This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This rule is issued under Marketing Agreement No. 121 and Marketing Order No. 915, both as amended (7 CFR part 915), regulating the handling of avocados grown in South Florida. Part 915 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and is comprised of growers and handlers of avocados operating within the production area, and a public member.

This rule is also issued under section 8e of the Act (7 U.S.C. 608e-1), which provides that whenever certain specified commodities, including avocados, are regulated under a Federal marketing order, imports of these commodities into the United States are prohibited unless they meet the same or comparable grade, size, quality, or maturity requirements as those in effect for domestically produced commodities.

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 12866 and 13563. Executive Orders 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

This rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions would have tribal implications. In accordance with Executive Order 13175, the Agricultural Marketing Service (AMS) has not identified any tribal implications because of this rule.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act (7 U.S.C. 608c(15)(A)), any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of the entry of the ruling (7 U.S.C. 608c(15)(B)).

There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of import regulations issued under section 8e of the Act.

This final rule changes the maturity requirements under the Order. This action establishes April 16 to April 15 of the following year as the beginning and end dates for the annual maturity shipping schedule, with an exception for the requirements listed under Guatemalan seedling, which would run from June 9 to June 8 of the following year. This final rule provides clarity regarding the schedule and dates in effect, assists with compliance to help ensure a quality product reaches consumers, and reflects current industry practices. These changes were unanimously recommended by the Committee at its October 14, 2020, meeting.

Section 915.51 of the Order provides, in part, authority to establish maturity requirements under the Order. Section 915.52 of the Order provides authority for the modification, suspension, or termination of established regulations. Section 915.332 of the Order's rules and regulations establishes the maturity requirements for avocados grown in Florida. These requirements are specified in Table I of § 915.332(a) and establish minimum weights and diameters to delineate specific shipping time frames for avocados shipped under the Order. Maturity requirements for avocados imported into the United States are currently in effect under § 944.31.

The maturity regulations are designed to prevent the shipment of immature avocados, and include the annual shipping schedule to help ensure only mature fruit reaches the market. Avocado varieties mature at different times, and varieties can vary considerably in terms of size and weight. Consequently, the schedule establishes shipping dates and maturity requirements by variety. Varieties not specifically listed on the schedule are covered by the requirements for West Indian seedling or Guatemalan seedling. These maturity dates and requirements are established based on a testing procedure developed by USDA.

The shipping schedule in Table I specifies the individual maturity requirements for the numerous avocado varieties shipped each season. As larger fruit within a variety matures earliest, the schedule makes the larger sized fruit available for market first followed by later dates to incrementally release smaller sizes for shipment as they mature. As such, the maturity requirements for a variety are usually divided into A, B, C, and D dates, which are associated with specific weights and sizes reflecting when a particular variety matures.

Avocados may not be handled until the earliest date, the A date, specified for that variety on the shipping schedule so only the largest, most mature fruits are available for market for each variety early in its season. The final date, the D date, for each variety correlates to the end of its season when all fruits of that variety should be mature and releases all remaining sizes and weights for shipment.

While the maturity schedule includes dates and maturity requirements for individual varieties, the regulations do not specify beginning and end dates for the annual maturity schedule itself. In the past, there was a gap in shipments in April, which created a natural break from one season's schedule to the next, with the first varieties appearing on the maturity schedule in May. This break served as the indicator of where the requirements of one annual schedule ended, and the new annual schedule began.

Such a differentiation between schedules is important as it clarifies which schedule is in place, so handlers know which maturity requirements need to be met. Specifically, this demarcation makes it clear the D dates for one schedule do not stretch to the A dates of the new schedule. Such a delineation between schedules provides a gap between the D dates and the A dates for the next season. This helps to ensure avocados are not shipped early to take advantage of the relaxed maturity requirements of the D-date, which could result in the shipment of immature fruit, and would circumvent the requirement that avocados may not be handled prior to the earliest date specified by the A date for that variety.

However, with the development of late-season varieties, there has been an increase in shipments under the Guatemalan seedling category in March, April, and May. Consequently, there is no longer a break in shipments between annual schedules, which has created an overlap from one annual schedule to the next. With this overlap, questions have arisen regarding the schedule, and when one annual schedule ends and another begins.

In discussing this issue, the Committee supported establishing beginning and end dates for the maturity schedule to address the overlap, and to address questions regarding which maturity schedule and dates were in effect. The Committee believes doing so will provide clarity regarding the schedule and assist with any compliance issues related to the dates established.

The Committee agreed that using an end date of April 15 for the shipping schedule, with an exception for avocados handled under the Guatemalan seedling category, would be appropriate. This date reflects the break in schedules the industry has used to delineate one schedule from the next, and it remains applicable for all listings on the shipping schedule apart from the Guatemalan seedling.

For most avocados covered under the schedule, the normal harvest cycle, from the A date when the harvest of a particular variety begins to when all fruit of that variety has been picked, is around three months. The last A date listed on the schedule for a specific variety is for the Monday nearest December 12, with a D date of the following Monday nearest January 23. Using these dates, April 15 will provide more than enough time to harvest and ship those varieties listed on the schedule, other than Guatemalan seedling.

While the A date for the “Guatemalan Seedling” appears on the maturity schedule in September, the listing provides the maturity requirements for avocados of the Guatemalan type varieties and seedlings, as well as hybrid varieties and seedlings, and unidentified seedlings not listed elsewhere in Table I. Consequently, the requirements for the Guatemalan seedling cover numerous varieties with shipments extending into March, April, and May for some of the varieties in this category.

Recognizing the shipments under the Guatemalan seedling and related varieties and seedlings do not conform to the same seasonal schedule as the other varieties listed on the maturity schedule, the Committee considered alternative dates for the beginning and end dates for the maturity requirements for those varieties covered under this category. In discussing dates for the Guatemalan seedling, Committee members were concerned about establishing an end date that was beyond the proper maturity timeframe for this fruit, which could allow inferior fruit to enter the market.

Avocados mature on the tree and start the ripening process as they are picked. Avocados can be held on the tree to delay shipments or to lengthen the harvest period. However, if they remain on the tree too long, they will pass their optimal maturity. This can negatively impact the quality of the fruit resulting in fruit that is overmature or overripe.

In past seasons, the industry had been considering June 30 as an end date for the annual requirements for Guatemalan seedling. However, Committee members agreed this date was too late in the season and could result in poor quality fruit reaching the market, as some overripe avocados had appeared at the wholesale level. Committee members believe setting an end date earlier in the month will address the issues related to overmature fruit, improving the quality of avocados entering the market, and providing customers with a better product.

According to information from the Committee, avocados declared as Guatemalan seedling have typically completed shipping before the first week in June. Considering the timing of shipments, and to ensure consumers are receiving a quality product, the Committee recommended establishing an end date for the Guatemalan maturity requirements of June 8.

With most shipments ending before the first week in June, a June 8 end date provides an additional week for handlers to ship any remaining avocados covered by the Guatemalan seedling requirements. Also, by having a clear end date defining where one schedule ends, and the new schedule becomes applicable, handlers can adjust their shipping dates accordingly to meet the requirements.

As a result, the Committee recommended establishing beginning and end dates for the annual maturity shipping schedule of April 16 to April 15 of the following year, with an exception for Guatemalan seedling which extends from June 9 to June 8 of the following year. The Committee believes establishing these dates will provide clarity regarding the schedule, assist with compliance to help ensure a quality product reaches consumers, and reflect current industry practices and changes in the industry. This change only impacts the maturity requirements under the Order and makes no change to the current grade requirements.

Section 8e of the Act provides that when certain domestically produced commodities, including avocados, are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements. Maturity requirements for avocados imported into the United States are currently in effect under § 944.31. As this rule revises the maturity requirements for Florida avocados by establishing beginning and end dates for the annual maturity shipping schedule, a corresponding change needs to be made to the import regulations.

Imports and importers will also benefit from these changes, which establish beginning and end dates for the maturity requirements. Clarifying the schedule and the requirements that are in place, thus helping ensure customers are receiving a quality product is beneficial for the entire industry, including imports.

The Hass, Fuerte, Zutano, and Edranol varieties of avocados currently are exempt from the maturity regulations and continue to be exempt under this final rule. However, these varieties are not exempt from the import grade regulation, which is not being changed by this action.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 325 producers of Florida avocados in the production area and 25 handlers subject to regulation under the Order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts less than $1,000,000, and small agricultural service firms are defined as those whose annual receipts are less than $30,000,000 (13 CFR 121.201).

According to the National Agricultural Statistical Service (NASS), the average grower price paid for Florida avocados during the 2020-21 season was $21.97 per 55-pound bushel. Utilized production was equivalent to 624,364 55-pound bushels for a total value of over $13,718,830. Dividing the crop value by the estimated number of producers (325) yields an estimated average receipt per producer of $42,212, so the average producer would have annual receipts of less than $1,000,000, which is below the SBA threshold for small agricultural producers. Therefore, Florida avocado producers are considered small businesses.

USDA Market News reported April 2021 terminal market prices for green skinned avocados were about $36.43 per 24-pound container. Using this price and the total utilization, the total 2020-21 handler crop value is estimated at $52.1 million. Dividing this figure by the number of handlers (25) yields estimated average annual handler receipts of $2.08 million, which is below the SBA threshold for small agricultural service firms.

In 2020, the Dominican Republic, Peru, Mexico, and Colombia were the major countries exporting avocado varieties other than Hass to the United States. In 2020, shipments of these types of avocados imported into the United States totaled around 29,630 metric tons. Of that amount, 29,133 metric tons were imported from the Dominican Republic. Information from USDA's Global Agricultural Trade System database indicates the dollar value of these avocados to be approximately $41,385,000. There are approximately 20 importers of green skin avocadoes. Using the total value and the number of importers, the average importer would have annual receipts of less than $30 million.

Based on these estimates, the majority of Florida avocado producers and handlers, and importers, may be classified as small entities.

This rule changes the maturity requirements under the Order. This action establishes April 16 to April 15 of the following year as the beginning and end dates for the annual maturity shipping schedule, with an exception for Guatemalan seedling which will run from June 9 to June 8 of the following year. This rule provides clarity regarding the maturity schedule and dates in effect, assists with compliance to help ensure a quality product reaches consumers, and reflects current industry practices. This rule revises § 915.332. Authority for this change is provided in §§ 915.51 and 915.52. This rule will also change § 944.31 in the avocado import regulation, as is required by section 8e of the Act.

This action is not expected to increase the costs associated with the Order's requirements or the avocado import regulation. Rather, it is anticipated that this action will have a beneficial impact by providing clarity regarding the maturity schedule and dates in effect, assist with compliance, and help ensure a quality product reaches consumers.

This change will provide clarity as to which schedule is in place, so producers, handlers, and importers know which maturity requirements need to be met. Establishing beginning and end dates for the maturity requirements will clearly identify when the requirements of one annual schedule end, and the new annual schedule begins. Further, having a delineation between schedules assists with compliance by making it clear that the D dates for one schedule do not stretch to the A date of the new schedule. This will help ensure that immature avocados are not shipped early using the previous season's D date to circumvent the requirement that avocados may not be handled prior to the A date specified for that variety.

For the Guatemalan seedling, establishing the beginning and end dates for the annual maturity requirements should help prevent shipments beyond the quality lifecycle of varieties covered under this category. This change sets a clear date by which shipments under the D date will end, assisting both with compliance and with fruit quality. Absent this change, fruit could be shipped past its proper maturity period, which could provide the consumer with an inferior product.

This change will not create any additional burdens for producers, handlers, or importers. The April 15 end date reflects the break in schedules the industry has used to delineate one schedule from the next, and it remains applicable for all listings on the shipping schedule, apart from the Guatemalan seedling. The April 15 end date provides more than enough time to harvest and ship those varieties listed on the schedule.

For those varieties covered under the Guatemalan seedling, Committee data indicates most shipments are completed before the first week in June. This change provides an additional week beyond June 1 for handlers to ship any remaining avocados covered by the Guatemalan seedling requirements. Also, by establishing a clear end date, handlers can adjust their shipping dates accordingly to meet the new requirements. Establishing an end date of June 8 for maturity requirements for the Guatemalan seedling will provide sufficient time for avocados to ship under this designation, while helping prevent the shipment of overmature fruit.

This final rule provides clarity regarding the maturity schedule and dates in effect, assists with compliance to help ensure a quality product reaches consumers, and reflects current industry practices. The benefits of this rule are expected to be equally available to all fresh avocado growers, handlers, and importers, regardless of their sizes of operations.

One alternative to this action would be to maintain the current maturity requirements without establishing end dates for the maturity schedule. However, the Committee recognized that shipments have changed over the years and wanted to provide clarity regarding the maturity schedule. Another alternative considered was establishing an end date for the requirements for Guatemalan seedling of June 30. In discussing this date, Committee members expressed concern that this date was past the proper maturity for this fruit and would allow inferior fruit to enter the market. The Committee believes establishing the changes in this rule, rather than the alternatives, would assist with compliance and help ensure a quality product reaches consumers. Therefore, the Committee rejected these alternatives.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by the OMB and assigned OMB No. 0581-0189, Fruit Crops. No changes in those requirements are necessary as a result of this rule. Should any changes become necessary, they would be submitted to OMB for approval.

This rule does not impose any additional reporting or recordkeeping requirements on either small or large avocado handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. Further, the public comments received concerning the proposal did not address the initial regulatory flexibility analysis.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Committee meetings were widely publicized throughout the avocado industry. All interested persons were invited to attend Committee meetings and participate in Committee deliberations on all issues. Like all Committee meetings, the October 14, 2020, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

A proposed rule concerning this action was published in the Federal Register on August 12, 2021 (86 FR 44286). Copies of the proposed rule were also mailed or sent via email to all Florida avocado handlers. The proposal was made available through the internet by USDA and the Office of the Federal Register. A 60-day comment period ending October 12, 2021, was provided for interested persons to respond to the proposal.

During the comment period, three comments were received in response to the proposal. Of the comments received, one comment was in support of the change and two were opposed.

The one comment in support agreed with the proposed changes and stated their support for the domestic industry. In addition, the commentor added the changes would ensure products are ripe and safe for consumers.

The two comments received in opposition to the change were from industry representatives from the Dominican Republic. Both commentors stated the change would have a negative impact on avocados imported from the Dominican Republic by shortening the calendar and limiting imports. Based on a review of the comments submitted and available information, USDA does not believe this will shorten the calendar year nor have a negative impact on imported shipments based on the reasons discussed below.

The end dates established are consistent with current industry practices and provide ample time for varieties to ship prior to the end dates for the schedule. As previously mentioned, most avocados subject to the maturity schedule are harvested within three months of the A date. The last A date listed on the schedule for a specific variety is for the Monday nearest December 12, with a D date of the following Monday nearest January 23. The end date of April 15 falls four months after the final listed A date and provides handlers sufficient time to harvest and ship varieties listed on the schedule.

Regarding the end date for the Guatemalan seedling, the industry had been considering June 30 as an end date for the annual requirements for Guatemalan seedling. However, Committee members agreed this date was too late in the season and had resulted in overmature, poor quality fruit reaching the market. Setting an end date earlier in the month helps address the issues related to overmature fruit, improving the quality of avocados entering the market, and benefiting growers, handlers, and importers by ensuring consumers receive a quality piece of fruit.

Further, the end date of June 8 is not a significant change from the June 30 date the industry had previously considered. Based on information available, most shipments of Guatemalan seedlings end before the first week in June, and the end date of June 8 still provides an additional week for handlers to ship any remaining avocados. While avocados can be held on the tree for a period after they have reached maturity, varieties covered under the Guatemalan seedling are mature and available for harvest and shipment before the established end date. Handlers and importers can adjust their harvesting and shipping dates to reflect the end dates for the schedule.

Consequently, shipments should not be negatively impacted by establishing end dates for the schedule, nor does the calendar year shorten as a result of this rule. The end dates will also help prevent the shipment of overmature avocados that have been held on the tree too long.

One comment also stated the change would affect the export of more than 150 containers per year causing an economic loss of more than $7 million per season. Based on the other information contained in the comment, the statements about the volume and monetary impact stem from concerns regarding how the variety commonly referred to in the Dominican Republic as Beneke will be handled under this change. Importers have been declaring the Beneke variety as West Indian seedling, Hardee, Berni, Beni, and other names, as well as Guatemalan seedling during the importation process. This variety usually ships during the period of overlap in the schedules and can have shipments into July.

The commentor is concerned the change to the maturity schedule would directly affect the imports of this variety as many importers have been declaring the Beneke as Guatemalan seedling at the time of inspection. The commentor believes this change would negatively impact the importation of this variety by reducing its shipment timeframe to that specified for the Guatemalan seedling.

However, in the comment, the Beneke is described as a variety which changes color from green to dark purple. Sections 915.332 of the Order and 944.31 of the Avocado import maturity regulation, provide an exemption from the maturity regulation for varieties which normally change color to any shade of red or purple when mature, except for the Linda variety. Consequently, varieties that break in color, such as Beneke, are exempt from the maturity schedule. As such, this change will not impact the Beneke variety.

The commentor also suggests that Beneke be adopted as the official name for this variety and asked that procedures be updated to assist with the importation of this variety. USDA is familiar with the Beneke variety and has been working on ways to facilitate its entry into the United States. USDA has requested a United Nations Standard Products and Services Code for the Beneke variety. Once obtained, the codes can be used when presenting this variety for entry into the United States. The importer should also identify the variety as Beneke when submitting the request for inspection. These steps should facilitate the importation of this variety and prevent unnecessary issues and delays during the inspection process.

Accordingly, for the reasons discussed above, no changes will be made to the rule as proposed based on the comments received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

In accordance with section 8e of the Act, the United States Trade Representative has concurred with the issuance of this rule.

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule will tend to effectuate the declared policy of the Act.

For the reasons set forth in the preamble, the Agricultural Marketing Service amends 7 CFR parts 915 and 944 as follows:

The substance of these special conditions has been published in the Federal Register for public comment in several prior instances with no substantive comments received. Therefore, the FAA finds, pursuant to § 11.38(b), that new comments are unlikely, and notice and comment prior to this publication are unnecessary.

