be further magnified when populations are very small, due to genetic bottlenecks (reduced genetic diversity resulting from fewer individuals contributing to the species' overall gene pool) and random demographic fluctuations (Lande 1988, pp. 1455-1458; Pimm et al. 1988, p. 757). Species with few populations, limited geographic area, and a small number of individuals face an increased likelihood of stochastic extinction due to changes in demography, the environment, genetics, or other factors, in a process described as an extinction vortex (a mutual reinforcement that occurs among biotic and abiotic processes that drives population size downward to extinction) (Gilpin and Soulé 1986, pp. 24-25). The negative impacts associated with small population size and vulnerability to random demographic fluctuations or natural catastrophes can be further magnified by synergistic interactions with other threats.

The Yangtze sturgeon is known from a single geographic population in the upper Yangtze River and its tributaries (Zhang et al. 2011, pp 181-182; Zhuang et al. 1997, p. 259). As a result, the species is highly vulnerable to stochastic processes and is negatively affected by these processes. In March 2000, for example, the Jinguang Chemical Plant, located on the Dadu River (a tributary of the Yangtze River), was found to be releasing yellow phosphorous into the Yangtze. This substance is highly toxic to aquatic organisms, including the Yangtze sturgeon (Chen D. et al. 2009, p. 343). Another spill in 2006 on the Yuexi River, which also feeds into the Yangtze, involved mercury being released into the river (Worldwatch Institute 2006, entire). These and other incidents, combined with the fact that the Yangtze River system is home to a large number of chemical plants, suggest that the risk of industrial spills is quite high. Therefore, stochastic processes will have negative impacts on the species in combination with other factors such as habitat modification and loss, and bycatch.

We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. Our assessment of the current and future conditions encompasses and incorporates the threats individually and cumulatively. Our current and future condition assessment is iterative because it accumulates and evaluates the effects of all the factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

In the proposed rule published on December 27, 2017 (82 FR 61230), we requested that all interested parties submit written comments on the proposal by February 26, 2018. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. We published a press release notifying the general public of the opportunity to comment on our proposed rule. We did not receive any requests for a public hearing. We reviewed all comments we received from peer reviewers and the public for substantive issues and new information. All substantive information provided during the comment period has either been incorporated directly into this final determination or is addressed below.

As discussed in Supporting Documents above, we received responses from two peer reviewers. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the information contained in the SSA report. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve the final SSA report. Peer reviewer comments are addressed in the following summary and were incorporated into the final SSA report as appropriate.

One peer reviewer provided additional information on ongoing and new conservation efforts on the Yangtze River. These efforts include lengthening fishing bans within the species' range and the commencement of restocking efforts on reaches below Gezhouba Dam. We have incorporated the new information into this rule.

We received 24 public comments on the proposed rule to list the Yangtze surgeon as an endangered species under the Act. The majority of the comments reviewed were nonsubstantive as they were unrelated to the rule to list the Yangtze sturgeon. The following discussion summarizes issues and substantive information from public comments and provides our responses.

Comment (1): One commenter questioned the effectiveness of the listing of foreign species and stated that the listing of foreign species can have a negative impact on conservation efforts for foreign species undertaken by private entities.

Our Response: The decision to list a species under the Act is based on whether the species meets the definition of an endangered species or a threatened species, as defined under section 3 of the Act, and is made solely on the basis of the best scientific and commercial data available. Additionally, we were petitioned to list this species and are required to respond to the petition. Conservation measures provided to species listed as endangered or threatened under the Act include recognition, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and may encourage and result in conservation actions by foreign governments, Federal and State governments, private agencies and interest groups, and individuals. Listing under the Act can help ensure that the United States and its citizens do not contribute to the further decline of the species. For additional information see Available Conservation Measures, below.

Comment (2): One commenter stated that the species should not be listed until more sources are included.

Our Response: The Service is required by the Act to make determinations solely on the basis of the best scientific and commercial data available. We based this final rule on all the information we received following the publication of the proposed rule, as well as all of the information we found during our own research. At this time, we consider the information we compiled to be the best available information. The information we received during the proposed rule's comment period has been incorporated into this final rule, as appropriate.