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

The FAA will consider all comments received by the closing date for comments. The FAA may change these special conditions based on the comments received.

On July 1, 2012, Dassault applied for a type certificate for its new Model Falcon 5X airplane. However, Dassault has decided not to release an airplane under the model designation Falcon 5X, instead choosing to change that model designation to Falcon 6X.

In February of 2018, due to engine supplier issues, Dassault extended the type certificate application date for its Model Falcon 5X airplane under new Model Falcon 6X. This airplane is a twin-engine business jet with seating for 19 passengers, and has a maximum takeoff weight of 77,460 pounds.

Under the provisions of 14 CFR 21.17, Dassault must show that the Model Falcon 6X airplane meets the applicable provisions of part 25, as amended by amendments 25-1 through 25-146.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Dassault Model Falcon 6X airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

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

In addition to the applicable airworthiness regulations and special conditions, the Dassault Model Falcon 6X airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

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

The Dassault Model Falcon 6X airplane will incorporate the following novel or unusual design features:

New control architecture and a full digital flight control system that provides comprehensive flight-envelope protections.

The applicable airworthiness regulation is § 25.143. The purpose of § 25.143 is to verify that operational maneuvers conducted within the operational envelope can be accomplished smoothly with average piloting skill and without exceeding structural limits. The pilot should be able to predict the airplane response to any control input. During the course of the flight-test program, the pilot determines compliance with § 25.143 primarily through qualitative methods. During flight test, the pilot should evaluate all of the following:

• The interface between each protection function;

• Transitions from one mode to another;

• Airplane response to intentional dynamic maneuvering, whenever applicable, through dedicated maneuvers;

• General controllability assessment;

• High-speed characteristics; and

• High angle-of-attack.

However, the regulations do not adequately ensure that the novel or unusual features of the electronic flight control system will have a level of safety equivalent to that of existing standards. The general limiting requirements are necessary to ensure a smooth transition from normal flight to the protection mode and adequate maneuver capability. The general limiting requirements also ensure that the structural limits of the airplane are not exceeded. Furthermore, failure of the flight-envelope protection feature must not create hazardous flight conditions.

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

As discussed above, these special conditions are applicable to the Dassault Model Falcon 6X airplane. Should Dassault apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

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

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Dassault Aviation Model Falcon 6X airplanes.

a. Onset characteristics of each flight-envelope protection feature must be smooth, appropriate to the phase of flight and type of maneuver, and not in conflict with the ability of the pilot to satisfactorily change airplane flight path, speed, or attitude as needed.

b. Limit values of protected flight parameters (and, if applicable, associated warning thresholds) must be compatible with the following:

1. Airplane structural limits,

2. Required safe and controllable maneuvering of the airplane, and

3. Margins to critical conditions. Unsafe flight characteristics/conditions must not result if dynamic maneuvering, airframe, and system tolerances (both manufacturing and inservice), and non-steady atmospheric conditions, in any appropriate combination and phase of flight, can produce a limited flight parameter beyond the nominal design limit value.

c. The airplane must be responsive to intentional dynamic maneuvering to within a suitable range of the parameter limit. Dynamic characteristics such as damping and overshoot must also be appropriate for the flight-maneuver and limit parameter in question.

d. When simultaneous envelope limiting is engaged, adverse coupling or adverse priority must not result.

a. Electronic flight-control system (EFCS) failures, including sensors, must not result in a condition where a parameter is limited to such a reduced value that safe and controllable maneuvering is no longer available.

b. The crew must be alerted by suitable means if any change in envelope limiting or maneuverability is produced by single or multiple failures of the EFCS not shown to be extremely improbable.

The substance of these special conditions has been published in the Federal Register for public comment in several prior instances with no substantive comments received. Therefore, the FAA finds, pursuant to § 11.38(b), that new comments are unlikely, and notice and comment prior to this publication are unnecessary.

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

The FAA will consider all comments received by the closing date for comments. The FAA may change these special conditions based on the comments received.

On July 1, 2012, Dassault applied for a type certificate for its new Model Falcon 5X airplane. However, Dassault has decided not to release an airplane under the model designation Falcon 5X, instead choosing to change that model designation to Falcon 6X.

In February of 2018, due to engine supplier issues, Dassault extended the type certificate application date for its Model Falcon 5X airplane under new Model Falcon 6X. This airplane is a twin-engine business jet with seating for 19 passengers, and has a maximum takeoff weight of 77,460 pounds.

Under the provisions of 14 CFR 21.17, Dassault must show that the Model Falcon 6X airplane meets the applicable provisions of part 25, as amended by amendments 25-1 through 25-146.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Dassault Model Falcon 6X airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

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

In addition to the applicable airworthiness regulations and special conditions, the Dassault Model Falcon 6X airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

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

The Dassault Model Falcon 6X airplane will incorporate the following novel or unusual design features:

Lateral-directional and longitudinal stability, and low-energy awareness, functions of the EFCS.

Lateral-directional Static Stability: The Dassault Model 6X airplane includes a flight-control design feature within the normal operational envelope in which side-stick deflection in the roll axis commands roll rate; and stick force in the roll axis will be zero (neutral stability) during the straight, steady sideslip flight maneuver required by § 25.177(c), which will not be “substantially proportional to the angle of sideslip” as required by the rule.

Longitudinal Static Stability: The longitudinal flight control laws for the Model Falcon 6X airplane provide neutral static stability within the normal operational envelope; therefore, the airplane design does not comply with the static longitudinal stability requirements of §§ 25.171, 25.173, and 25.175.

Low Energy Awareness: Static longitudinal stability provides awareness to the flight crew when they have deviated from a trimmed state. This could also be an important factor in their awareness of a low energy state (low speed and thrust at low altitude) if they are flying at low speeds. Entry into a low energy state may be less noticeable due to this lack of static stability and recovery may become more hazardous when associated with a low altitude and performance limiting conditions. These low energy situations must therefore be avoided, and pilots must be given adequate cues when approaching such situations.

The EFCS affects the following stability and energy-awareness features of the airplane:

The EFCS on the Dassault Model Falcon 6X contains fly-by-wire control laws that can result in neutral lateral-directional static stability. Therefore, the airplane does not meet the conventional requirements in the regulations.

Positive static directional stability is defined as the tendency to recover from a skid with the rudder free. Positive static lateral stability is defined as the tendency to raise the low wing in a sideslip with the aileron controls free. These control criteria are intended to accomplish the following:

a. Provide additional cues of inadvertent sideslips and skids through control-force changes.

b. Ensure that short periods of unattended operation do not result in any significant changes in yaw or bank angle.

c. Provide predictable roll and yaw response.

d. Provide an acceptable level of pilot attention (workload) to attain and maintain a coordinated turn.

Static longitudinal stability on airplanes with mechanical links to the pitch-control surface means that a pull force on the controller results in a reduction in speed relative to the trim speed, and a push force results in higher than trim speed. Longitudinal stability is required by the regulations for the following reasons:

a. Speed-change cues are provided to the pilot through increased and decreased forces on the controller.

b. Short periods of unattended control of the airplane do not result in significant changes in attitude, airspeed, or load factor.

c. A predictable pitch response is provided to the pilot.

d. An acceptable level of pilot attention (workload) to attain and maintain trim speed and altitude is provided to the pilot.

e. Longitudinal stability provides gust stability.

The pitch-control movement of the side stick on the Model Falcon 6X airplane is designed to be a normal load factor, or “g” command, that results in an initial movement of the elevator surface to attain the commanded load factor that is then followed by integrated movement of the stabilizer and elevator to automatically trim the airplane to a neutral, 1g, stick-free stability. The flight path commanded by the initial side-stick input will remain, stick-free, until the pilot provides another command. This control function is applied during “normal” control law within the speed range, from initiation of the angle-of-attack protection limit, V prot , to V MO /M MO . Once outside this speed range, the control laws introduce the conventional longitudinal static stability as described above.

As a result of neutral static stability, the Model Falcon 6X airplane does not meet the regulatory requirements for static longitudinal stability.

Past experience on airplanes fitted with a flight-control system providing neutral longitudinal stability reveals insufficient feedback cues to the pilot of excursion below normal operational speeds. The maximum angle-of-attack protection system limits the airplane angle of attack and prevents stall during normal operating speeds, but this system is not sufficient to prevent stall at low-speed excursions below normal operational speeds. Until intervention, there are no stability cues because the aircraft remains trimmed. Additionally, feedback from the pitching moment due to thrust variation is reduced by the flight-control laws. Low-speed excursions may become more hazardous without the typical longitudinal stability, and recovery is more difficult when the low-speed situation is associated with a low altitude, and with the engines at low thrust or with performance-limiting conditions.

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

As discussed above, these special conditions are applicable to the Dassault Model Falcon 6X airplane. Should Dassault apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

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

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Dassault Aviation Model Falcon 6X airplane.

In lieu of the requirements of §§ 25.171, 25.173, 25.175, and 25.177(c), the following special conditions apply:

1. The airplane must be shown to have suitable static lateral, directional, and longitudinal stability in any condition normally encountered in service, including the effects of atmospheric disturbance. The showing of suitable static lateral, directional, and longitudinal stability must be based on the airplane handling qualities, including pilot workload and pilot compensation, for specific test procedures during the flight-test evaluations.

2. The airplane must provide adequate awareness to the pilot of a low energy (low speed, low thrust, low height) state when fitted with flight-control laws presenting neutral longitudinal stability significantly below the normal operating speeds. “Adequate awareness” means warning information must be provided to alert the crew of unsafe operating conditions, and to enable them to take appropriate corrective action.

3. The following requirement must be met for the configurations and speed specified in paragraph (a) of § 25.177. In straight, steady sideslips over the range of sideslip angles appropriate to the operation of the airplane, the rudder-control movements and forces must be substantially proportional to the angle of sideslip in a stable sense. This factor of proportionality must lie between limits found necessary for safe operation. The range of sideslip angles evaluated must include those sideslip angles resulting from the lesser of:

a. One-half of the available rudder control input; and

b. A rudder control force of 180 pounds.

On January 30, 2019, Boeing applied for a change to Type Certificate No. A16WE for the installation of single-occupant oblique seats, with airbag devices and 3-point restraints, installed at 49 degrees relative to the airplane cabin bow-to-stern centerline in the Boeing Model 737-10 airplane. The Boeing Model 737-10 airplane is a twin-engine, transport-category airplane with seating for 230 passengers and a maximum takeoff weight of 197,900 pounds.

Under the provisions of 14 CFR 21.101, Boeing must show that the Model 737-10 airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. A16WE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 737-10 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

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

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 737-10 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in § 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The Boeing Model 737-10 airplane will incorporate the following novel or unusual design feature:

Single-occupant oblique seats, with airbag devices and 3-point restraints, installed at 49 degrees relative to the airplane cabin bow-to-stern centerline.

Section 25.785(d) requires that each occupant of a seat installed at an angle of more than 18 degrees, relative to bow-to-stern airplane cabin centerline, must be protected from head injury using a seatbelt and an energy-absorbing rest that supports the arms, shoulders, head, and spine; or using a seatbelt and shoulder harness designed to prevent the head from contacting any injurious object.

The Boeing Model 737-10 airplane single-occupant oblique seat installation, with airbag devices and 3-point restraints, is novel such that the current requirements do not adequately address airbag devices and protection of the occupant's neck, spine, torso, and legs for seating configurations that are positioned at an angle of 49 degrees from the airplane centerline. The seating configuration installation angle is beyond the installation-design limits of current special conditions issued for seat positions at angles between 18 degrees and 45 degrees. For example, at these angles, lateral neck bending and other injury mechanisms prevalent from a fully side-facing installation become a concern. Although special conditions no. 25-552-SC was issued for Boeing Model 787 airplane seats installed at 49 degrees in 2014, that document is no longer applicable because they were issued prior to the current oblique-seat special conditions that are based on the July 11, 2018, FAA policy statement PS-AIR-25-27, “Technical Criteria for Approving Oblique Seats.” These special conditions are based on the Boeing Model 787 airplane special conditions, with updates from that policy statement, and to align with the fully side-facing-seat policy statement PS-ANM-25-03-R1, “Technical Criteria for Approving Side-Facing Seats.”

To provide a level of safety equivalent to that afforded to occupants of forward- and aft-facing seats, additional airworthiness standards, in the form of dynamic testing requirements, including both the injury criteria limits from the oblique-seat policy and the fully side-facing-seat policy through new special conditions, are necessary.

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

The FAA issued Notice of Proposed Special Conditions No. 25-21-05-SC for the Boeing Model 737-10 airplane, which was published in the Federal Register on December 15, 2021 (86 FR 71183). The FAA received one comment from the Air Line Pilots Association, International, in support of the special conditions.

As discussed above, these special conditions are applicable to the Boeing Model 737-10 airplane. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

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

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 737-10 airplanes.

In addition to the requirements of §§ 25.562 and 25.785, passenger seats with airbag devices and 3-point restraints, installed at an angle 49 degrees relative to the airplane cabin bow-to-stern centerline, must meet the following:

HIC assessments are required only for head contact with the seat and other structure.

1. Compliance with § 25.562(c)(5) is required, except that, because an airbag device is present in addition to the 3-point restraint system, when the anthropomorphic test dummy (ATD) has no apparent contact with the seat and other structure but has contact with the airbag, a HIC score in excess of 1000 is acceptable, provided the HIC15 score (calculated in accordance with 49 CFR 571.208) for that contact is less than 700.

2. ATD head contact with the seat or other structure through the airbag, or contact subsequent to contact with the airbag, requires an HIC value not exceeding 1000.

3. The HIC value must not exceed 1000 in any condition in which the airbag does or does not deploy, up to the maximum severity pulse specified by the existing requirements.

4. To accommodate a range of occupant heights (5th percentile female to 95th percentile male), any surface, airbag or otherwise, that provides support for the occupant head, must provide that support in a consistent manner regardless of occupant stature. Otherwise, additional HIC assessment tests may be needed.

If a seat is installed aft of structure, such as an interior wall or furnishing that does not provide a homogenous contact surface for the expected range of occupants and yaw angles, then additional analysis and tests may be required to demonstrate that the injury criteria are met for the area an occupant could contact. For example, different yaw angles could result in different injury considerations and airbag performance, and may require additional analysis, or separate tests may be necessary to evaluate performance.

1. The seating system must protect the occupant from experiencing serious neck injury. The assessment of neck injury must be conducted with the airbag device activated, unless there is reason to also consider that the neck injury potential would be higher for impacts below the airbag-device deployment threshold.

2. Rotation of the head about its vertical axis, relative to the torso, is limited to 105 degrees in either direction from forward-facing.

3. The neck must not impact any surface that would produce concentrated loading on the neck.

4. Assess neck injury for fore and aft neck bending using the FAA Hybrid III ATD, as described in SAE 1999-01-1609, “A Lumbar Spine Modification to the Hybrid III ATD for Aircraft Seat Tests,” applying the following criteria: The N ij , calculated in accordance with 49 CFR 571.208, must be below 1.0, where N ij = F z /F zc + M y /M yc , and N ij critical values are:

In addition, peak upper-neck F z must be below 937 lbs (4168 N) in tension and 899 lbs (3999 N) in compression.

5. When lateral neck bending is present, assess it using an ES-2re ATD as defined by 49 CFR part 572, subpart U. The data must be filtered at channel frequency class (CFC) 600 as defined in SAE Recommended Practice J211-1, “Instrumentation for Impact Test Part 1—Electrionic Instrumentation:”

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

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

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

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

1. The seating system must protect the occupant from experiencing spine and torso injury. The assessment of spine and torso injury must be conducted with the airbag device activated, unless it is necessary to also consider that the occupant-injury potential would be higher for impacts below the airbag-device deployment threshold.

2. Assess spine and torso injury, for oblique torso bending, using the FAA Hybrid III ATD, applying the following criteria:

i. The lumbar spine tension (F z ) cannot exceed 1,200 lbs (5338 N).

ii. Significant concentrated loading on the occupant's spine, in the area between the pelvis and shoulders during impact, including rebound, is not acceptable. During this type of contact, the interval for any rearward (X direction) acceleration exceeding 20g must be less than 3 milliseconds, as measured by the thoracic instrumentation specified in 49 CFR part 572, subpart E, filtered in accordance with SAE Recommended Practice J211-1.

3. When lateral torso bending is present, assess spine and torso injury using an ES-2re ATD, applying the following criteria:

i. Thoracic: The deflection of any of the ES-2re ATD upper, middle, and lower ribs must not exceed 1.73 inches (44 mm). Process the data as defined in Federal Motor Vehicle Safety Standards (FMVSS) 571.214, title 49 of the CFR.

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

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

1. The seating system must protect the occupant from experiencing pelvis injury.

2. Any part of the load-bearing portion of the bottom of the ATD pelvis must not translate beyond the edges of the seat bottom seat-cushion supporting structure.

3. When pelvis contact with the armrest or surrounding interior components is present, assess it using an ES-2re ATD. The pubic symphysis force measured by the ES-2re ATD must not exceed 1,350 lbs (6,000 N). Process the data as defined in FMVSS 571.214.

Limit axial rotations of the upper leg (about the z-axis of the femur, per SAE Recommended Practice J211-1) to 35 degrees from the nominal seated position. Evaluation during rebound does not need to be considered.

1. Perform longitudinal tests, conducted to measure the injury criteria above, using the FAA Hybrid III ATD or using the ES-2re ATD. Conduct the tests with the undeformed floor, at the most-critical yaw cases for injury, and with all lateral structural supports ( e.g., armrests or walls) installed.

2. For longitudinal tests conducted in accordance with § 25.562(b)(2), to show compliance with the seat-strength requirements of § 25.562(c)(7) and (8), and these special conditions, to ensure proper loading of the seat by the occupant, the ATD pelvis must remain supported by the seat pan, and the restraint system must remain on the pelvis of the ATD until rebound begins. No injury criteria evaluation is necessary for tests conducted only to assess seat-strength requirements.

3. If a seat installation includes adjacent items that are within contact range of an occupant, assess the injury potential of that contact. To make this assessment, tests may be conducted to include the actual contact item, located and attached in a representative fashion. Alternatively, the injury potential may be assessed through a combination of tests with contact items having the same geometry as the actual contact item, but having stiffness characteristics that would create the worst case for injury, such as injuries due to both contact with the item and lack of support from the item.

4. Conduct the combined horizontal and vertical test, required by § 25.562(b)(1) and these special conditions, with the FAA Hybrid II ATD (49 CFR part 572, subpart B, as specified in § 25.562) or equivalent.

5. The design and installation of seatbelt buckles must prevent unbuckling due to applied inertial forces, or impact from seat occupant hands and arms, during an emergency landing.

An inflatable airbag-restraint system will be installed, and must meet the requirements of Special Conditions No. 25-386-SC, “Boeing Model 737-600/-700/-700C/-800/-900 and 900ER Series Airplanes; Seats With Inflatable Lapbelts,” applicable to Boeing Model 737-10 series airplanes.

1. The determination of the appropriate ATD to be used in assessing occupant injury (FAA Hybrid III or ES-2re) is based on the occupant kinematics at the selected test angle. At the +10-degree yaw angle, the occupant kinematics show that occupant injury tests, using both ATDs, are required.

2. Conduct vertical tests with the Hybrid II ATD or equivalent, with existing pass/fail criteria.

3. Conduct longitudinal structural tests with the Hybrid II ATD or equivalent, deformed floor, with 10 degrees yaw, and with all lateral structural supports ( e.g., armrests or walls) required to support the occupant.

4. Conduct longitudinal occupant-injury tests, as necessary, with the FAA Hybrid III ATD or ES-2re ATD, undeformed floor, yaw, and with all lateral structural supports ( e.g., armrests or walls) critically represented, and which are within contact range of the occupant.

i. Pass/fail injury assessments:

A. Perform HIC, fore and aft neck injury, spinal tension, and femur evaluations using the FAA Hybrid III ATD.

B. Perform lateral neck injury, thoracic, abdominal, pelvis, and femur evaluations using the ES-2re ATD.

5. For injury assessments accomplished by testing with the ES-2re ATD for longitudinal tests conducted in accordance with § 25.562(b)(2) and these special conditions, the ATDs must be positioned, clothed, and have lateral instrumentation configured as follows:

i. ES-2re ATD Lateral Instrumentation:

The rib-module linear slides are directional ( i.e., deflection occurs in either a positive or negative ATD y-axis direction). Install the modules such that the moving end of the rib module is toward the front of the airplane. Install the three abdominal-force sensors such that they are on the side of the ATD toward the front of the airplane.

ii. ATD Clothing:

Clothe each ATD in form-fitting cotton-stretch garments with short- to full-length sleeves, mid-calf to full-length pants, and size 11E (45) shoes weighing about 2.5 lbs (1.1 kg), and having a heel height of about 1.5 inches (3.8 cm). The color of the clothing should be in contrast to the color of the restraint system and the background. The color of the clothing should be chosen to avoid overexposing the high-speed images captured during the test. The ES-2re jacket is sufficient for torso clothing, although a form-fitting shirt may be used in addition, if desired.

iii. ATD Positioning:

A. Lower the ATD vertically into the seat while simultaneously:

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

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

(3) Applying a horizontal x-axis direction (in the ES-2re ATD coordinate system) force of about 20 lbs (89 N) to the bottom rib of the ES-2re, to compress the seat-back cushion.

B. After all lifting devices have been removed from the ATD:

(1) Rock it slightly to settle it in the seat.

(2) Bend the knees of the ATD.

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

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

(5) Position the ATD's arms at the joints' mechanical detent, to position them to an approximately 20- to 40-degree angle with respect to the torso.

(6) Position the feet such that the centerlines of the lower legs are approximately parallel.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain serial-numbered British Aerospace (Operations) Limited and British Aerospace Regional Aircraft Model Jetstream Series 200, Jetstream Model 3101, and Jetstream Model 3201 airplanes. The NPRM published in the Federal Register on November 12, 2021 (86 FR 62742). The NPRM was prompted by MCAI originated by the Civil Aviation Authority (CAA), which is the aviation authority for the United Kingdom. CAA has issued CAA AD G-2021-0005, dated August 3, 2021 (referred to after this as “the MCAI”), to address an unsafe condition on certain serial-numbered BAE Systems (Operations) Ltd. Model Jetstream Series 3100 and Series 3200 airplanes. The MCAI states:

You may examine the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0961.

In the NPRM, the FAA proposed to require replacing the push rod assembly with a modified push rod assembly. The FAA is issuing this AD to address the unsafe condition on this product.

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

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. This AD is adopted as proposed in the NPRM.

The FAA reviewed Jetstream Series 3100/3200 Service Bulletin 27-JM 5350, Revision 1, dated May 6, 1994. This service information specifies procedures for replacing push rod assembly part number (P/N) 137201E419 with push rod assembly P/N 137201E429. 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 MCAI does not apply to the Model Jetstream Series 200, whereas this AD includes the Model Jetstream Series 200 because this model has an FAA type certificate and shares a similar type design in the affected area. The MCAI and service information apply to Model Jetstream Series 3100 and Jetstream Series 3200 airplanes, which are identified on the FAA type certificates as Jetstream Model 3101 and Jetstream Model 3201 airplanes, respectively.

The FAA estimates that this AD affects 43 airplanes of U.S. registry.

The FAA estimates that it would take about 6 work-hours per airplane to replace the push rod assembly. The average labor rate is $85 per work-hour. Required parts would cost about $300 per airplane.

Based on these figures, the FAA estimates the cost on U.S. operators to be $34,830 or $810 per airplane.

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

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

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:

In March 2020, the United States Federal Communications Commission (FCC) adopted final rules authorizing flexible use of the 3.7-3.98 GHz band for next generation services, including 5G and other advanced spectrum-based services. 1 Pursuant to these rules, C-Band wireless broadband deployment was permitted to occur in phases with the opportunity for operations in the lower 0.1 GHz of the band (3.7-3.8 GHz) in certain markets beginning on January 19, 2022. This AD refers to “5G C-Band” interference, but wireless broadband technologies, other than 5G, may use the same frequency band. 2 These other uses of the same frequency band are within the scope of this AD since they would introduce the same risk of radio altimeter interference as 5G C-Band.

The radio altimeter is an important aircraft instrument, and its intended function is to provide direct height-above-terrain/water information to a variety of aircraft systems. Commercial aviation radio altimeters operate in the 4.2-4.4 GHz band, which is separated by 0.22 GHz from the C-Band telecommunication systems in the 3.7-3.98 GHz band. The radio altimeter is more precise than a barometric altimeter and for that reason is used where aircraft height over the ground needs to be precisely measured, such as autoland, manual landings, or other low altitude operations. The receiver on the radio altimeter is typically highly accurate, however it may deliver erroneous results in the presence of out-of-band radio frequency emissions from other frequency bands. The radio altimeter must detect faint signals reflected off the ground to measure altitude, in a manner similar to radar. Out-of-band signals could significantly degrade radio altimeter functions during critical phases of flight, if the altimeter is unable to sufficiently reject those signals.

The FAA issued AD 2021-23-12, Amendment 39-21810 (86 FR 69984, December 9, 2021) (AD 2021-23-12) to address the effect of 5G C-Band interference on all transport and commuter category airplanes equipped with a radio (also known as radar) altimeter. AD 2021-23-12 requires revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations, which require radio altimeter data to land in low visibility conditions, when in the presence of 5G C-Band interference as identified by NOTAM. The FAA issued AD 2021-23-12 because radio altimeter anomalies that are undetected by the automation or pilot, particularly close to the ground ( e.g., landing flare), could lead to loss of continued safe flight and landing.

Since the FAA issued AD 2021-23-12, Boeing has continued to evaluate potential 5G C-Band interference on aircraft systems that rely on radio altimeter inputs. Boeing issued Boeing Multi Operator Message MOM-MOM-22-0022-01B(R2), dated February 1, 2022; Boeing Flight Crew Operations Manual Bulletin TBC-67 R1, “Radio Altimeter Anomalies due to 5G C-Band Wireless Broadband Interference in the United States,” dated February 1, 2022; Boeing Flight Crew Operations Manual Bulletin TBCC-72 R1, “Radio Altimeter Anomalies due to 5G C-Band Wireless Broadband Interference in the United States,” dated February 1, 2022; Boeing Flight Crew Operations Manual Bulletin TBC-86 R1, “Radio Altimeter Anomalies due to 5G C-Band Wireless Broadband Interference in the United States,” dated February 1, 2022; and Boeing Flight Crew Operations Manual Bulletin TBC4-33 R1, “Radio Altimeter Anomalies due to 5G C-Band Wireless Broadband Interference in the United States,” dated February 1, 2022; for Model 757 and 767 airplanes.

Based on Boeing's data, the FAA identified an additional hazard presented by 5G C-Band interference on The Boeing Company Model 757 and 767 airplanes. The FAA determined anomalies due to 5G C-Band interference may affect multiple other airplane systems using radio altimeter data, regardless of the approach type or weather. These anomalies may not be evident until very low altitudes. Impacted systems include, but are not limited to, autopilot flight director system; autothrottle system; flight controls; flight instruments; traffic alert and collision avoidance system (TCAS); ground proximity warning system (GPWS); and configuration warnings.

In the event of 5G C-Band interference, landing performance and flightcrew workload can be adversely impacted. This may have multiple effects, including:

• Autopilot Flight Director System: NO AUTOLAND Autopilot Status Annunciation may be shown; autopilot may not engage; autopilot disconnect may occur when LAND 2 or LAND 3 status is shown; the flight directors may provide erroneous guidance during ILS approaches; autoland runway alignment may not occur or may activate earlier or later than expected; autoland flare may not occur, however, FLARE mode can be erroneously annunciated on the FMA (flight mode annunciation); or go-around mode may not be available.

• Autothrottle System: Autothrottle can remain in SPD (speed) mode and may advance to maintain speed during flare instead of reducing the thrust to IDLE; or autothrottle may retard to idle prematurely in the flare.

• Flight Controls: Automatic speedbrake deployment may not occur after touchdown (for Model 757 and 767 models with Yaw Damper Stabilizer Trim module (YSM)); or SPEEDBRAKES EXT Caution message may not be available.

• Flight Instruments: The RA (radio altimeter) indication may not be shown; the RADIO minimums indications (flashing or turning amber) may not be shown or may be erroneous; the rising runway symbol may not be shown; the localizer deviation alert amber scale and flashing pointer may not be shown (deviation indications are still available); or the glideslope deviation alert amber scale and flashing pointer may not be shown (deviation indications are still available).

• TCAS: TCAS alerts may not be available (TCAS alerts that do occur will be valid); or TCAS inhibits for resolution advisories may be erroneous.

• GPWS: GPWS alerts may not be available or may be erroneous (although look-ahead terrain alerting remains available); radio altimeter-based altitude and minimums aural callouts during approach may not be available or erroneous; or windshear detection systems (predictive and reactive) may be inoperative.

• Configuration Warnings: Erroneous landing gear configuration warning may occur.

• Considerations for Dispatch: For Model 757 and 767 airplanes with YSM, adjust operational (time of arrival) landing distance for manual speedbrakes. For airplanes without YSM, no impacts on dispatch landing performance calculations.

• Other simultaneous flight deck effects associated with the 5G C-Band interference could increase pilot workload.

These effects may cause erroneous indications and annunciations, as well as conflicting information, being provided to the flightcrew during a critical phase of flight. This could lead to reduced ability of the flightcrew to maintain safe flight and landing of the airplane, and is an unsafe condition.

To address this unsafe condition, this AD mandates procedures for operators to incorporate specific operating procedures for landing distance calculations, ILS approaches, non-precision approaches, speedbrake deployment, and go-around and missed approaches, when in the presence of 5G C-Band interference as identified by NOTAMs.

The FAA notes that for those airplanes equipped with YSM, the 5G interference to the radio altimeter creates an error to the YSM which causes the speedbrakes to not automatically deploy on landing; the flightcrew must manually deploy the speedbrakes when this occurs. Further, the additional landing distance calculation is required due to the differences in manual deployment versus automatic deployment during landing.

Finally, the FAA notes that AD 2021-23-12 remains in effect and thus prohibits certain ILS approaches. Thus, this AD addresses procedures applicable only to those ILS approaches not prohibited by AD 2021-23-12.

The FAA is issuing this AD to address the unsafe condition on these products.

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This AD requires revising the limitations and operating procedures sections of the existing AFM to incorporate specific operating procedures for landing distance calculations, ILS approaches, non-precision approaches, speedbrake deployment, and go-around and missed approaches, when in the presence of 5G C-Band interference as identified by NOTAMs.

Section 91.9 prohibits any person from operating a civil aircraft without complying with the operating limitations specified in the AFM. FAA regulations also require operators to furnish pilots with any changes to the AFM (14 CFR 121.137) and pilots in command to be familiar with the AFM (14 CFR 91.505).

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

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

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because the FAA determined that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G C-Band, and a determination that, during approach, landings, and go-arounds, as a result of this interference, certain airplane systems may not properly function, resulting in increased flightcrew workload while on approach with the flight director, autothrottle, or autopilot engaged. This increased flightcrew workload could lead to reduced ability of the flightcrew to maintain safe flight and landing of the airplane. The urgency is based on the hazard presented by 5G C-Band interference, and on C-Band wireless broadband deployment, which began in phases with operations on January 19, 2022. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, 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, for the same reasons the FAA found good cause to forgo notice and comment.

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-2022-0095 and Project Identifier AD-2022-00054-T 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 for Model 757 airplanes should be sent to Jeffrey Palmer, Aerospace Engineer, Systems and Equipment Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5351; email: jeffrey.w.palmer@faa.gov. Submissions containing CBI for Model 767 airplanes should be sent to Dean Thompson, Senior Aerospace Engineer, Systems and Equipment Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3165; email: dean.r.thompson@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The requirements of the 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.

The FAA estimates that this AD affects 1,138 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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, 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 FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to various airplanes modified with certain configurations of Garmin G3X Touch Electronic Flight Instrument System installed per STC No. SA01899WI or Garmin GI 275 MFD installed per STC No. SA02658SE. The NPRM published in the Federal Register on August 27, 2021 (86 FR 48070). The NPRM was prompted by notification of a Piper production line issue with the installation of a Garmin G3X Touch Electronic Flight Instrument System installed under STC No. SA01899WI. After calibration and fueling the airplane to a known level, the flight crew noted that the fuel quantity indicator displayed a higher level of fuel.

The Garmin G3X Touch Electronic Flight Instrument System, when interfaced with the Garmin GEA 24 (Engine Airframe Adapter) for display of the fuel quantity, uses a 1K ohm resistor inline between the GEA 24 and the airplane fuel quantity resistance style sending unit (float). This resistor provides lightning protection to the fuel tank as required by 14 CFR 23.954.

Use of the 1K resistor causes a GEA error when the GEA 24 or resistor is subjected to significantly hotter or colder temperatures than the temperature at which the fuel gauges were calibrated during installation. The farther the actual (ambient) temperature of the GEA 24 or resistor is from the temperature of the fuel quantity calibration, the larger the error. The lower the operating resistance of the fuel sending unit, the larger the error. The largest errors occur in installations with fuel sending units having an operational range less than 100 ohms. The Garmin GI 275 MFDs installed under STC No. SA02658SE, when interfaced with the Garmin GEA 24 for display of the fuel quantity, is also subject to this unsafe condition.

The displayed fuel quantity can have an error as much as four gallons/fuel tank with the display indicating four gallons with an empty tank. In the NPRM, the FAA proposed to require modifying the resistive fuel probe interface. The FAA is issuing this AD to prevent fuel starvation and engine shutdown, which could result in the inability to arrive at the destination airport or a suitable alternative airport.

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

Garmin requested the FAA correct certain information in the preamble. In the NPRM, the FAA stated that use of the 1K resistor causes a GEA error when the resistor temperature changes. According to Garmin, using the 1K resistor causes a GEA error when the GEA 24 temperature changes. Garmin further noted that 1k resistors are installed near the GEA 24 plug and are exposed to the same ambient temperatures.

The FAA agrees with correcting the preamble and has changed this final rule to clarify that a GEA error results from the GEA 24 being subjected to significantly hotter or colder temperatures than the temperature at which the fuel gauges were calibrated during installation. The FAA disagrees with the requested changes regarding the location of the resistors. The commenter's request is not supported by the information in the installation manual, which does not require the resistor to be installed near the GEA 24.

Garmin also requested that the FAA remove the exact error amount ( i.e., four gallons) between the displayed fuel quantity and the actual amount of fuel. Garmin stated that due to variations in different aircraft system configurations, this amount could be misleading.

Removing the reference to 4 gallons would minimize the potential magnitude of the error and the need for AD action. The FAA did not change this AD based on this comment.

Garmin noted a typographical error in that the NPRM referred to “MFDS” instead of “MFDs.”

The FAA agrees and has corrected all references to MFDs accordingly.

Garmin requested that the FAA change the description of the inevitable consequence of the unsafe condition. In the NPRM, the FAA stated the unsafe condition, if not addressed, could result in fuel starvation and engine shutdown with consequent loss of airplane control. Garmin stated that this incorrectly implies that loss of airplane control is the inevitable consequence of fuel starvation and engine shutdown. Garmin requested the FAA revise the preamble to state that loss of airplane control is one of many possible outcomes.

The FAA agrees that loss of control is not an inevitable result of fuel starvation. In the context of this event, the end level effect is the loss of powered flight to the destination airport. Accordingly, the FAA has revised the background section of the preamble and the unsafe condition paragraph of the AD to reflect that fuel starvation and engine shutdown could result in the inability to arrive at the destination airport or a suitable alternative airport.