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

We have carefully assessed the best scientific and commercial information available on the Yangtze sturgeon. While we do not know the exact population size of the Yangtze sturgeon, the species was historically abundant enough to be commercially viable up to the 1970s, after which it experienced a significant decline (Kynard et al. 2003, p. 27). Loss of individuals due to overharvesting by fishermen on the Yangtze (Factor B) is the main factor that contributed to the historical decline of the species. Subsequent construction of dams on the Yangtze prevented the migration in the middle Yangtze and lower Jinsha, which has prevented recovery of the species in these areas (Miao et al. 2015, p. 2351; Wu et al. 2014, p. 2; Dudgeon 2010, p. 128; Fang et al. 2006, p. 375; Zhuang et al. 1997, p. 261). Additionally, dams affect the quality of the species' habitat through changes in discharge, temperature, and sedimentation rate (Zhang G. et al. 2012, p. 445; Du et al. 2011, p. 262; Chen Z. et al. 2001, p. 90). In addition to dams, the species' habitat is also adversely affected by riverbed modification to accommodate increasing boat traffic. The combined effects of dams and riverbed modification on the Yangtze River have resulted in the loss and reduction in quality of remaining habitat for the species (Factor A).

Despite conservation efforts undertaken by local and national authorities, such as fishing bans and restocking, current efforts do not appear to be successful in conserving the species. No natural reproduction has been documented in the wild since 2008 (Wu et al. 2014, p. 1). Additionally, restocked juvenile sturgeon experience very high mortality rates due to a high bycatch rate and an inability to survive in wild conditions (Du et al. 2014, p. 1; Wu et al. 2014, p. 4).

Industrial pollution, and hybridization with displaced native and nonnative sturgeon species, are also acting on the species (Factor E). Although we do not have information on the impact of industrial pollution on the species in the wild, there are high concentrations of TPT and EDC in the Yangtze River, and studies in a laboratory environment found that these pollutants can reduce the reproductive success rate of adult sturgeon (Hu et al. 2009, p. 9342; An and Hu 2006, pp. 379-380). While we do not have data on the hybridization of Yangtze sturgeon with other species, surveys conducted in the lower Yangtze River found that 69.9 percent of sturgeon species caught were hybrids (Li R. et al. 2009, p. 636). The results suggest that industrial pollution and hybridization, in tandem with other factors, are adversely affecting the species.

Therefore, for the following reasons, we conclude that this species has been and continues to be significantly reduced to the extent that the viability of the Yangtze sturgeon is significantly compromised:

(1) The species is limited to a single geographic population in the upper Yangtze River main stem and its tributaries. There is also some evidence of a small remnant population in the middle Yangtze.

(2) Loss of habitat and connectivity between the spawning and feeding reaches due to dam construction and operation is having a significant adverse effect on the species, which appears to have low to no reproduction in the wild.

(3) The cumulative effects of habitat modification and loss due to dams and riverbed projects, bycatch, industrial pollution, and hybridization are adversely affecting the species.

(4) Current restocking and management efforts are inadequate to maintain the species' presence in the wild.

(5) Stochastic events, such as industrial spills or drought, can reduce the survival rate of the species.

We find that the Yangtze sturgeon is presently in danger of extinction throughout its range based on the severity and immediacy of threats currently adversely affecting the species. The populations and distributions of the species have been significantly reduced to the point where there is low to no current reproduction in the wild, which is indicative of a very high risk of extinction, and the remaining habitat and populations are at risk due to a variety of factors acting alone and in combination to reduce the overall viability of the species.

After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we find the following factors to be threats to this species ( i.e., factors contributing to the risk of extinction of this species): Loss and modification of habitat due to dams and riverbed expansion (Factor A); bycatch (Factor E); and cumulative effects (Factor E) of these and other threats, including industrial pollution and hybridization. Furthermore, current legal and management efforts over these practices are inadequate to conserve the species (Factor D). Thus, after assessing the best available information, we conclude that Yangtze sturgeon is in danger of extinction throughout all of its range. We find that a threatened species status is not appropriate for this species because of its restricted range, limited distribution, and vulnerability to extinction, and because the threats are ongoing throughout its range at a level that places this species in danger of extinction now.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. We have determined that the Yangtze sturgeon is in danger of extinction throughout all of its range, and accordingly, did not undertake an analysis of any significant portions of its range. Because we have determined that the Yangtze sturgeon warrants listing as endangered throughout all of its range, our determination is consistent with the decision in Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020), in which the court vacated the aspect of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014) that provided the Services do not undertake an analysis of significant portions of a species' range if the species warrants listing as threatened throughout all of its range.