Garmin requested the FAA revise the AD to remove several airplane models that are not subject to the unsafe condition. Garmin listed these models as follows: The Boeing Company Model AT-6 (Navy SNJ-2), AT-6A (Navy SNJ-3), AT-6B, AT-6C (Navy SNJ-4), AT-6D (Navy SNJ-5), AT-6F (Navy SNJ-6), BC- 1A, Navy SNJ-7, and T-6G; Cessna Aircraft Company Model T-50 (Army AT-17 and UC-78 series, Navy JRC-1); Costruzioni Aeronautiche Tecnam S.P.A. Model P2006T; Daher Aircraft Design, LLC (type certificate previously held by Quest Aircraft Design, LLC) Model Kodiak 100; EADS-PZL Warszawa-Okęcie S.A. Model PZL-104 Wilga 80; Helio Alaska, Inc. Model H-800; Howard Aircraft Foundation Model DGA-15J (Army UC-70B), DGA-15P (Army UC-70, Navy GH-1, GH-2, GH-3, NH-1), and DGA-15W; Textron Aviation Inc. Model G17S; Thrush Aircraft, LLC Model 600 S-2D, S2R, S2R-R1340, S2R-Rl820, S2R-R3S, and S2R-T34; and Waco Aircraft Company Model YMF airplanes.

The FAA agrees and has revised the list of applicable models accordingly.

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

The FAA reviewed Garmin Mandatory STC Service Bulletin 2134, Revision A, and Garmin Mandatory STC Service Bulletin 2135, Revision A, both dated April 23, 2021. This service information specifies procedures for modifying the GEA 24 resistive fuel probe interface. These documents are distinct since they apply to different STCs. 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 Master Drawing List (MDL) Document No. 005-01320-00, Revision 10, for STC No. SA01899WI; and MDL Drawing No. 005-01208-41, Revision 10, for STC No. SA02658SE; both dated April 23, 2021. This service information contains the type design data for installation of the STC. MDL Document No. 005-01320-00, Revision 10, dated April 23, 2021, introduces a new fuel quantity interface and configuration to eliminate the unsafe condition described previously.

The FAA estimates that this AD affects 920 airplanes of U.S. registry.

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

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

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

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

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

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

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

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

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

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

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0127, dated May 12, 2021 (EASA AD 2021-0127) (also referred to as the MCAI), to correct an unsafe condition for certain Airbus SAS Model A350-941 and -1041 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 A350-941 and -1041 airplanes. The NPRM published in the Federal Register on August 18, 2021 (86 FR 46164). The NPRM was prompted by a report that during type certification activity, it was identified that certain monitoring software was incorrectly implemented in the BCS certification standard. The NPRM proposed to require installing (updating) certain software for the braking and steering system, as specified in EASA AD 2021-0127.

The FAA is issuing this AD to address in-service limitations related to the braking and steering system, which, under specific degraded conditions, could lead to a reduction in braking performance and potentially lead to a runway excursion, and result in damage to the airplane and injury to passengers. See the MCAI for additional background information.

The FAA received comments from Delta Airlines (DAL) and the Air Line Pilots Association, International (ALPA). ALPA supported the NPRM without change. The following presents the DAL comments received on the NPRM and the FAA's response to each comment.

DAL requested that the NPRM include the labor hours associated with the prerequisite service bulletins referenced in Airbus Service Bulletin A350-32-P037, dated July 30, 2019 (which is referenced in EASA AD 2021-0127). DAL stated that, depending on airplane configuration, the actions in the four prerequisite service bulletins may need to be done before doing the actions specified in referenced Airbus Service Bulletin A350-32-P037, dated July 30, 2019.

The FAA acknowledges the commenter's request. If an operator accomplishes prerequisite service information specified in Airbus Service Bulletin A350-32-P037, dated July 30, 2019 (which is referenced in EASA AD 2021-0127) there is an additional cost to those prerequisite service information. It is estimated that an operator may incur an additional 15 work-hours and up to an additional $1,275 in parts cost to accomplish the prerequisite service information. However, since accomplishment of the prerequisite service information may not be required to accomplish the required actions of this AD, these costs may not apply to all operators. The FAA has added this explanation to the Cost of Compliance paragraph in this AD, but not the additional costs for accomplishing the prerequisite service information.

DAL requested that the FAA add AD 2017-18-18, Amendment 39-19027 (82 FR 42579, September 11, 2017) (AD 2017-18-18) to paragraph (b) of the proposed AD (AD 2017-18-18 requires repetitive on-ground power cycles to reset the internal timer). DAL stated that Airbus Service Bulletin A350-42-P010, dated August 14, 2018, is a required prerequisite for doing the actions in Airbus Service Bulletin A350-32-P037, dated July 30, 2019 (which is referenced in EASA AD 2021-0127), and therefore, is a requirement for doing the actions in the proposed AD. DAL commented that Airbus Service Bulletin A350-42-P010, dated August 14, 2018, was approved for use in alternative method of compliance (AMOC) AIR-676-19-298, dated July 22, 2019, for accomplishing the requirements in paragraph (g) of AD 2017-18-18.

The FAA disagrees with the request. Paragraph (b) of this AD identifies superseded or revised ADs, or other ADs if the requirements of those ADs are affected ( i.e., this AD terminates all or part of another AD). AD 2017-18-18 does not meet any of those conditions, and therefore, is not considered an affected AD. The FAA has not changed this AD in this regard.

DAL requested that the FAA revise the applicability of the proposed AD. DAL stated that the applicability should be limited to Model A350-941 and -1041 airplanes having manufacturer serial numbers listed in the applicability paragraph of Airbus Service Bulletin A350-32-P037, dated July 30, 2019 (which is referenced in EASA AD 2021-0127). DAL commented that the applicability needs focus on the finite list of manufacturer serial numbers that were not produced with the required modification. DAL also commented that the applicability paragraph specified in EASA AD 2021-0127 has an exception for airplanes that have embodied Airbus modification 114420 in production. DAL stated that this logic requires the operator to actively verify that the actions in EASA AD 2021-0127 have been accomplished on every new airplane in production.

The FAA disagrees with revising the applicability of this AD. The applicability of this AD was coordinated with EASA and determined to be necessary to address those airplanes affected by the unsafe condition. In addition, the applicability of an AD takes precedence over the effectivity listed in any service bulletin. Excluding airplanes in the applicability ensures that operators make a definitive determination of whether an airplane is affected. Once an airplane has been delivered to an operator, it is the operator's responsibility to ensure compliance with the AD actions. The FAA has not changed this AD in this regard.

DAL requested that the FAA add an exception to paragraph (h) of the proposed AD to specify that the required for compliance (RC) language in paragraph (i)(3) of the proposed AD applies to paragraphs 3.C. and 3.E. of the Accomplishment Instructions of Airbus Service Bulletin A350-32-P037, dated July 30, 2019 (which is referenced in EASA AD 2021-0127). DAL stated that testing the airplane to verify if the correct software is installed as specified in paragraph 3.E. of the Accomplishment Instructions of Airbus Service Bulletin A350-32-P037, dated July 30, 2019, meets the intended level of safety in the proposed AD.

DAL also requested that paragraphs 3.A., 3.B., 3.D., 3.F., and 3.G of the Accomplishment Instructions of Airbus Service Bulletin A350-32-P037, dated July 30, 2019, not be included as RC. DAL stated that these paragraphs are not required to establish the intended level of safety in the proposed AD. DAL commented that no paragraphs in the service bulletin were identified as RC.

The FAA agrees to add an exception to paragraph (h)(3) of this AD for the reasons provided above. The FAA has revised paragraph (h) of this AD to specify that only paragraphs 3.C. and 3.E. of the Accomplishment Instructions of Airbus Service Bulletin A350-32-P037, dated July 30, 2019, must be accomplished if Airbus Service Bulletin A350-32-P037, dated July 30, 2019, is used for the modification required by EASA AD 2021-0127.

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

EASA AD 2021-0127 describes procedures for installing (updating) serviceable software for the braking and steering system. Serviceable software includes BCS software (SW) standard (STD) S5B, wheel steering control system (WSCS) SW STD S5B, and landing gear extension and retraction system (LGERS) SW STD S5A. 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 17 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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:

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0136, dated June 4, 2021 (EASA AD 2021-0136) (also referred to as the MCAI), to correct an unsafe condition for all Airbus SAS A330-201, A330-202, A330-203, A330-223, A330-243, A330-301, A330-302, A330-303, A330-321, A330-322, A330-323, A330-341, A330-342, A330-343, A330-841, A330-941, A340-211, A340-212, A340-213, A340-311, A340-312, A340-313, A340-541, A340-542, A340-642, and A340-643 airplanes. Model A340-542 and A340-643 airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this AD therefore does not include those airplanes in the applicability.

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 A330-200, -300, -800, and -900 series airplanes; and Model A340-200, -300, -500, and -600 series airplanes. The NPRM published in the Federal Register on October 7, 2021 (86 FR 55747). The NPRM was prompted by reports that the instructions on the doghouse door lock placard are unclear and incomplete. The NPRM proposed replacing the placard with an improved instruction placard, as specified in EASA AD 2021-0136. The NPRM also proposed to prohibit the installation of affected parts under certain conditions.

The FAA is issuing this AD to address possible incorrect operation of the doghouse door lock due to unclear and incomplete handling instructions on the door placard installed near the lock. This condition, if not addressed, could lead to failure of the latch, which could block the door in the closed position and prevent access to the emergency equipment inside the doghouse. See the MCAI for additional background information.

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

The FAA received an additional comment from Delta Air Lines (DAL). The following presents the comments received on the NPRM and the FAA's response.

DAL requested an exception to allow the use of internally manufactured placards having the same text and font size as the Diehl placard, part number (P/N) 1500500-00C844, specified in the Diehl Aviation service information referenced in EASA AD 2021-0136. DAL stated that if one of the installed Diehl placards were missing or damaged, alternate placard sources may be able to provide replacements faster while maintaining an acceptable level of safety.

The FAA does not agree with the requested exception. This AD mandates the use of a placard, P/N 1500500-00C844, specified in the Diehl Aviation service information. Operators may request to use an alternate placard through the alternative method of compliance (AMOC) process specified in the provisions of paragraph (i)(1) of this AD. Operators should provide justification that such an alternate placard meets all airworthiness requirements, not only that the placard would have the same text and font size. This AD has not been changed with regard to this request.

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

EASA AD 2021-0136 specifies procedures for replacing the instruction placard on the passenger cabin doghouse door. EASA AD 2021-0136 also prohibits the installation of doghouses with incorrect instruction placards.

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all GE Passport 20-17BB1A, Passport 20-18BB1A, and Passport 20-19BB1A model turbofan engines. The NPRM published in the Federal Register on November 29, 2021 (86 FR 67669). The NPRM was prompted by a report from GE of a manufacturing quality escape that identified a certain population of HPT rotor stage 1 disks that did not meet the design specification. GE determined that machining and inspection of the affected HPT rotor stage 1 disks was inconsistent with the engineering drawing. Further analysis by GE determined that the nonconformance at the forward and aft hooks of the HPT rotor stage 1 disks may cause the disks to fail prematurely and, therefore, the life limit of the affected HPT rotor stage 1 disks requires reduction. As a result, GE decreased the life limit of the affected HPT rotor stage 1 disks. In the NPRM, the FAA proposed to require revising the ALS of the GE Passport 20 Line Maintenance Manual, GEK 112062, and the operator's existing approved CAMP to incorporate a reduced life limit for certain HPT rotor stage 1 disks. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received one comment, from GE. The following presents the comment received on the NPRM and the FAA's response.

GE requested that the FAA correct the date of GE Service Bulletin (SB) PASSPORT20-A-72-00-0116-00A-930A-D, Issue 002, in this AD from July 22, 2021, to August 13, 2021. GE commented that the NPRM included the date of the draft SB and not the date of the published SB. GE stated that there was no change to the document content between the draft and publication dates.

The FAA agrees and has revised this AD as requested.

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

The FAA reviewed GE SB PASSPORT20-A-72-00-0116-00A-930A-D, Issue 002, dated August 13, 2021. This service information describes procedures for removing a certain population of HPT rotor stage 1 disks from service and provides serial numbers of the affected HPT rotor stage 1 disks. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA estimates that this AD affects 78 engines installed on airplanes of U.S. registry.

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

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

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

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

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

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

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

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

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

The FAA issued AD 2014-21-03, Amendment 39-17995 (79 FR 63809, October 27, 2014) (AD 2014-21-03), for Airbus Helicopters Model AS332L2 helicopters with a support part number (P/N) 332A25-1334-00 installed. AD 2014-21-03 required for helicopters with 3,900 hours time-in-service (TIS) or more, within 100 hours TIS and thereafter at intervals not exceeding 825 hours TIS, inspecting each support at the four attachment points for a crack. If there is a crack, AD 2014-21-03 required replacing the support before further flight. AD 2014-21-03 was prompted by EASA AD 2014-0080, dated March 27, 2014 (EASA AD 2014-0080), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Airbus Helicopters, formerly Eurocopter, Eurocopter France, Aerospatiale, Model AS332L2 helicopters with support P/N 332A25-1334-00 installed. EASA advised of several reports of cracks on the two front attachment points of the support, and that subsequent investigations determined pilot actions on the yaw pedals could generate detrimental loading conditions on the support attachment points and initiate a crack. This condition, if not addressed could lead to structural failure of the support, detachment of the damper unit, possible blocking of the yaw flight control channel, and reduced control of the helicopter. Accordingly, EASA AD 2014-0080 required repetitive inspections of the support and, if there is a crack, replacing the support.

Since the FAA issued AD 2014-21-03 Airbus Helicopters developed an improved support with improved fatigue and load carrying capabilities and issued service information that provides instructions for modifying the support.

Accordingly, EASA issued AD 2021-0086, dated March 24, 2021 (EASA AD 2021-0086), which superseded EASA AD 2014-0080. EASA AD 2021-0086 retains the inspection requirements of EASA AD 2014-0080 and requires replacement of any affected part with a serviceable part. EASA AD 2014-0086 also expands the applicability to include all Model AS332L2 helicopters. See EASA AD 2021-0086 for additional background information.

EASA AD 2021-0086 specifies procedures for repetitively inspecting the support at the four attachment points in accordance with the instructions of the service information. EASA AD 2021-0086 also specifies procedures for modifying the helicopter by replacing an affected part with an improved part, which is a terminating action for the repetitive inspections. EASA AD 2021-0086 prohibits installing any affected part on any helicopter.

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

The FAA reviewed Airbus Helicopters Alert Service Bulletin No. AS332-05.00.98, Revision 1, dated February 10, 2021 (ASB AS332-05.00.98 Rev 1), which specifies procedures to inspect for cracks on the support at the four attachments of the yaw damper. ASB AS332-05.00.98 Rev 1 specifies if any crack is found, replace the support by modifying your helicopter in accordance with the modification service bulletin.

The FAA also reviewed Airbus Helicopters Service Bulletin SB No. AS332-67.00.52, Revision 0, dated March 2, 2020, which specifies procedures to modify your helicopter by replacing the support with a new improved support (modification 0728207).

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

Although this AD does not explicitly restate the requirements of AD 2014-21-03, this AD retains certain requirements of AD 2014-21-03. Those requirements are referenced in EASA AD 2021-0086, which in turn, is referenced in paragraph (g) of this AD.

This AD requires accomplishing the actions specified in EASA AD 2021-0086, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD and except as discussed under “Differences Between this AD and EASA AD 2021-0086.”

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use certain civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, EASA AD 2021-0086 is incorporated by reference in this AD. This AD therefore, requires compliance with EASA AD 2021-0086 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in EASA AD 2021-0086 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2021-0086. Service information specified in EASA AD 2021-0086 that is required for compliance with it will be available at https://www.regulations.gov by searching for and locating Docket No. FAA-2022-0019 after the FAA final rule is published.

Where Note 1 of EASA AD 2021-0086 identifies the flight hours (FH) specified in Table 1 of EASA AD 2021-0086 are those accumulated by the affected part on April 3, 2014 (the effective date of EASA AD 2014-0080), since first installation on a helicopter, this AD requires using the total hours TIS accumulated by the helicopter as of the effective date of this AD. Where Table 1 of EASA AD 2021-0086 requires a compliance time of within 100 FH after April 3, 2014, this AD requires a compliance time of within 100 hours TIS after the effective date of this AD. Where paragraph (3) of EASA AD 2021-0086 allows credit for inspections of a helicopter as required in paragraph (1) of its AD if the inspections are accomplished before the effective date of its AD, this AD allows credit for the initial inspection of a helicopter as required by paragraph (1) of EASA AD 2021-0086, if accomplished before the effective date of this AD.

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

There are currently no domestic operators of these products. Accordingly, notice and opportunity for prior public comment are unnecessary, pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the foregoing reasons, 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-2022-0019; Project Identifier MCAI-2021-00371-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: Hal Jensen, Aerospace Engineer, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 950 L'Enfant Plaza N SW, Washington, DC 20024; telephone (202) 267-9167; email hal.jensen@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 prior notice and comment, RFA analysis is not required.

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

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

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

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 FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain GE GEnx-1B and GEnx-2B model turbofan engines. The NPRM published in the Federal Register on October 28, 2021 (86 FR 59667). The NPRM was prompted by a report from the manufacturer of two findings of sheared CDP bolts at engine shop visits during disassembly of the CDP bolted joint on GEnx-1B70/75/P2 and GEnx-2B67/P model turbofan engines. Subsequent investigation by the manufacturer determined that the fracture and liberation of the CDP bolts was caused by the inadvertent over-torque condition of the bolts during assembly and reassembly with a 11C4525P01 torque fixture or during assembly with a 11C4629P01 torque wrench. In one finding, the fractured CDP bolt caused damage to the stages 6-10 compressor rotor spool, CDP seal, and HPT rotor stage 1 disk. In the NPRM, the FAA proposed to require initial and repetitive inspections of the CDP bolted joint and, depending on the findings, a piece part inspection of the stages 6-10 compressor rotor spool, CDP seal, and HPT rotor stage 1 disk. As a terminating action, the NPRM also proposed to require operators to reassemble the CDP bolted joint using a 11C4888P01 torque wrench. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received comments from four commenters. The commenters were American Airlines (American), The Boeing Company (Boeing), GE Aviation, and United Airlines Engineering (UAL Engineering). The following presents the comments received on the NPRM and the FAA's response to each comment.

American requested that the FAA clarify paragraph (c), Applicability, by adding the affected engine serial numbers (S/Ns). American explained that operators do not have visibility to the engines that were assembled or reassembled by GE with the 11C4525P01 torque fixture, or engines that were assembled with the 11C4629P01 torque wrench. American noted that due to this lack of visibility, operators will need to rely on GE to provide the affected engine S/Ns, either in GEnx-1B Service Bulletin (SB) 72-0495 R00, dated May 11, 2021 (GEnx-1B SB 72-0495) or in response to an inquiry, which would place an excessive burden on the operators.

The FAA disagrees with adding engine S/Ns to the Applicability paragraph of this AD. According to GE, each maintenance, repair and overhaul (MRO) shop will have a record of what date the new 11C4888P01 torque wrench was implemented for use, and any CDP bolted joint reassembled at an engine shop visit prior to that implementation date would have used the prior 11C4525P01 torque fixture. Thus, for engines that have had an engine shop visit, each operator will be able to determine if their engine is affected based on the date of the last engine shop visit and the date that the particular MRO shop implemented the new tool. For engines that have not had an engine shop visit, Paragraph 1.A, Table A of GEnx-1B SB 72-0495 and Paragraph 1.A, Table A of GE GEnx-2B SB 72-0433 R00, dated May 11, 2021 define which engine S/Ns are affected based on production records.

GE Aviation requested that the FAA update the language in paragraph (g)(2) of this AD to incorporate a reference to the terminating action contained in paragraph (h) of this AD. GE supported its request for change by explaining the additional reference will ensure clear understanding of the requirements.

The FAA disagrees with updating paragraph (g)(2) of this AD to incorporate a reference to the terminating action in paragraph (h) of this AD. Referencing paragraph (h) within paragraph (g)(2) is unnecessary.

UAL Engineering requested that the FAA incorporate the terminating action in paragraph (h) of this AD as a requirement in paragraph (g)(3) of this AD. UAL Engineering explained that requiring the terminating action within paragraph (g)(3) of this AD would eliminate any ambiguity involving the reassembly of the CDP bolted joint, which could potentially lead to the use of a non-conforming tool and additional repetitive inspections.

The FAA disagrees with revising the required action as proposed by UAL Engineering. MRO shops no longer use the 11C4525P01 torque fixture. All MRO shops have implemented the use of the updated 11C4888P01 torque wrench. Therefore, if a piece part inspection is required pursuant to paragraph (g)(3) of this AD, the CDP bolted joint will be reassembled with the updated 11C4888P01 torque wrench. The non-conforming tool will not be used, and therefore will not drive any additional repetitive inspections after a reassembly is performed following a piece part inspection.

Boeing expressed support for the AD as written.

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

The FAA reviewed GE GEnx-1B SB 72-0495 R00, dated May 11, 2021 (GE GEnx-1B SB 72-0495) and GE GEnx-2B SB 72-0433 R00, dated May 11, 2021 (GEnx-2B SB 72-0433). GEnx-1B SB 72-0495 describes procedures for the inspection of the CDP bolted joint components on GEnx-1B model turbofan engines. GEnx-2B SB 72-0433 describes procedures for the inspection of the CDP bolted joint components on GEnx-2B model turbofan engines. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA estimates that this AD affects 320 engines installed on 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 additional inspections that would be required based on the results of the proposed inspection. The agency has no way of determining the number of aircraft that might need these inspections.

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 Entity List (supplement no. 4 to part 744 of the EAR) identifies entities for which there is reasonable cause to believe, based on specific and articulable facts, that the entities have been involved, are involved, or pose a significant risk of being or becoming involved in activities contrary to the national security or foreign policy interests of the United States. The EAR (15 CFR parts 730-774) impose additional license requirements on, and limit the availability of most license exceptions for, exports, reexports, and transfers (in-country) to listed entities. The license review policy for each listed entity is identified in the “License Review Policy” column on the Entity List, and the impact on the availability of license exceptions is described in the relevant Federal Register document adding entities to the Entity List. BIS places entities on the Entity List pursuant to part 744 (Control Policy: End-User and End-Use Based) and part 746 (Embargoes and Other Special Controls) of the EAR.

The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and makes all decisions to remove or modify an entry by unanimous vote.

This rule implements the decision of the ERC to add seven entities under seven entries to the Entity List. The entities are located in the People's Republic of China (China), Pakistan, and the UAE. Of the seven entries, one is located in China, five are located in Pakistan, and one is located in the UAE.

The ERC determined to add Chemtech International (Private) Limited, Engineering Materials and Equipment Co., Inspectech, Value Additions (Pvt) Ltd., and X-Cilent Engineering, all under the destination of Pakistan, and Odyssey General Trading FZC, under the destination of the UAE, to the Entity List under §§ 744.2, which describes restrictions on certain nuclear end-users, and 744.11(b) of the EAR.

In addition, the ERC determined to add Jiangsu Tianyuan Metal Powder Co. Ltd. to the Entity List under §§ 744.11(b), 744.20 (license requirements that apply to certain sanctioned entities), and 746.4 (North Korea) of the EAR. The entity is added to the Entity List under the destination of China based on a determination that was made by the U.S. Department of State (84 FR 23627) that it engaged in activities that warranted the imposition of measures pursuant to Section 3 of the Iran, North Korea, and Syria Nonproliferation Act (Pub. L. 106-178).

Pursuant to §§ 744.2, 744.11(b), 744.20, and 746.4 of the EAR, the ERC determined that the conduct of the above-described entities raises sufficient concerns that prior review, via the imposition of a license requirement for exports, reexports, or transfers (in-country) of all items subject to the EAR involving these seven entities and the possible issuance of license denials or the possible imposition of license conditions on shipments to these entities, will enhance BIS's ability to prevent violations of the EAR or otherwise protect U.S. national security or foreign policy interests.

For the entities added to the Entity List in this final rule, BIS imposes a license requirement that applies to all items subject to the EAR. In addition, no license exceptions are available for exports, reexports, or transfers (in-country) to the persons being added to the Entity List in this rule. For the one entity being added to the Entity List under China, BIS imposes a license review policy of a presumption of denial. For the five entities being added under Pakistan and one entity being added under the UAE, BIS imposes the license review policy set forth in § 744.2(d) of the EAR. The acronym “a.k.a.,” which is an abbreviation of ‘also known as,’ is used in entries on the Entity List to identify aliases, thereby assisting exporters, reexporters and transferors in identifying entities on the Entity List.

For the reasons described above, this final rule adds the following seven entities under seven entries to the Entity List and includes, where appropriate, aliases:

• Odyssey General Trading FZC

This rule revises the Entity List entries of Huawei Cloud Brazil, under the destination of Brazil, and Huawei Technologies Co. Ltd. and Wavelet, under the destination of China. This final rule corrects a typographical error in the city name for the address listed for the existing entity for Huawei Cloud Brazil. This final rule also revises the entry for Wavelet by adding the punctuation necessary to delineate between the addresses that are already listed. This corrects an error made in the original publication of the rule adding Wavelet to the Entity List, which failed to separate the entry's address in Shenzhen, China, from its address in Hong Kong, with the appropriate punctuation.

Additionally, BIS is revising the Entity List to mitigate confusion, by combining the two existing entries entitled “Huawei Technologies Co. Ltd.” This change does not alter BIS policy regarding the entries. Currently, the Entity List includes one entry for “Huawei Technologies Co., Ltd.” at a Hong Kong address, and a second entry for the same entity with addresses of multiple other locations in China. This rule combines the two entries into one. As the confusion created by the two entries kept the Federal Register from implementing changes to a previous rule (86 FR 71557), this rule also adds three aliases (HMN Technologies, Huahai Zhihui Technology Co., Ltd., and HMN Tech) under one of Huawei Technologies Co., Ltd.'s affiliated entities, Huawei Marine Networks, to the newly combined entry.

Shipments of items removed from eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) as a result of this regulatory action that were enroute aboard a carrier to a port of export, reexport, or transfer (in-country), on February 14, 2022, pursuant to actual orders for export, reexport, or transfer (in-country) to or within a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR).

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4801-4852). ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.

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

2. Notwithstanding any other provision of law, no person is required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by OMB under control number 0694-0088, Simplified Network Application Processing System, which includes, among other things, license applications and commodity classification, and carries a burden estimate of 29.6 minutes for a manual or electronic submission for a total burden estimate of 31,835 hours. Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule.

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

4. Pursuant to section 1762 of the Export Control Reform Act of 2018, this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date.

5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

The SCSEP, authorized by title V of the Older Americans Act of 1965 (OAA) and most recently reauthorized in 2020, is the only federally sponsored employment and training program targeted specifically to low-income, older individuals who want to enter or reenter the workforce. The program provides subsidized work experience training for low-income persons 55 years or older who are unemployed and have poor employment prospects. The dual goals of the program are to promote useful community service employment activities and to move SCSEP participants into unsubsidized employment so that they can achieve economic self-sufficiency.

In the Supporting Older Americans Act of 2020, Public Law 116-131 (the Act), Congress amended title V of the OAA to make certain changes to the SCSEP that would take effect 1 year from the March 25, 2020, enactment of the Act, i.e., March 25, 2021. First, the Act makes an individual who “has been incarcerated within the last 5 years or is under supervision following release from prison or jail within the last 5 years” eligible for priority of service over those individuals who meet only the basic SCSEP eligibility criteria related to age, income, and employment. Public Law 116-131, sec. 401(a)(3)(B)(iii); 42 U.S.C. 3056p(b)(2)(H). Second, the Act adds individuals who “have been incarcerated within the last 5 years or are under supervision following release from prison or jail within the last 5 years,” to the list of categories for which the Department is required to authorize any SCSEP grantee to provide an increased period of participation if the relevant SCSEP grantee has made such a request. Public Law 116-131, sec. 401(a)(3)(A)(iii); 42 U.S.C. 3056p(a)(3)(B)(ii)(VI). Third, the Act revises the definition of “individuals with barriers to employment” to include “eligible individuals who have been incarcerated or are under supervision following release from prison or jail.” Public Law 116-131, sec. 401(a)(2); 42 U.S.C. 3056l(e)(1). Finally, the Act requires State Plans to identify and address the relative distribution of “eligible individuals who have been incarcerated within the last 5 years or are under supervision following release from prison or jail within the last 5 years.” Public Law 116-131, sec. 401(a)(1)(C); 42 U.S.C. 3056a(a)(4)(C)(v).

In this DFR, the Department is incorporating the statutory changes described above into the SCSEP program regulations at 20 CFR part 641.

The Department will consider comment on issues related to this action. If the Department receives no significant adverse comment, the Department will publish a Federal Register document confirming the effective date of the DFR and withdrawing the companion notice of proposed rulemaking (NPRM) published elsewhere in this issue of the Federal Register . Such confirmation may include minor stylistic or technical changes to the DFR. For the purpose of judicial review, the Department views the date of confirmation of the effective date of the DFR as the date of promulgation.

In direct final rulemaking such as this, the Department is publishing a DFR which will go into effect unless the Department receives significant adverse comment within the comment period. The Department is also concurrently publishing a virtually identical NPRM. The Department plans to confirm the date that this DFR goes into effect through a separate Federal Register document. If the Department receives a significant adverse comment, it will withdraw this DFR and treat such comment as a response to the NPRM.

For purposes of this DFR, a significant adverse comment is one that explains: (1) Why the DFR is inappropriate, including challenges to its underlying premise or approach; or (2) why the DFR will be ineffective or unacceptable without a change. In determining whether a comment necessitates withdrawal of this DFR, the Department will consider whether the comment raises an issue serious enough to warrant a substantive response. The Department will not consider a comment recommending an additional amendment to this regulation to be a significant adverse comment unless the comment states why the DFR would be ineffective without the addition.

In addition to publishing this DFR, the Department is publishing an NPRM in the Federal Register . The comment period for the NPRM runs concurrently with that of the DFR. The Department will treat comments received on the companion NPRM as comments on the DFR. Similarly, the Department will consider comments submitted to the DFR as comments to the companion NPRM. Therefore, if the Department receives a significant adverse comment on either this DFR or the NPRM, it will withdraw this DFR and proceed with the companion NPRM. In the event the Department withdraws the DFR because of significant adverse comment, the Department will consider all timely comments received in response to the DFR when it continues with the NPRM. After considering all comments to the DFR and the NPRM, the Department will decide whether to publish a new final rule or confirm the date that this DFR goes into effect through a separate Federal Register document.

The Department has determined that the subject of this rule is suitable for DFR because the Administrative Procedure Act authorizes an agency to issue a rule without notice and comment when, as here, “the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). The Department for good cause finds that notice and comment rulemaking would be unnecessary because this DFR almost entirely makes conforming amendments to the SCSEP program regulations to align with changes required by the Act, which have already become effective. Accordingly, no significant adverse comments are anticipated.

The Department is making the following changes to implement the provisions of the Act. First, the Department is revising § 641.140 to define formerly incarcerated individuals as individuals who “were incarcerated at any point within the last 5 years,” or “were under supervision at any point within the last 5 years, following release from prison or jail.” The definition also specifies that the referenced 5-year period means the 5 years preceding the date of first determination of program eligibility, as described in § 641.505, for initial enrollment into the program. The current regulation does not include a definition of formerly incarcerated individuals, but the Department is defining the term in this DFR based upon language provided in the Act, which makes an individual who “has been incarcerated within the last 5 years or is under supervision following release from prison or jail within the last 5 years” eligible for priority enrollment. Public Law 116-131, sec. 401(a)(3)(B)(iii); 42 U.S.C. 3056p(b)(2)(H). The definition included in this DFR also contains an explanation of the meaning of the 5-year period specified in the Act in order to clarify the meaning of the phrase “within the last 5 years.” The Act is silent about how to calculate the 5-year period. The Department has determined that connecting this date to the individual's possible participation in the SCSEP program aligns with the intent of the amendments and that using the “date of first determination of program eligibility” as described in § 641.505 provides a readily available date for grantees to reference when determining individuals' eligibility for the program.

The Department is also revising § 641.140 to include “formerly incarcerated individuals” in the definition of “most-in-need.” The existing definition of most-in-need is made up of all the categories of individuals for whom the grantees may request be made eligible for increased periods of participation (the list is at 42 U.S.C. 3056p(a)(3)(B)(ii)) and the categories of individuals who receive priority enrollment (the list in 42 U.S.C. 3056p(b)(2)). Under sec. 401(a)(3) of the Act, individuals eligible for increased periods of participation now include individuals who “have been incarcerated within the last 5 years or are under supervision following release from prison or jail within the last 5 years,” and the priority of service list now includes individuals who “ha[ve] been incarcerated within the last 5 years or [are] under supervision following release from prison or jail within the last 5 years.” Consistent with the Act's addition of “formerly incarcerated individuals” to these two lists, the Department is adding “are formerly incarcerated as defined in this section” to the § 641.140 definition of “most-in-need.” For purposes of clarity, the Department also has restructured the definition of “most-in-need” to present the list of most-in-need individuals as a numbered list.

Similarly, based on amendments made in the Act, the Department is revising § 641.325(b) to comply with the Act's requirement that the State Plan identify and address the relative distribution of “eligible individuals who have been incarcerated within the last 5 years or are under supervision following release from prison or jail within the last 5 years.” Public Law 116-131, sec. 401(a)(1)(C); 42 U.S.C. 3056a(a)(4)(C)(v). Currently, § 641.325(b) lists information that must be included in the State Plan, including the relative distribution of certain individuals eligible for the program. Pursuant to the Act's requirement, see 42 U.S.C. 3056a(a)(4)(C)(v), the Department is revising § 641.325(b) to add “[e]ligible individuals who are formerly incarcerated individuals as defined in § 641.140” to the list of eligible individuals on whom the State Plan must provide information regarding relative distribution.

Additionally, the Department is revising §§ 641.420 and 641.520 to incorporate the Act's requirement that eligible individuals who “[have] been incarcerated within the last 5 years or [are] under supervision following release from prison or jail within the last 5 years” receive priority enrollment. Public Law 116-131, sec. 401(a)(3)(B)(iii); 42 U.S.C. 3056p(b)(2)(H). Paragraphs (a)(1) through (8) of § 641.520 list the characteristics that grantees and sub-recipients must consider when determining whether to provide eligible individuals with priority. Pursuant to the Act, see 42 U.S.C. 3056p(b)(2)(H), the Department is revising this list to include new paragraph (a)(9), which provides priority to individuals who are formerly incarcerated individuals, as defined in § 641.140. Accordingly, the Department is also making a minor technical change to § 641.420(e) to update the reference to § 641.520(a) to account for the addition of paragraph (a)(9) in § 641.520.

The Department is also revising §§ 641.570 and 641.710 to integrate the Act's requirement that the Secretary authorize a grantee to increase the period of participation for individuals who “have been incarcerated within the last 5 years or are under supervision following release from prison or jail within the last 5 years.” Public Law 116-131, sec. 401(a)(3)(A)(iii); 42 U.S.C. 3056p(a)(3)(B)(ii)(VI). Existing SCSEP regulations at § 641.570(b) list the categories of individuals for whom the Department will provide increased periods of participation if requested by the grantee. Pursuant to the Act, the Department has added new paragraph (b)(6), which states that individuals who are formerly incarcerated individuals, as defined in § 641.140 are, upon a grantee's request, eligible for an extended period of individual participation. Additionally, existing SCSEP regulations at § 641.710 define core performance measures, including “service to the [m]ost-in-need” (§ 641.710(g)). Consistent with the change to the most-in-need definition at § 641.140, discussed above, the Department has added new paragraph at § 641.710(g)(14) to include individuals who “[a]re formerly incarcerated individuals as defined in § 641.140” to the list of individuals characterized as most-in-need. See Public Law 116-131, sec. 401(a)(3); 42 U.S.C. 3056p(a)(3)(B)(ii)(IV), (b)(2)(H).