Our review of the best available scientific and commercial information indicates that the Yangtze sturgeon meets the definition of an endangered species. Therefore, we are listing the Yangtze sturgeon as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and encourages and results in conservation actions by Federal, State, Tribal, and local agencies, foreign governments, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

An “action” that is subject to the consultation provisions of section 7(a)(2) is defined in our implementing regulations at 50 CFR 402.02 as all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. With respect to this species, there are no “actions” known to require consultation under section 7(a)(2) of the Act. Given the regulatory definition of “action,” which clarifies that it applies to activities or programs “in the United States or upon the high seas,” the Yangtze sturgeon is unlikely to be the subject of section 7 consultations, because the entire life cycle of the species occurs in freshwater and nearshore marine areas outside of the United States unlikely to be affected by U.S. Federal actions. Additionally, no critical habitat will be designated for this species because, under 50 CFR 424.12(g), we will not designate critical habitat within foreign countries or in other areas outside of the jurisdiction of the United States.

Section 8(a) of the Act (16 U.S.C. 1537(a)) authorizes the provision of limited financial assistance for the development and management of programs that the Secretary of the Interior determines to be necessary or useful for the conservation of endangered or threatened species in foreign countries. Sections 8(b) and 8(c) of the Act (16 U.S.C. 1537(b) and (c)) authorize the Secretary to encourage conservation programs for foreign listed species, and to provide assistance for such programs, in the form of personnel and the training of personnel.

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

We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits for endangered wildlife are codified at 50 CFR 17.22, and general Service permitting regulations are codified at 50 CFR part 13. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. The Service may also register persons subject to the jurisdiction of the United States through its captive-bred-wildlife (CBW) program if certain established requirements are met under the CBW regulations (50 CFR 17.21(g)). Through a CBW registration, the Service may allow a registrant to conduct certain otherwise prohibited activities under certain circumstances to enhance the propagation or survival of the affected species: Take; export or re-import; deliver, receive, carry, transport or ship in interstate or foreign commerce, in the course of a commercial activity; or sell or offer for sale in interstate or foreign commerce. A CBW registration may authorize interstate purchase and sale only between entities that both hold a registration for the taxon concerned. The CBW program is available for species having a natural geographic distribution not including any part of the United States and other species that the Director has determined to be eligible by regulation. The individual specimens must have been born in captivity in the United States. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a final listing on proposed and ongoing activities within the range of a listed species. Based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive:

(1) Take of the Yangtze sturgeon in its native range; and

(2) Trade in the Yangtze sturgeon and its products that is both outside the United States and conducted by persons not subject to U.S. jurisdiction (although this activity would still be subject to CITES requirements).

Separate from its final listing as an endangered species, as a CITES-listed species, all international trade of Yangtze sturgeon by persons subject to the jurisdiction of the United States must also comply with CITES requirements pursuant to section 9(c) and 9(g) of the Act and to 50 CFR part 23. Applicable wildlife import/export requirements established under section 9(d) through 9(f) of the Act, the Lacey Act Amendments of 1981 (16 U.S.C. 3371 et seq. ), and 50 CFR part 14 must also be met for Yangtze sturgeon imports and exports. Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Branch of Delisting and Foreign Species (see FOR FURTHER INFORMATION CONTACT ).

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (42 U.S.C. 4321 et seq. ), need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

A complete list of references cited in this rulemaking is available on the internet at http://www.regulations.gov and upon request from the Branch of Delisting and Foreign Species, Ecological Services (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this final rule are the staff members of the Branch of Delisting and Foreign Species, Ecological Services, Falls Church, VA.

Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

The Northeast Multispecies Fishery Management Plan (FMP) regulations give the Regional Administrator the authority to implement certain types of management measures for the common pool fishery, the U.S./Canada Management Area, and Special Management Programs. This action implements a number of these management measures for the 2021 fishing year, effective May 1, 2021.

The regulations at § 648.86(o) give the Regional Administrator the authority to implement or adjust a per-Day-at-Sea (DAS) possession limit and/or a maximum trip limit in order to prevent exceeding the common pool sub-annual catch limit (sub-ACL) in that fishing year. The possession and trip limits implemented for the start of the 2021 fishing year are included in Tables 1 and 2 below. These possession and trip limits were developed based on the common pool sub-ACLs set by Framework Adjustment 59 to the FMP (85 FR 45794, July 30, 2020) that will be in effect on May 1, 2021. We considered preliminary 2021 sector rosters, expected common pool participation, and common pool fishing activity in previous fishing years. We also took into account uncertainty arising from our pending consideration of Framework 61 for potential approval. Based on that information, we project that these adjustments will facilitate optimized harvest of the common pool quotas, while preventing early trimester closures, and preventing catch from exceeding the 2021 fishing year sub-ACLs.