Finally, sec. 401(a)(2) of the Act revises the definition of “individuals with barriers to employment” in the OAA to include “eligible individuals who have been incarcerated or are under supervision following release from prison or jail.” Public Law 116-131, sec. 401(a)(2); 42 U.S.C. 3056l(e)(1). This section of the OAA requires certain national SCSEP grantees to give special consideration to selecting subgrantee organizations with demonstrated expertise in serving individuals with barriers to employment. Paragraph (d) of § 641.881(d) is the corresponding regulatory provision to implement this section of the OAA, stating that for purposes of this section, the term “individuals with barriers to employment” includes “minority individuals, Indian individuals, individuals with greatest economic need, and most-in-need individuals.” The Department notes that because the existing regulatory text in § 641.881(d) references “most-in-need individuals,” the regulatory text does not require change to align with the Act. The changes explained above that add formerly incarcerated individuals to the most-in-need definition at § 641.140 and to the list of most-in-need individuals at § 641.710(g) have the effect of including formerly incarcerated individuals in the reference to most-in-need individuals in the existing definition of barriers to employment at § 641.881(d)(2).

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., requires the Department to evaluate the economic impact of this rule with regard to small entities. The RFA defines small entities to include small businesses, small organizations including not-for-profit organizations, and small governmental jurisdictions. The Department must determine whether the rule imposes a significant economic impact on a substantial number of such small entities.

There are 77 SCSEP grantees; 50 of these are States and are not small entities as defined by the RFA. Six grantees are governmental jurisdictions other than States (four grantees are territories, such as Guam; one grantee is Washington, DC; and another grantee is Puerto Rico). Governmental jurisdictions must have a population of less than 50,000 to qualify as a small entity for RFA purposes and the population of these 6 SCSEP grantees each exceeds 50,000. The remaining 21 grantees are non-profit organizations, which includes some large, national non-profit organizations.

The Department has determined that this DFR will impose a negligible additional burden on small entities. SCSEP grantees already review their policies on a regular basis to align with guidance and the activities related to this DFR will only add one more item to consider during these activities. SCSEP grantees also already determine eligibility on a regular basis and the additional population category is only an additional factor to consider. Whatever negligible costs that the new regulation requires of SCSEP grantees is covered by SCSEP administrative costs and programmatic activity costs funding.

The Department certifies that this DFR does not impose a significant economic impact on a substantial number of small entities.

Under Executive Order (E.O.) 12866, Office of Management and Budget's (OMB's) Office of Information and Regulatory Affairs determines whether a regulatory action is significant and, therefore, subject to the requirements of the Executive order and review by OMB. 58 FR 51735 (Oct. 4, 1993).

Section 3(f) of E.O. 12866 defines a “significant regulatory action” as an action that is likely to result in a rule that: (1) Has an annual effect on the economy of $100 million or more, or adversely affects in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as economically significant); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O. Id. OMB has determined that this DFR is not a “significant regulatory action” under sec. 3(f) of E.O. 12866.

E.O. 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; it is tailored to impose the least burden on society, consistent with achieving the regulatory objectives; and in choosing among alternative regulatory approaches, the agency has selected those approaches that maximize net benefits. E.O. 13563 recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.

OMB waived review of this rulemaking because it is not a significant regulatory action.

This DFR is not subject to the requirements of the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3501 et seq. ) because it does not contain a collection of information as defined in 44 U.S.C. 3502(3). The Department previously submitted to OMB revision requests to the three information collections affected by the statute in this DFR, which were subsequently approved by OMB. See Information Collection Request (ICR) Reference Numbers 202112-1205-003 (OMB Control Number 1205-0521), 202108-1205-007 (OMB Control Number 1205-0040), and 202103-1205-001 (OMB Control Number 1205-0448).

For purposes of the Unfunded Mandates Reform Act of 1995, this rule does not include any Federal mandate that may result in increased expenditures by State, local, and tribal governments in the aggregate of more than $100 million, or increased expenditures by the private sector of more than $100 million.

The Department has reviewed this rule in accordance with E.O. 13132 regarding federalism and has determined that it does not have “federalism implications.” The rule does not “have substantial direct effects on the States, on the relationship between the [N]ational [G]overnment and the States, or on the distribution of power and responsibilities among the various levels of government.” This DFR updates, defines, and implements eligibility requirements, waiver factors, and performance measures for the SCSEP. While States are SCSEP grantees, this rule merely makes minor changes to currently ongoing data collection processes. Requiring State grantees to implement these changes does not constitute a “substantial direct effect” on the States, nor will it alter the relationship or responsibilities between the Federal and State governments.

The Privacy Act of 1974, 5 U.S.C. 552a, provides safeguards to individuals concerning their personal information that the Government collects. The Privacy Act requires certain actions by an agency that collects information on individuals when that information contains personally identifiable information, such as Social Security numbers (SSNs) or names. Because SCSEP participant records are maintained by SSN, the Privacy Act applies here.

A key concern is for the protection of participant SSNs. Grantees must collect the SSN in order to pay participants properly for their community service work in host agencies. When grantees send participant files to the Department for aggregation, the transmittal is protected by secure encryption. When participant files are retrieved within the internet-based SCSEP data management system, only the last four digits of the SSN are displayed. Any information that is shared or made public is aggregated by grantee and does not reveal personal information on specific individuals.

The Department works diligently to ensure the highest level of security whenever personally identifiable information is stored or transmitted. All contractors that have access to individually identifying information are required to provide assurances that they will respect and protect the confidentiality of the data. The Department's Office the Chief Information Officer has been an active participant in the development and approval of data security measures.

In addition to the above, the Department provides a Privacy Act Statement to grantees for distribution to all participants. The Department advised grantees of the requirement in Training and Employment Guidance Letter No. 39-11 (June 28, 2012). Participants receive this information when they meet with a caseworker or intake counselor. When the Department monitors the programs, implementation of this term is included in the reviews.

For the reasons discussed in the preamble, the Department amends 20 CFR part 641 as follows:

Upon request, FDA has classified the adjunctive predictive cardiovascular indicator as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, by placing the device into a lower device class than the automatic class III assignment.

The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).

FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (see 21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate device by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).

FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act. Section 207 of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115) established the first procedure for De Novo classification. Section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144) modified the De Novo application process by adding a second procedure. A device sponsor may utilize either procedure for De Novo classification.

Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).

Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.

Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.

We believe this De Novo classification will enhance patients' access to beneficial innovation. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see section 513(f)(2)(B)(i) of the FD&C Act). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application to market a substantially equivalent device (see section 513(i) of the FD&C Act, defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device.

On September 26, 2016, FDA received Edwards Lifesciences, LLC's request for De Novo classification of the Acumen Hypotension Prediction Index (HPI) Feature Software. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.

We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.

Therefore, on March 16, 2018, FDA issued an order to the requester classifying the device into class II. In this final order, FDA is codifying the classification of the device by adding 21 CFR 870.2210. 1 We have named the generic type of device adjunctive predictive cardiovascular indicator, and it is identified as a prescription device that uses software algorithms to analyze cardiovascular vital signs and predict future cardiovascular status or events. This device is intended for adjunctive use with other physical vital sign parameters and patient information and is not intended to independently direct therapy.

FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.

FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.

At the time of classification, adjunctive predictive cardiovascular indicators are for prescription use only. Prescription devices are exempt from the requirement for adequate directions for use for the layperson under section 502(f)(1) of the FD&C Act (21 U.S.C. 352(f)(1)) and 21 CFR 801.5, as long as the conditions of 21 CFR 801.109 are met.

The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in the guidance document “De Novo Classification Process (Evaluation of Automatic Class III Designation)” have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 820, regarding quality system regulation, have been approved under OMB control number 0910-0073; and the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910-0485.

Therefore, under the Federal Food, Drug, and Cosmetic Act, and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 870 is amended as follows:

Upon request, FDA has classified the spore test strip as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by placing the device into a lower device class than the automatic class III assignment.

The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as postamendments devices because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).

FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (see 21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate device by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).

FDA may also classify a device through De Novo classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act. Section 207 of the Food and Drug Administration Modernization Act of 1997 established the first procedure for De Novo classification (Pub. L. 105-115). Section 607 of the Food and Drug Administration Safety and Innovation Act modified the De Novo application process by adding a second procedure (Pub. L. 112-144). A device sponsor may utilize either procedure for De Novo classification.

Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).

Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.

Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.

We believe this De Novo classification will enhance patients' access to beneficial innovation. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see section 513(f)(2)(B)(i) of the FD&C Act). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application (PMA) to market a substantially equivalent device (see section 513(i) of the FD&C Act, defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device.

For this device, FDA issued an order on July 1, 2011, finding the VERIFY S40 Biological Indicator Kit not substantially equivalent to a predicate not subject to PMA. Thus, the device remained in class III in accordance with section 513(f)(1) of the FD&C Act when we issued the order.

On August 1, 2011, FDA received STERIS Corporation's request for De Novo classification of the VERIFY Spore Test Strip for S40. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.

We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.

Therefore, on March 30, 2012, FDA issued an order to the requester classifying the device into class II. In this final order, FDA is codifying the classification of the device by adding 21 CFR 880.6887. 1 We have named the generic type of device spore test strip, and it consists of a carrier or strip with a known number of spores, at least 5 log 10 per strip, of known resistance to a particular liquid chemical sterilant in a liquid chemical sterilant processing system. A “no growth” result from the spore test strip after the specified predetermined incubation period indicates that the liquid chemical sterilization process achieved the conditions necessary to kill the specified minimum number of viable spores on the test strip, which is 5 log 10 spores/strip. It does not confirm the expected full performance of the liquid chemical sterilant processing cycle because full performance is a 6 log 10 spore kill in a full liquid chemical sterilization cycle.

FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.

FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.

The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in the guidance document “De Novo Classification Process (Evaluation of Automatic Class III Designation)” have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 820, regarding quality system regulation, have been approved under OMB control number 0910-0073; and the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910-0485.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 880 is amended as follows:

The HUD Office of Hearings and Appeals (OHA) is an independent judicial office within HUD's Office of the Secretary. The OHA is headed by the Chief Administrative Law Judge, who supervises the judges and the professional and administrative support staffs.

Each Administrative Judge and each Administrative Law Judge is appointed by the HUD Secretary as an Officer of the United States. The Judges also may be appointed through contracts with other U.S. Department heads and Federal Agency heads to conduct hearings and issue decisions on matters before their respective agencies.

The OHA Judges function as independent and impartial triers of fact responsible for presiding over adversarial hearings, and adjudicating appeals, based upon alleged violations of Federal statutes or their implementing regulations.

Hearing procedures are established by agency regulations and are guided by the rules applicable to trials in a U.S. district court. In each case, the judge makes an impartial decision based upon the law, and the facts established by the evidence.

This final rule updates HUD's regulations in 24 CFR parts 14, 17, 20, 26, 28, 30, 81, 103, 180, and 570, to reflect that the office's title is “Office of Hearings and Appeals,” as changed by the HUD Secretary. These HUD regulations contain outdated references to the “Office of Administrative Law Judges,” “Office of Appeals,” and “Board of Contract Appeals.” This final rule updates HUD regulations throughout Title 24 to reflect these changes. While this final rule updates those sections of Title 24 that use outdated language that also implicate the hearing procedures at 24 CFR part 180, there are other sections of Title 24 that rely on the hearing procedures at 24 CFR part 180, which do not require the conforming amendments made by this final rule, including 24 CFR parts 1, 3, 6, 8, and 146. These sections of Title 24 implement federal civil rights statutes, which continue to rely on 24 CFR part 180 for administrative enforcement procedures.

OHA was formed at the end of 2007 after the HUD Board of Contract Appeals, along with other agencies' boards of contract appeals, was consolidated into the Civilian Board of Contract Appeals. The Civilian Board of Contract Appeals is an independent tribunal housed within the U.S. General Services Administration, pursuant to section 847 of the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. 109-163, approved January 6, 2006). OHA was established to merge the non-procurement contract dispute functions previously performed by the HUD Board of Contract Appeals with the HUD Office of Administrative Law Judges. OHA remained as an independent office within the Office of the Secretary. This final rule will not change any existing OHA functions, but will avoid internal or external confusion as to its name, composition, location, and contact information. This final rule also removes an obsolete reference to a “hearing examiner” in 24 CFR 14.50, because this is a former title for Administrative Law Judges that is no longer used in the Federal Government.

This final rule also adds language to HUD's regulations in 24 CFR 20.1 to explain that Administrative Law Judges are appointed by the HUD Secretary as Officers of the United States, pursuant to the Appointments Clause of the United States Constitution. The HUD Administrative Law Judges have also been appointed by other U.S. Department heads and Federal Agency heads to conduct hearings and issue decisions on matters before their respective agencies. The requirement of U.S. Department and Federal Agency heads to appoint Administrative Law Judges was recently recognized by the Supreme Court in Lucia v. SEC, 585 U.S. __ (2018). HUD is adding this language to its regulations in response to this.

Finally, this final rule clarifies the required qualifications for both Administrative Judges and Administrative Law Judges at 24 CFR 20.3(d) in accordance with the Office of Personnel Management's requirements and regulations at 5 CFR part 930. All of HUD's Administrative Judges and Administrative Law Judges are currently actively licensed attorneys at law.

Generally, HUD publishes a rule for public comment before publishing a rule for effect, in accordance with HUD's regulations on rulemaking at 24 CFR part 10. However, §  10.1 allows for omission of notice and public comment in cases of statements of policy, interpretive rules, rules governing HUD's organization or internal practices, if the Department determines in a particular case or class of cases that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. In this case, HUD has determined that prior public comment is unnecessary because this rule is exclusively concerned with fixing outdated references concerning OHA. Specifically, the regulatory amendments made by the final rule are technical and non-substantive in nature, since they are limited to updating the terminology used in HUD's regulations governing administrative hearings and appeals and adding language in accordance with Supreme Court precedent.

Under Executive Order 12866 (Regulatory Planning and Review) (58 FR 51735), a determination must be made whether a regulatory action is significant and, therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order.

Executive Order 13563 (Improving Regulations and Regulatory Review) (76 FR 3821) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. As discussed above in this preamble, this final rule updates outdated terminology and its changes are technical and non-substantive in nature. HUD determined that this rule was not significant under Executive Order 12866 and Executive Order 13563.

Executive Order 13132 (entitled “Federalism”) (64 FR 43255) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on State and local governments and is not required by statute, or the rule preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rule will not have federalism implications and would not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive order.

This final rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern, or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this final rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ).

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Because HUD determined that good cause exists to issue this rule without prior public comment, this rule is not subject to the requirement to publish an initial or final regulatory flexibility analysis under the RFA as part of such action.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)  1 requires that an agency prepare a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of UMRA also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. 2 However, the UMRA applies only to rules for which an agency publishes a general notice of proposed rulemaking. As discussed above, HUD has determined, for good cause, that prior notice and public comment is not required on this rule and, therefore, the UMRA does not apply to this final rule.

Accordingly, for the reasons described in the preamble, HUD amends 24 CFR parts 14, 17, 20, 26, 28, 30, 81, 103, 180, and 570 to read as follows:

Preamble acronyms and abbreviations. The EPA uses multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:

Organization of this document. The information in this preamble is organized as follows:

Table 1 of this preamble lists the associated regulated industrial source categories that are the subject of this final rule. Table 1 is not intended to be exhaustive, but rather provides a guide for readers regarding the entities that this action is likely to affect. The standards, once promulgated, will be directly applicable to the affected sources. Federal, state, local, and tribal government entities could be affected by this action because these entities are often the owners or operators of MSW landfills. As defined in the Initial List of Categories of Sources Under Section 112(c)(1) of the Clean Air Act Amendments of 1990 (57 FR 31576, July 16, 1992) and Documentation for Developing the Initial Source Category List, Final Report (see EPA-450/3-91-030; July 1992), the MSW Landfills source category is any facility that is an entire disposal facility in a contiguous geographical space where household waste is placed in or on land. An MSW landfill may also receive commercial waste, sludges, and industrial waste. An MSW landfill may also receive other types of Resource Conservation and Recovery Act (RCRA) Subtitle D wastes (see 40 CFR 257.2) such as commercial solid waste, nonhazardous sludge, conditionally exempt small quantity generator waste, and industrial solid waste. Portions of an MSW landfill may be separated by access roads. An MSW landfill may be publicly or privately owned.

Questions regarding the applicability of this final action to a particular entity should be directed to the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

In addition to being available in the docket, an electronic copy of this action is available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this final action at https://www.epa.gov/stationary-sources-air-pollution/municipal-solid-waste-landfills-national-emission-standards. Following publication in the Federal Register , the EPA will post the Federal Register version of this final action at this same website.

The statutory authority for revisions to the MSW Landfills NESHAP (40 CFR part 63, subpart AAAA) is provided by sections 112 and 301 of the Clean Air Act (CAA), as amended (42 U.S.C. 7412 and 7401). The statutory authority for revisions to the MSW Landfills New Source Performance Standards (40 CFR part 60, subpart XXX) and the Federal Plan (40 CFR part 62, subpart OOO) is provided by sections 111 and 301 of the CAA (42 U.S.C. 7411 and 7401).

The EPA finds that it has good cause to make these revisions immediately effective upon publication under section 553(d) of the Administrative Procedure Act, 5 U.S.C. 553(d). Section 553(d) provides that final rules shall not become effective until 30 days after publication in the Federal Register “except . . . as otherwise provided by the agency for good cause.” The purpose of this provision is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630 (DC Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history). Thus, in determining whether good cause exists to waive the 30-day delay, an agency should, “balance the necessity for immediate implementation against principles of fundamental fairness which require that all affected persons be afforded a reasonable amount of time to prepare for the effective date of its ruling.” Gavrilovic, 551 F.2d at 1105. The EPA has determined that there is good cause under section 553(d) for making this final rule effective immediately because this action clarifies the regulatory provisions that already apply to regulatory sources as well as the compliance deadline for controlled landfills that become subject to the 2016 MSW Landfills NSPS through modification is September 27, 2021. Making this rule effective immediately upon publication will minimize confusion and increase compliance certainty.