For Handgear A and Handgear B vessels, possession and trip limits for Georges Bank (GB) and Gulf of Maine (GOM) cod are tied to the possession and trip limits for groundfish DAS vessels. The default cod trip limit is 300 lb (136 kg) for Handgear A vessels and 75 lb (34 kg) for Handgear B vessels. If the GOM or GB cod limit for vessels fishing on a groundfish DAS drops below 300 lb (136 kg), then the respective Handgear A cod trip limit must be reduced to the same limit. Similarly, the Handgear B trip limit must be adjusted proportionally to the DAS limit (rounded up to the nearest 25 lb (11 kg)). In accordance with this process, the Handgear A and Handgear B possession and trip limits for GB and GOM cod are as listed below in Table 2.

Vessels with a Small Vessel category permit can possess up to 300 lb (136 kg) of cod, haddock, and yellowtail flounder, combined, per trip. Additionally, for these vessels, the trip limit for all stocks is equal to the landing limits per DAS applicable to multispecies DAS vessels. This is necessary to ensure that the trip limit applicable to the Small Vessel category permit is consistent with the trip limits for other common pool vessels, as described above.

Weekly quota monitoring reports for the common pool fishery can be found on our website at: https://www.greateratlantic.fisheries.noaa.gov/ro/fso/reports/h/nemultispecies.html. We will continue to monitor common pool catch through vessel trip reports, dealer-reported landings, vessel monitoring system catch reports, and other available information and, if necessary, we will make additional adjustments to common pool management measures.

Table 3 includes the initial common pool trimester total allowable catches (TAC) for fishing year 2021. These trimester TACs are based on preliminary sector rosters. However, individual permit holders have until the end of the 2020 fishing year (April 30, 2021) to drop out of a sector and fish in the common pool fishery for the 2021 fishing year. Therefore, it is possible that the sector and common pool catch limits, including the trimester TACs, may change due to changes in sector rosters. If changes to sector rosters occur, updated catch limits and/or possession and trip limits will be announced as soon as possible in the 2021 fishing year to reflect the final sector rosters as of May 1, 2021. We are working to publish a proposed rule to request comment on updated 2021 specifications as recommended by the New England Fishery Management Council in Framework Adjustment 61. If approved, that rule would make additional changes to common pool sub-ACLs. There could be additional changes to common pool possession and trip limits as a result.

The regulations at § 648.85(b)(3)(vii) provide the Regional Administrator with authority to determine the total number of common pool trips that may be declared into the Closed Area II Yellowtail Flounder/Haddock Special Access Program (SAP) to target yellowtail flounder. This action allocates zero trips for common pool vessels to target yellowtail flounder within the Closed Area II Yellowtail Flounder/Haddock SAP for fishing year 2021. As a result, this SAP is only open to target haddock, from August 1, 2021, through January 31, 2022. Northeast multispecies vessels fishing in the SAP must fish with a haddock separator trawl, a Ruhle trawl, or hook gear. Vessels may not fish in this SAP using flounder trawl nets.

The Regional Administrator has the authority to determine the allocation of the total number of trips into the Closed Area II Yellowtail Flounder/Haddock SAP based on several criteria, including the GB yellowtail flounder catch limit and the amount of GB yellowtail flounder caught outside of the SAP. Allocating trips to target yellowtail flounder in the Closed Area II Yellowtail Flounder/Haddock SAP is discretionary if the available GB yellowtail flounder catch is insufficient to support at least 150 trips with a 15,000-lb (6,804-kg) trip limit, for a total catch of 2,250,000 lb (1,020,600 kg). This calculation considers projected catch from all vessels from the area outside the SAP. Based on the fishing year 2021 GB yellowtail flounder groundfish sub-ACL implemented by Framework Adjustment 59 of 209,439 lb (95,000 kg), there is insufficient GB yellowtail flounder to allocate any trips to the SAP. Further, given the low GB yellowtail flounder catch limit, catch rates outside of this SAP are more than adequate to fully harvest the 2021 GB yellowtail flounder allocation.