Under CAA section 307(b)(1), judicial review of this final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by April 15, 2022. Moreover, under section 307(b)(2) of the CAA, the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce these requirements. Section 307(d)(7)(B) of the CAA further provides that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for the EPA to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to the EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment, (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, WJC South Building, 1200 Pennsylvania Ave. NW, Washington, DC 20460, with a copy to both the person listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW, Washington, DC 20460.

The NESHAP regulates HAP emissions from MSW landfills that are either major or area sources, and applies to MSW landfills that have accepted waste since November 8, 1987, or have additional capacity for waste deposition and are major sources, are collocated with major sources, or are area source landfills with a design capacity equal to or greater than 2.5 million megagrams (Mg) and 2.5 million cubic meters (m 3 ) and have estimated uncontrolled emissions equal to or greater than 50 megagrams per year (Mg/yr) of non-methane organic compounds (NMOC). The NESHAP also applies to MSW landfills that have accepted waste since November 8, 1987, or have additional capacity for waste deposition and include a bioreactor and are major sources, are collocated with major sources, or are area source landfills with a design capacity equal to or greater than 2.5 million Mg and 2.5 million m 3 that were not permanently closed as of January 16, 2003.

The EPA completed the residual risk and technology review (RTR) for the Municipal Solid Waste (MSW) Landfills source category as regulated under the MSW Landfills NESHAP and promulgated amendments to 40 CFR part 63, subpart AAAA on March 26, 2020. (85 FR 17244). The rule finalized the EPA's determination that risks from this source category are acceptable and that the standards provide an ample margin of safety to protect public health and prevent an adverse environmental effect. There were no revisions to the NESHAP based on our analyses conducted under CAA section 112(f). However, the final rule clarified regulatory provisions related to emissions during periods of startup, shutdown, and malfunction (SSM); revised wellhead operational standards and corrective action to improve effectiveness and provide compliance flexibility; incorporated provisions from the MSW Landfills NSPS; and added requirements for electronic reporting of performance test results. The EPA subsequently corrected inadvertent errors in the cross-referencing and formatting of the final rule and made minor clarifications to the operational and reporting requirements. (85 FR 64398, October 13, 2020).

In August 2016, the EPA finalized changes to the NSPS for MSW landfills resulting from the EPA's under Clean Air Act (CAA) section 111. In order to avoid possible confusion regarding which MSW landfills would actually be subject to these changes, the EPA established a new subpart XXX (40 CFR part 60, subpart XXX) rather than merely updating the existing subpart WWW (40 CFR part 60, subpart WWW). One of the key changes in the new subpart XXX was the lowering of the emissions threshold for installing controls from 50 megagrams per year (Mg/yr) to 34 Mg/yr. (81 FR 59332, August 29, 2016).

At the same time, the EPA reviewed the existing emission guideline (EG) (subpart Cc) and determined it was appropriate to revise it consistent with the promulgation of the new NSPS subpart XXX. Rather than merely updating subpart Cc, the EPA determined that the most appropriate way to proceed was to establish a new subpart Cf. (81 FR 59276, August 29, 2016).

The promulgation of the MSW landfills EG (subpart Cf) triggered states' obligation to submit state plans applying the updated EG to existing sources located in their states. The EPA found a number of states failed to submit state plans for the 2016 MSW Landfills EG. (85 FR 14474, March 12, 2020). In May of 2021, the EPA promulgated a Federal plan to implement the 2016 MSW Landfills EG for existing MSW landfills located in jurisdications where the EPA had not approved a state or tribal plan. (86 FR 27756, May 21, 2021).

On April 13, 2021, the EPA proposed technical revisions and clarifications for the NESHAP for MSW Landfills and the EPA proposed clarifying amendments to the MSW Landfills NSPS. See 86 FR 19176. In this action, the EPA finalizes technical revisions and clarifications for the NESHAP for MSW Landfills established in the March 26, 2020, final rule. These technical revisions correct inadvertent errors in the NESHAP for MSW Landfills. This action clarifies the following: Wellhead monitoring requirements for the purpose of identifying excess air infiltration; delegation of authority to state, local, or tribal agencies for “emission standards;” applicability of the General Provisions to affected MSW landfills; and handling of monitoring data for combustion devices during periods of monitoring system breakdowns, repairs, calibration checks, and adjustments. This action also amends the MSW Landfills NSPS at 40 CFR part 60, subpart XXX, to clarify the timing of compliance for certain requirements of the MSW Landfills NSPS for existing MSW landfills that have been modified but previously triggered the requirement to install a GCCS under related MSW landfill rules. Additionally, the EPA is revising the definition of Administrator in the MSW Landfills Federal Plan that was promulgated on May 21, 2021, to clarify who is the administrator for the Federal plan and the administrator for a state plan. The EPA is also making some minor typographical corrections to NESHAP and the Federal Plan.

The EPA received two comment letters on the proposed revisions to the MSW Landfills NESHAP and NSPS (EPA-HQ-OAR-2002-0047-0111, EPA-HQ-OAR-2002-0047-0112). This section summarizes the EPA's response to those comments and indicates where the EPA has made additional changes to the proposed revisions to the MSW Landfills NESHAP and NSPS, in part, in response to those public comments. The changes include clarifications to the wellhead monitoring requirements [including test methods], and clarifications to the compliance times for various landfills, especially those modifying and becoming subject to 40 CFR part 60, subpart XXX. For more information, see the response to comments document, titled, Summary of Public Comments and EPA's Responses for the Proposed Corrections to National Emission Standards for Hazardous Air Pollutants: Municipal Solid Waste Landfills Residual Risk and Technology Review; Correction, which is available in the docket for this action.

Comment: Commenter (0111) suggested that the EPA add language to 40 CFR 63.1981(k) to clarify whether or not a 24-hour high temperature report is required for wells with landfill gas temperatures greater than 170 degrees Fahrenheit but less than an approved higher operating value (HOV).

Response: The EPA is amending 40 CFR 63.1981(j)(2) to clarify that the corrective action and corresponding timelines are not required if the landfill has an approved HOV. We added the following phrase to the end of 40 CFR 63.1981 (j)(2): “unless a higher operating temperature value has been approved by the Administrator for the well under this subpart or under 40 CFR part 60, subpart WWW; 40 CFR part 60, subpart XXX; or a Federal plan or EPA approved and effective state plan or tribal plan that implements either 40 CFR part 60, subpart Cc or 40 CFR part 60, subpart Cf.”

Comment: Commenter (0112) requested that EPA re-evaluate its proposal to require five 1-minute averages to be limited to 7 parts per million (ppm) variance. The commenter (0112) contends that the proposed requirement is unnecessarily prescriptive and says that although this low level of variability may be appropriate for some stationary sources of air emissions, such as controlled manufacturing processes, landfills may experience more variability than this limitation would allow. Commenter (0112) asserted that EPA has neither provided an explanation for why this requirement is necessary, nor shown that it can be achieved by landfills. Moreover, this requirement does not appear to be a necessary clarification or correction but rather an entirely new and unjustified compliance obligation. Therefore, unless and until EPA demonstrates a need for this requirement and that it is achievable by landfills, EPA should not finalize it in this corrections rule.

Response: The EPA believes that a limited variability provision would increase the data quality when collecting samples pursuant to 40 CFR 1961(a)(5)(vi)(D). However, the EPA agrees with the commenter that the CO concentrations can, under certain conditions ( e.g., underground fires), exhibit short term CO variability higher than 7 ppm. Therefore, the EPA has removed the 7 ppm variability requirement and may revisit this when more data is available.

Comment: Commenter (0112) requested that the EPA clarify language in 40 CFR 63.1961(a)(5)(vii) directing that enhanced monitoring “must begin 7 days after the first measurement” to provide that monitoring “must begin within 7 days to account for landfill operating hours, including weekends and holidays.”

Response: The EPA has revised 40 CFR 63.1961(a)(5)(vii) to clarify that the requirement is to begin enhanced monitoring 7 calendar days after the first measurement of landfill gas temperature greater than 62.8 degrees Celsius (145 degrees Fahrenheit). Decomposition of waste and monitoring a landfill are 24-hour per day/365 day per year operation where conditions change constantly. The EPA determined that it is reasonable and necessary to begin enhanced monitoring within 7 calendar days to keep a check on high temperature conditions in the landfill and minimize the potential for a landfill fire.

In the proposed rule, the EPA requested comment on whether the proposed modifications to the 2016 MSW Landfills NSPS regulations adequately clarify the expected compliance deadlines for controlled landfills that become subject to the 2016 MSW Landfills NSPS through modification and/or whether other approaches are needed to align the timing provisions of the 2016 MSW Landfills NSPS with the timing provisions of the MSW Landfills NESHAP. (86 FR 19176, 19182, April 13, 2021)

Comment: Commenter (0111) requested that the EPA should specify compliance deadlines for three categories of landfills:

(1) Landfills with an NMOC emission rate less than 34 megagrams per year that become subject to subpart XXX through modification;

(2) uncontrolled landfills with an NMOC emission rate between 34 and 50 megagrams per year that become subject to subpart XXX through modification; and

(3) controlled landfills that become subject to subpart XXX through modification.

Response: The EPA recognizes that from July 17, 2014 (the applicability date of the NSPS) to June 21, 2021 (the effective date of the Federal plan at 40 CFR part 62 subpart OOO), landfills that modify could become subject to 40 CFR part 60, subpart XXX after having previously been subject to 40 CFR part 62, subpart GGG; 40 CFR part 60, subpart WWW; or a state plan implementing 40 CFR part 60, subpart Cf or subpart Cc. By virtue of this final action, the EPA is clarifying that landfills that meet the definition of a “controlled landfill” would not receive an additional 30 months to comply when they transition to subpart XXX.

The EPA notes that after June 21, 2021, all three groups of landfills that modify as identified in this comment will have been previously subject only to either a state plan implementing 40 CFR part 62, subpart Cf, or 40 CFR part 62, subpart OOO to 40 CFR part 60, subpart XXX. The EPA is clarifying in this rule that compliance timing for landfills that become subject to subpart XXX after previously being subject to the Federal plan subpart OOO depends on whether the facility is a legacy controlled landfill, a controlled landfill or an uncontrolled landfill, and the results and timing of the landfill's NMOC emission rate report.

Landfills with an NMOC emission rate less than 34 megagrams per year that later become subject to subpart XXX through modification and have not installed controls should follow the requirements in subpart XXX, including the 30-month window to install and operate a GCCS. The landfill will submit their first NMOC report within 90 days of the date of construction or modification. The landfill could submit a revised NMOC report based on Tier 2 within 180 days of that first report, if desired.

For uncontrolled landfills with an NMOC emission rate equal to or greater than 34 but less than 50 megagrams per year that later become subject to subpart XXX through modification, we are clarifying that the 30-month clock for previously uncontrolled landfills will begin at the first report containing NMOC emissions greater than or equal to 34 Mg/yr NMOC that was submitted under any of the following subparts: 40 CFR part 60, subpart XXX or a state plan implementing subpart Cf; or 40 CFR part 62, subpart OOO. We are starting the 30-month clock at the NMOC report submitted under that subpart for these landfills with an NMOC emission rate equal to or greater than 34 but less than 50 megagrams per year because the landfill was not otherwise subject to any requirement to install and operate GCCS until they became subject to these subparts.

For controlled landfills that become subject to subpart XXX through modification, we do not intend to restart the 30-month clock for landfills reporting NMOC emissions greater than or equal to 50 Mg/yr NMOC under 40 CFR part 60, subpart WWW or Cc; or 40 CFR part 62, subpart GGG, and that submitted a design plan before the effective date of these 2021 subpart XXX amendments. These landfills already started the “control” process under the previous subparts and must stay on that previously triggered 30-month timeframe to install a GCCS in a timely manner.

Comment: Commenter (0112) disagreed with the EPA's proposal not to allow 30 months to install and operate a GCCS as the landfill transitions to a new subpart. However, the commenter (0112) recognized that landfills with emissions 50 Mg/yr NMOC or greater will be required to begin complying with the same requirements to install and operate GCCS pursuant to NESHAP AAAA as of September 28, 2021.

Response: For controlled landfills that become subject to subpart XXX through modification, the EPA does not agree that it would be appropriate to restart the 30-month clock for landfills reporting NMOC emissions greater than or equal to 50 Mg/yr NMOC under 40 CFR part 60, subpart WWW or Cc; or 40 CFR part 62, subpart GGG and that submitted a design plan before the effective date of these 2021 subpart XXX amendments. These landfills already started the “control” process under the previous subparts and it is reasonable to require these landfills to stay on that 30-month timeframe to install a GCCS in a timely manner. The commenter has not provided any information that would justify any further delay in the implementation of GCCS.

Comment: Commenter (0112) disagreed with using any subpart WWW reports between 34 and 50 Mg/yr NMOC as the trigger for the 30-month timeframe for installation of GCCS since this would not allow the landfill sufficient time to prepare a design plan and install the GCCS. The commenter (0112) suggested alternative regulatory text.

Response: The EPA recognizes that previous regulatory requirements are based on an emission rate threshold of 50 Mg/yr NMOC and that newer regulatory requirements are based on an emission rate threshold of 34 Mg/yr NMOC. With these technical revisions, we intend to clarify the application of the 30-month clock for previously uncontrolled landfills reporting NMOC emissions greater than or equal to 34 Mg/yr NMOC and less than 50 Mg/yr NMOC under 40 CFR part 60, subpart XXX or Cf; or 40 CFR part 62, subpart OOO. We are starting the 30-month clock at the NMOC report submitted under those subparts for those landfills that exceeded 34 Mg/yr NMOC because the 34-50 Mg/yr NMOC threshold did not apply until they became subject to these subparts.

However, we do not intend to restart the 30-month clock for landfills reporting NMOC emissions greater than or equal to 50 Mg/yr NMOC under 40 CFR part 60, subpart WWW or Cc; or 40 CFR part 62, subpart GGG and that submitted a design plan before the effective date of these 2021 subpart XXX amendments. These landfills already started the “control” process under the previous subparts and it is reasonable to require these landfills to stay on that 30-month timeframe to install a GCCS in a timely manner.

The EPA is revising 40 CFR 60.762(b)(2)(ii)(A) to read as follows:

This approach points to 40 CFR part 60, subpart XXX or 40 CFR part 62 (the Federal plan subpart OOO or state plans implementing subpart Cf). When these subpart XXX amendments are finalized, all “existing” landfills will be subject to the state and/or Federal plan implementing subpart Cf because the Federal plan became effective on June 21, 2021. Subpart OOO handles the legacy controllers separately and gives a full 30 months for landfills with NMOC emissions greater than 34 Mg/yr and less than 50 Mg/yr.

In this final action, the EPA is revising the definition of Administrator at 40 CFR 62.16730 in the MSW Landfills Federal Plan that was promulgated on May 21, 2021 (86 FR 27756). The revision makes the definition consistent with other Federal plans such as the Federal Plan Requirements for Sewage Sludge Incineration Units (40 CFR part 62, subpart LLL), which distinguishes between the administrator of the Federal plan and the administrator of a state plan. In developing the MSW Landfills Federal Plan, the EPA inadvertently retained the definition of Administrator from the Emission Guidelines (40 CFR part 60, subpart Cf), which was written in the context of states preparing a state plan. As currently written, the definition could be interpreted to allow non-delegated authority to implement and enforce the Federal plan. In the context of the Federal plan, the revised definition of Administrator clarifies that the EPA Administrator or his/her authorized representative have the authority to implement and enforce the Federal plan. To add clarity in the context of developing State plans, the EPA has further revised the definition of Administrator to clearly identify the director of the state air pollution control agency or his/her authorized representative, which will better allow states to incorporate by reference the Federal plan as their state rule applying to landfills in the state.

The EPA is also correcting typographical errors in the MSW Landfills NESHAP that were published in the Federal Register on March 26, 2020 (85 FR 17244) and the MSW Landfills Federal Plan that was published in the Federal Register on May 21, 2021 (86 FR 27756). In the MSW Landfills NESHAP, the EPA is correcting 40 CFR 63.1981(n) to change September 2, 2021 to September 27, 2021. In the MSW Landfills Federal Plan, the EPA is correcting a cross reference error in 40 CFR 62.16712(b) and (c). Both paragraphs incorrectly refer to 40 CFR 62.16712(c)(3), which does not exist. The correct reference is to 40 CFR 62.16712(d). Finally, the EPA is correcting the omission of the word “is” in 40 CFR 62.16714(a)(4), so that the correct reading is: The landfill is in the closed landfill subcategory and has an NMOC emission rate greater than or equal to 50 megagrams per year.

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. The EPA has determined that there is good cause for making these technical and typographical changes without prior proposal and opportunity for comment because, as explained here above, the technical correction to the definition of Administrator and the typographical changes are noncontroversial in nature and do not substantively change the requirements of the MSW Landfills regulations. Thus, notice and opportunity for public comment are unnecessary for these changes. The EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).

Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.

This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0505 for the NESHAP and OMB control number 2060-0697 for the NSPS. The revisions include technical corrections to the NESHAP and NSPS and do not pose any changes to the information collection burden for either.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, EPA concludes that the impact of concern for this rule is any significant adverse economic impact on small entities and that the agency is certifying that this rule will not have a significant economic impact on a substantial number of small entities if the rule has no net burden on the small entities subject to the rule. This action includes only technical corrections to provisions from the March 26, 2020, final RTR rulemaking and clarifying amendments to 2016 MSW Landfills NSPS and does not implement new requirements. We have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. Although state, local, or tribal governments own and operate landfills subject to these final amendments, this action includes only technical corrections to provisions from the March 26, 2020, final RTR rulemaking and clarifying amendments to the 2016 MSW Landfills NSPS and there are no impacts resulting from this regulatory action.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action has tribal implications as specified in Executive Order 13175. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments nor preempt tribal law. As explained in the March 26, 2020, final rule, the EPA previously identified one tribe that owns three landfills that are potentially subject to the MSW Landfills NESHAP. However, this action includes only technical corrections to provisions from the March 26, 2020, final RTR rulemaking and clarifying amendments to the subpart XXX NSPS and does not impose any new requirements on tribes.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629; February 16, 1994) because it does not establish an environmental health or safety standard. This regulatory action is a technical correction to a previously promulgated regulatory action and does not have any impact on human health or the environment.