We are working to publish a proposed rule to request comments on Framework 61 measures. If approved, Framework 61 would implement a 2021 GB yellowtail flounder sub-ACL that is reduced compared to the Framework 59 sub-ACL. A reduction in the GB yellowtail flounder sub-ACL would reduce the number of potential trips in the Closed Area II yellowtail Flounder/Haddock SAP. As a result, we do not expect that the final rule implementing Framework 61 would allocate trips to the SAP to target yellowtail flounder.

The regulations at § 648.85(b)(6)(vi) authorize the Regional Administrator to close the Regular B DAS program by prohibiting the use of Regular B DAS when the continuation of the program would undermine the achievement of the objectives of the Northeast Multispecies FMP or the Regular B DAS Program. One reason for terminating the program is an inability to constrain common pool catches to the Incidental Catch TACs.

Framework Adjustment 59 implemented Common Pool Incidental Catch TACs for the Regular B DAS Program for the 2021 fishing year (Table 4). These TACs are further divided into Quarterly Incidental Catch TACs to be monitored and managed during each calendar quarter.

Given that the Incidental Catch TACs allocated to the Regular B DAS Program for several stocks are very small, in-season management of the Regular B DAS Program is likely to be extremely difficult and impractical. Implementation of an in-season action to close the Regular B DAS Program once a Quarterly Incidental Catch TAC for a stock has been reached would not be possible to complete quickly enough to prevent further catch of that stock.

As a result, it is unlikely that we can effectively limit catch to the Incidental Catch TACs during fishing year 2021, and project that continuation of the program would undermine the achievement of the objectives of the Northeast Multispecies FMP and the Regular B DAS Program. The Regular B DAS Program will be closed and use of Regular B DAS is prohibited for the 2021 fishing year, through April 30, 2022. This applies to all vessels issued a limited access Northeast multispecies permit.

This action is authorized by 50 CFR part 648 and is exempt from review under Executive Order 12866.

The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3) to waive prior notice and the opportunity for public comment and the 30-day delayed effectiveness period because it would be contrary to the public interest.

The regulations at § 648.86(o) authorize the Regional Administrator to adjust the Northeast multispecies possession and trip limits for common pool vessels in order to prevent the overharvest or underharvest of the pertinent common pool quotas. This action sets the initial common pool possession and trip limits on May 1, 2021, for the 2021 fishing year. The possession and trip limits implemented through this action help to ensure that the Northeast multispecies common pool fishery may achieve the optimum yield for the relevant stocks, while controlling catch to help prevent in-season closures or quota overages. Delay of this action would leave the common pool fishery with the possession and trip limits found in § 648.86, which are too high to control catch. This would likely lead to early closure of a trimester and quota overages. Any overage of the quota for either of the first two trimesters must be deducted from the Trimester 3 quota, which could substantially disrupt the trimester structure and intent to distribute the fishery across the entire fishing year. An overage reduction in Trimester 3 would further reduce fishing opportunities for common pool vessels and likely result in early closure of Trimester 3. Additionally, any overage of the annual quota would be deducted from common pool's quota for the next fishing year, to the detriment of this stock.

The regulations at § 648.85(b)(3)(vii) require that the Regional Administrator announce the total number of allowed trips by common pool vessels that may be declared into the Closed Area II Yellowtail Flounder/Haddock SAP on or about June 1. We have included the announcement in this in-season action to meet this regulatory requirement. Doing so ensures that the fishing industry has sufficient notice in order to plan their activities in the new fishing year. This action occurs annually, and industry participants are accustomed to it and expect its timely implementation. Given the low quota for GB yellowtail flounder in recent years, no trips have been allocated to this SAP from fishing year 2010 to fishing year 2021.

The regulations at § 648.85(b)(6)(vi) authorize the Regional Administrator to close the Regular B DAS program by prohibiting the use of Regular B DAS when the continuation of the program would undermine the achievement of the objectives of the Northeast Multispecies FMP or the Regular B DAS Program. The Regular B DAS program closure implemented through this action will prevent an overage of the Incidental Catch TACs. Delay of this action would provide vessel owners an opportunity to participate in the Regular B DAS Program, but participation and catch in the program may cause the allocation to be exceeded.

For the reasons above, delay of this action for prior notice and the opportunity for public comment and the 30-day delayed effectiveness period would undermine management objectives of the FMP and cause unnecessary negative economic impacts to the common pool fishery.