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

For the reasons set forth in the preamble, the EPA amends 40 CFR parts 60, 62, and 63 as follows:

This is a synopsis of the Commission's Report and Order in CC Docket No. 02-6; FCC 22-8, adopted January 27, 2022 and released January 28, 2022. Due to the COVID-19 pandemic, the Commission's headquarters will be closed to the general public until further notice. The full text of this document is available at the following internet address: https://www.fcc.gov/document/fcc-connecting-tribal-libraries-through-e-rate-program-0.

1. The E-Rate program provides support to schools and libraries across the nation to obtain affordable, high-speed broadband services and internal connections to connect today's students and library patrons with next-generation learning opportunities and services. Since the beginning of the program, E-Rate support has helped libraries afford these services and provide free, public internet access to their communities. But for far too long, Tribal libraries have been unable to participate fully in the E-Rate program. This situation has exacerbated enduring inequities, as Tribal libraries often serve as a critical source of internet access in underserved areas across the nation.

2. The Commission takes steps to address one of the barriers to participation and clarify the eligibility of Tribal libraries for E-Rate program support by updating the definition of “library” in its E-Rate program rules to include Tribal libraries. By doing so, the Commission seeks to resolve a longstanding issue for Tribal libraries in the E-Rate program rules, consistent with Congressional action taken in 2018, and to encourage increased Tribal library access to affordable broadband connectivity through the E-Rate program.

3. To ensure that our nation's Tribal libraries and their library patrons have access to high-speed broadband and to encourage Tribal libraries' participation in the E-Rate program, the Commission now amends its E-Rate program rules to clarify that Tribal libraries are eligible for E-Rate support. Specifically, the Commission adds “Tribal library” to the definition of library in section 54.500 of the Commission's rules and removes the reference to Public Law 104-208, which contains the version of the Library Services and Technology Act (LSTA) enacted in 1996. All stakeholders submitting comments support this rule change, and no commenter opposed it.

4. Interested parties agree that this rule change is the first step in ensuring that Tribal libraries have access to funding to provide affordable internet access to their communities. These changes update the E-Rate program rules and ensure that the E-Rate program can support library services in Tribal communities. The changes align with both Congress' 2018 amendments to the LSTA and the Commission's Emergency Connectivity Fund program rules. Moreover, the changes will simplify administration of the E-Rate and Emergency Connectivity Fund programs for the Universal Service Administrative Company (USAC), which administers both programs and checks applicant eligibility. Consistent with the rules adopted for the Emergency Connectivity Fund program, the E-Rate rules clarify that Tribal libraries, which are by statute eligible for support from State library administrative agencies under the LSTA, are eligible for support from the E-Rate program. Receipt of LSTA funds by Tribal libraries is not required for participation in the E-Rate program.

5. These rule changes should also clarify and simplify E-Rate eligibility for Tribal libraries and, in time, will increase Tribal participation in the program. Comments filed by the American Library Association (ALA) and the Association of Tribal Archives, Libraries and Museums (ATALM) include preliminary results of a 2021 ATALM comprehensive digital inclusion survey, which note that only 12 percent of the Tribal libraries responding reported that they had ever applied, even fewer than the 15 percent of Tribal libraries that had previously reported receiving E-Rate support. This data is especially troubling, given that there is reduced broadband access in Tribal areas and libraries are often the “next best alternative for many Tribal families and households” to obtain internet access. Tribal governments and libraries have had issues interacting with and gaining support from State agencies. The Navajo Nation Telecommunications Regulatory Commission (NNTRC) describes how the Navajo Nation, which spans three states, began an internal process in 2018 to participate in the E-Rate program by engaging with the State library administrative agencies in Arizona, New Mexico, and Utah to establish whether its Chapter Houses were libraries eligible for assistance from those State library administrative agencies under the LSTA. NNTRC explains that it took several years and significant resources to determine eligibility, which it argues could have been avoided if the rules the Commission adopts here had been in place then.

6. Several commenters asked the Commission to clarify who can designate a Tribal library or to interpret the definition of Tribal library in a flexible manner. First, the Commission agrees that Tribal libraries can be designated by a Tribal Council. Second, the Commission understands that “what constitutes a library is reflective of the cultural, educational, and social needs of each tribe,” but also remind applicants that they must be eligible by statute for support under the LSTA to be eligible to participate in E-Rate. The Institute of Museum and Library Services, the federal agency with expertise in the LSTA and that provides Native American library grants, requires Native American libraries applying for Native American Library Services Enhancement Grants to demonstrate that they have three basic characteristics: “(1) regularly scheduled hours, (2) staff, and (3) materials available for library users.” The Commission believes that these characteristics are therefore appropriate for Tribal libraries seeking support from the E-Rate program. In response to commenters seeking eligibility for Tribal College libraries, the Commission reminds applicants that when the Commission first adopted its rules on library eligibility for E-Rate discounts, it determined that libraries must be independent entities, “whose budgets are completely separate from any schools (including, but not limited to elementary schools, colleges, and universities.” As such, Tribal libraries that are part of a Tribal College or university remain ineligible for E-Rate support at this time.

7. On the whole, the Commission expects this rule change to simplify the process for Tribal libraries to apply for E-Rate funding by clarifying their eligibility without requiring Tribal libraries to fit within the precise definitions that may be put in place by a State library administrative agency. By making Tribal library eligibility clear, the Commission aims to further the program goal of ensuring affordable access to high-speed broadband sufficient to support robust connectivity for Tribal libraries by increasing participation in the E-Rate program. The Commission also furthers the Commission's ongoing obligation to advance digital equity for all, including Indigenous and Native American persons, people of color, persons with disabilities, persons who live in rural or Tribal areas, and others who are or have been historically underserved, marginalized, or adversely affected by persistent poverty or inequality. By lowering the barriers to participating in the E-Rate program, the Commission hopes to narrow the digital divide in Tribal regions, “where increased digital inclusion will yield economic, educational, and healthcare outcome improvements.”

8. Outreach. Preliminary results of the 2021 ATALM comprehensive digital inclusion survey of Tribal libraries included in ALA and ATALM's comments show that “38% of respondents had not heard of the E-rate program, 30% were unsure if they were eligible, 13% said the application was too complicated, and 39% would like to learn more about the program.” The Commission agrees with commenters that these numbers demonstrate that the Commission needs to do more to increase awareness of the program and training opportunities among Tribal libraries. Therefore, in conjunction with this rule change, the Commission directs the Office of Native Affairs and Policy (ONAP) and the Wireline Competition Bureau (WCB), with assistance from the Tribal liaison at USAC, to target outreach efforts and program training for Tribal libraries.

9. Tribal library applicants face particular resource challenges in applying. Therefore, in addition to existing Tribal training materials, the Commission directs USAC, in coordination with ONAP and WCB, to develop training materials targeting Tribal libraries that may be provided during Tribal-specific outreach, as well as to its federal partners, like the Institute of Museum and Library Services, to build awareness and provide information about how to apply before the close of the funding year 2022 application filing window. In creating these targeted outreach goals, the Commission directs USAC to develop training materials focused on first-time E-Rate library applicants and to distribute these materials at national, regional, or local Tribal or library conferences. The Commission also directs ONAP and WCB to undertake efforts to coordinate with organizations like the ALA, ATALM, the American Indian Library Association and the Chief Officers of the State Library Agencies to spread awareness in the current and upcoming funding years.

10. Measuring Participation. Adopting these rule changes and targeting specific Tribal library outreach are important steps towards the Commission's goal of increasing participation and access to E-Rate support for Tribal libraries. The Commission also, consistent with the recommendation from the Government Accountability Office in 2016, seeks to determine whether the Commission is successfully achieving the E-Rate program's goals, including ensuring affordable access to high-speed broadband sufficient to support robust connectivity for all libraries and making the program's processes fast, simple, and efficient. To do so, the Commission now adopts new measures for these two goals by specifically measuring participation of Tribal libraries in future funding years and the speed of processing Tribal library applications, and the Commission directs USAC to measure progress towards achieving the Commission's program goals. By creating specific Tribal library participation performance measures, the Commission can monitor performance of the E-Rate program over time and assess whether the Commission's rules, policies, and outreach need to be revisited to draw more Tribal library applicants into the program.

11. Other Issues Raised. The importance of this rule clarification, combined with the E-Rate program's funding year calendar—which generally accepts funding applications during the first quarter of the calendar year for the upcoming school year—make speedy action critical. Therefore, to ensure these rule changes are effective before the close of the funding year 2022E-Rate application filing window, the Commission declines to address several of the issues raised by comments to the Tribal Libraries Notice of Proposed Rulemaking (NPRM), 86 FR 57097, October 14, 2021, regarding the E-Rate program at this time. The Commission appreciates the many comments raising broader issues with the E-Rate program and look forward to revisiting these issues.

12. Final Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission included an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the Schools and Libraries Universal Service Support Mechanism notice of proposed rulemaking, Tribal Libraries NPRM. The Commission sought written public comment on the proposals in the Tribal Libraries NPRM, including comment on the IRFA. The Commission did not receive any relevant comments in response to this IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

13. The Commission is required by Section 254 of the Communications Act of 1934, as amended, to promulgate rules to implement the universal service provisions of Section 254. On May 8, 1997, the Commission adopted rules to reform its system of universal service support mechanisms so that universal service is preserved and advanced as markets moved toward competition. Specifically, under the schools and libraries universal service support mechanism, also known as the E-Rate program, eligible schools, libraries, and consortia that include eligible schools and libraries may receive discounts for eligible telecommunications services, internet access, and internal connections.

14. Taking steps to close the digital divide is a top priority for the Commission. The E-Rate program provides a vital source of support to schools and libraries, ensuring that students and library patrons across the nation have access to high-speed broadband and essential communications services. In this document, the Commission updates the E-Rate program rules to be consistent with the amended Library Services and Technology Act (LSTA), and clarify that Tribal libraries are eligible to apply for and receive E-Rate funding.

15. There were no comments filed that specifically address the rules and policies proposed in the IRFA.

16. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rule(s) as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rule(s) in this proceeding.

17. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

18. Small Businesses, Small Organizations, Small Governmental Jurisdictions. The Commission's actions, over time, may affect small entities that are not easily categorized at present. The Commission therefore describes here, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States, which translates to 30.7 million businesses.

19. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2018, there were approximately 571,709 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.

20. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicates that there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 36,931 general purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, the Commission estimates that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

21. As noted, a “small entity” includes non-profit and small government entities. Under the schools and libraries universal service support mechanism, which provides support for elementary and secondary schools and libraries, an elementary school is generally “a non-profit institutional day or residential school that provides elementary education, as determined under state law.” A secondary school is generally defined as “a non-profit institutional day or residential school that provides secondary education, as determined under state law,” and not offering education beyond grade 12. A library includes “(1) a public library, (2) a public elementary school or secondary school library, (3) an academic library, (4) a research library, . . . . and (5) a private library, but only if the state in which such private library is located determines that the library should be considered a library for the purposes of this definition.” The rule changes adopted in this document update the definition of library to add Tribal libraries. For-profit schools and libraries, and schools and libraries with endowments in excess of $50,000,000, are not eligible to receive discounts under the program, nor are libraries whose budgets are not completely separate from any schools. Certain other statutory definitions apply as well. The SBA has defined for-profit, elementary and secondary schools and libraries having $6 million or less in annual receipts as small entities. In funding year 2017, approximately 103,699 schools and 11,810 libraries received funding under the schools and libraries universal service mechanism. Although the Commission is unable to estimate with precision the number of these entities that would qualify as small entities under SBA's size standard, the Commission estimates that fewer than 103,699 schools and 11,810 libraries might be affected annually by its action, notwithstanding the fact that more Tribal libraries may be encouraged to apply for funding under the rule change in the Report and Order.

22. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as “establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including voice over internet protocol (VoIP) services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.” The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. U.S. Census Bureau data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small.

23. All Other Telecommunications. The “All Other Telecommunications” category is comprised of establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing internet services or voice over internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry. The SBA has developed a small business size standard for “All Other Telecommunications”, which consists of all such firms with annual receipts of $35 million or less. For this category, U.S. Census Bureau data for 2012 shows that there were 1,442 firms that operated for the entire year. Of those firms, a total of 1,400 had annual receipts less than $25 million and 15 firms had annual receipts of $25 million to $49, 999,999. Thus, the Commission estimates that the majority of “All Other Telecommunications” firms potentially affected by its action can be considered small.

24. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census Bureau data for 2012 shows that there were 967 firms that operated for the entire year. Of this total, 955 firms employed fewer than 1,000 employees and 12 firms employed 1,000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of Wireless Telecommunications Carriers (except Satellite) are small entities.

25. Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite). Under the SBA small business size standard, a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census Bureau data for 2012 shows that there were 967 firms that operated for the entire year. Of this total, 955 firms had fewer than 1,000 employees and 12 firms had 1,000 employees or more. Thus under this category and the associated size standard, the Commission estimates that a majority of these entities can be considered small. According to Commission data, 413 carriers reported that they were engaged in wireless telephony. Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Therefore, based on Commission data, more than half of these entities can be considered small.

26. Internet Service Providers (Broadband). Broadband internet service providers include wired ( e.g., cable, digital subscriber line (DSL)) and VoIP service providers using their own operated wired telecommunications infrastructure fall in the category of Wired Telecommunication Carriers. Wired Telecommunications Carriers are comprised of establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. The SBA size standard for this category classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Consequently, under this size standard the majority of firms in this industry can be considered small.

27. Internet Service Providers (Non-Broadband). internet access service providers such as Dial-up internet service providers, VoIP service providers using client-supplied telecommunications connections and internet service providers using client-supplied telecommunications connections ( e.g., dial-up ISPs) fall in the category of All Other Telecommunications. The SBA has developed a small business size standard for All Other Telecommunications which consists of all such firms with gross annual receipts of $35 million or less. For this category, U.S. Census Bureau data for 2012 shows that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million. Consequently, under this size standard a majority of firms in this industry can be considered small.

26. Vendors of Infrastructure Development or Network Buildout. The Commission has not developed a small business size standard specifically directed toward manufacturers of network facilities. There are two applicable SBA categories in which manufacturers of network facilities could fall and each have different size standards under the SBA rules. The SBA categories are “Radio and Television Broadcasting and Wireless Communications Equipment” with a size standard of 1,250 employees or less and “Other Communications Equipment Manufacturing” with a size standard of 750 employees or less.” U.S. Census Bureau data for 2012 shows that for Radio and Television Broadcasting and Wireless Communications Equipment firms 841 establishments operated for the entire year. Of that number, 828 establishments operated with fewer than 1,000 employees, and 7 establishments operated with between 1,000 and 2,499 employees. For Other Communications Equipment Manufacturing, U.S. Census Bureau data for 2012 shows that 383 establishments operated for the year. Of that number 379 operated with fewer than 500 employees and 4 had 500 to 999 employees. Based on this data, the Commission concludes that the majority of Vendors of Infrastructure Development or “Network Buildout” are small.

27. Telephone Apparatus Manufacturing. This industry comprises establishments primarily engaged in manufacturing wire telephone and data communications equipment. These products may be stand-alone or board-level components of a larger system. Examples of products made by these establishments are central office switching equipment, cordless and wire telephones (except cellular), private branch exchange (PBX) equipment, telephone answering machines, local area network (LAN) modems, multi-user modems, and other data communications equipment, such as bridges, routers, and gateways. The SBA has developed a small business size standard for Telephone Apparatus Manufacturing, which consists of all such companies having 1,250 or fewer employees. U.S. Census Bureau data for 2012 shows that there were 266 establishments that operated that year. Of this total, 262 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small.

28. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, global positioning system (GPS) equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment. The SBA has established a small business size standard for this industry of 1,250 employees or less. U.S. Census Bureau data for 2012 shows that 841 establishments operated in this industry in that year. Of that number, 828 establishments operated with fewer than 1,000 employees, 7 establishments operated with between 1,000 and 2,499 employees and 6 establishments operated with 2,500 or more employees. Based on this data, the Commission concludes that a majority of manufacturers in this industry are small.

29. The rules adopted in the Report and Order will not result in modified reporting, recordkeeping, or other compliance requirements for small or large entities. In this document, the Commission updates the E-Rate program rules to make clear that Tribal libraries are eligible to apply for and receive E-Rate funding, as well as funding from the Emergency Connectivity Fund program. These changes will produce requirements that are equal to existing requirements, and the Commission does not believe small entities will have to hire attorneys, engineers, consultants, or other professionals in order to comply. Updating the E-Rate program rules to adopt the amended definition of library under the LSTA, for example, will clarify that Tribal libraries are eligible for support by statute. Moreover, this clarity may also alleviate some of the issues that Tribal libraries face when seeking E-Rate support.

30. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

31. In the Report and Order, the Commission has taken steps to minimize the economic impact on small entities with the rule changes that the Commission has adopted. Under the current E-Rate rules, only libraries eligible for assistance from a State library administrative agency under the 1996 version of the LSTA are eligible for E-Rate funding. Absent a rule change, Tribal libraries continue to face uncertainty about eligibility which leads to them being underrepresented among E-Rate applicants. The Commission has therefore updated the rules to add Tribal libraries to the definition of library, which may encourage Tribal libraries to apply for and receive E-Rate support. In addition, Tribal libraries will have less difficulty determining eligibility than they have in the past.

32. The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. In addition, the Commission will send a copy of the Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register .

33. Paperwork Reduction Act. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

34. Congressional Review Act. The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), concurs, that this rule is “non-major” under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of the Report and Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

35. Accordingly, it is ordered that, pursuant to the authority contained in sections 1 through 3, 201-202, 254, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-153, 201-202, 254, and 303(r), the Report and Order is adopted, and §§ 54.500 and 54.501(b)(1) of the Commission's rules, 47 CFR 54.500 and 54.501(b)(1), are amended as set forth and such rule amendments shall be effective March 16, 2022.

36. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

37. It is further ordered that the Commission shall send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons set forth above, part 54 of title 47 of the Code of Federal Regulations is amended as follows: