The Office of Personnel Management (OPM) received a request from the Department of Defense (DOD) to amend the regulatory provisions in part 532 of title 5, Code of Federal Regulations (CFR), which require in-person visits by data collectors to private industrial establishments for Federal Wage System (FWS) full-scale wage surveys. This interim final rule amends sections 5 CFR 532.201, 532.207, 532.235, and 532.247.

Under sections 5343(a)(2) and (3) of title 5, United States Code, OPM designates a lead agency for each wage area to conduct wage surveys, analyze wage survey data, and develop and establish appropriate wage schedules and rates for prevailing rate employees. DOD is the designated lead agency for all FWS wage areas.

Wage surveys are conducted every year. A full-scale wage survey is conducted one year, with data collectors required to make in-person visits to local private sector employers to collect wage data. The next year a wage change survey is conducted, with data collectors contacting participants from the prior full-scale wage survey to collect wage data on previously collected jobs.

The overall objective of FWS wage surveys is to obtain the most accurate information possible to measure prevailing wage levels in each wage area and establish wage schedules in accordance with prevailing rate systems law. The preferred method for collecting wage data from private sector establishments during full-scale wage surveys is by personal visit to such establishments. Even though the preferred method continues to be personal visits, technological advances now provide new tools for data collection that were not available when the FWS pay system was established. There are now electronic tools, systems, devices, and resources that assist in gathering information in cost effective and reliable ways. Use of these new tools would provide DOD staff with opportunities to innovate and improve data collection methods.

Labor participation at all levels is a requirement within the FWS, including for the collection and the analysis of the survey data. In all wage areas, local labor-management teams participate in the collection of data from private sector establishments. This will not change. As the lead agency for all wage areas, DOD will continue to work together with labor organizations during the data collection process even when in-person visits cannot be conducted. Labor participation will be facilitated through alternative data collection processes to include telephone, mail, and electronic means.

The Federal Prevailing Rate Advisory Committee (FPRAC), the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, recommended this change by majority vote.

OPM is issuing this rulemaking as an interim final rule and has determined that, under the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), it would be impracticable and contrary to the public interest to delay a final regulation until a public notice and comment process has been completed. OPM also is waiving general notice of proposed rulemaking under the Civil Service Reform Act's parallel rulemaking provision, 5 U.S.C. 1103(b)(3), because the interim final rule is temporary in nature and necessary to be implemented expeditiously as a result of an emergency.

The United States is experiencing a national emergency caused by the spread of the novel coronavirus SARS-CoV-2 and the respiratory disease it causes (COVID-19). OPM has established in regulation a timetable for when a local wage survey must begin in each FWS wage area. Due to this national emergency, DOD staff responsible for local wage survey activities have not been able to travel and collect local wage survey data. In addition, many private sector establishments where DOD wage survey staff normally collect wage data are not operating with human resources staff on site to meet in person. The current pandemic was not envisioned when the wage survey timetable was originally established and OPM does not have the ability under the law or regulation to waive the annual wage survey requirements.

This regulation will provide new tools for data collection that will assist DOD to gather information in cost effective and reliable ways even during a national or local emergency. The conclusion of a public notice and comment period before the rule is finalized would be impracticable because it would impede DOD from obtaining timely and accurate information to measure prevailing wage levels and establish wage schedules in accordance with prevailing rate systems law in those wage areas where a full-scale wage survey is required.

President Trump declared a national emergency in response to the COVID-19 public health crisis on March 13, 2020. In efforts to limit spread of the disease and to protect employees' safety, DOD immediately implemented a travel ban, which made it impossible for data collectors to obtain survey data by personal visits to private sector establishments. The management members of FPRAC introduced a proposal at the Committee's July 16, 2020, meeting to amend the regulations in 5 CFR part 532 to allow for the collection of data by alternate means. A final recommendation was adopted at FPRAC's September 17, 2020, meeting. Because of the need to issue timely wage schedules for FWS employees in accordance with current law and the regulatory timetable for conducting local wage surveys, there is insufficient time for OPM to complete a notice and comment rulemaking without negatively impacting the accuracy and timeliness of local prevailing wage determinations. The conclusion of a public notice and comment period before the rule is finalized would also be contrary to the public interest because it would result in wage schedules being based only on the minimum pay increase applicable under separate appropriations law and not on current local wage survey data.

For these reasons, OPM has determined that the public notice and participation that the law ordinarily requires would, in this case, be impracticable and contrary to the public interest and that good cause exists to waive the general notice of proposed rulemaking pursuant to 5 U.S.C. 553(b)(B) and delay its solicitation of comments from the public until after it issues an interim final rule. The interim final rule is temporary in nature, and expeditious timing is required because of the circumstances facing DOD during the COVID-19 emergency. OPM will promulgate a final rule as soon as practical after receiving public comments on the interim final rule.

OPM has examined the impact of this rule as required by Executive Order 12866 and Executive Order 13563, which 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). A regulatory impact analysis must be prepared for major rules with economically significant effects of $100 million or more in any 1 year. This rule has not been designated as a “significant regulatory action,” under Executive Order 12866.

OPM certifies that this rule will not have a significant economic impact on a substantial number of small entities.

We have examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule will not have any negative impact on the rights, roles and responsibilities of State, local, or tribal governments.

This regulation meets the applicable standard set forth in Executive Order 12988.

This rule will not 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 year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

The Congressional Review Act (5 U.S.C. 801 et seq. ) requires rules (as defined in 5 U.S.C. 804) to be submitted to Congress before taking effect. OPM will submit to Congress and the Comptroller General of the United States a report regarding the issuance of this action before its effective date, as required by 5 U.S.C. 801. This action is not major as defined by the Congressional Review Act (CRA) (5 U.S.C. 804).

While this rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act, the following collections will be affected: Establishment Information Form (DD 1918), Wage Data Collection Form (DD 1919), and Wage Data Collection Continuation Form (DD 1919C)—OMB Control Number: 3206-0036.

The wage survey methodology required of DOD when using these forms is not being updated. The survey and burden times associated with this survey remain the same and, therefore, the forms do not need to be resubmitted for OMB review. We do not expect the respondent burden to increase or decrease through this change in procedure. In the long term, DOD may be able to save on some travel costs but given that the decision to use alternative data collection methods than in-person visits will reside with the local wage survey committee any cost savings are currently unknowable.

Accordingly, OPM is amending 5 CFR part 532 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify the route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2020-0003 in the Federal Register (85 FR 3290; January 21, 2020), amending VOR Federal airways V-12, V-74, and V-516 in the vicinity of Anthony, KS, due to the planned decommissioning of the VOR portion of the Anthony, KS, VORTAC. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11E dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document will be subsequently published in the Order.

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

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

The FAA is amending 14 CFR part 71 by modifying VOR Federal airways V-12, V-74, and V-516. The planned decommissioning of the VOR portion of the Anthony, KS, VORTAC NAVAID has made this action necessary. The VOR Federal airway changes are outlined below.

V-12: V-12 extends between the Gaviota, CA, VORTAC and the Shelbyville, IN, VOR/Distance Measuring Equipment (VOR/DME); and between the Allegheny, PA, VOR/DME and the Pottstown, PA, VORTAC. The airway segment between the Mitbee, OK, VORTAC and the Wichita, KS, VORTAC is removed. Additionally, the Amarillo, TX, VOR listed in the airway description is corrected to reflect the Panhandle, TX, VORTAC. The unaffected portions of the existing airway remain as charted.

V-74: V-74 extends between the Garden City, KS, VORTAC and the Magnolia, MS, VORTAC. The airway segment between the Dodge City, KS, VORTAC and the Pioneer, OK, VORTAC is removed. The unaffected portions of the existing airway remain as charted.

V-516: V-516 extends between the Liberal, KS, VORTAC and the Oswego, KS, VOR/DME. The airway segment between the Liberal, KS, VORTAC and the Pioneer, OK, VORTAC is removed. The unaffected portion of the existing airway remains as charted. All radials listed in the VOR Federal airway descriptions below are unchanged and stated in True degrees.

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

The FAA has determined that this action of modifying VOR Federal airways V-12, V-74, and V-516, due to the planned decommissioning of the VOR portion of the Anthony, KS, VORTAC NAVAID, qualifies for categorical exclusion under the National Environmental Policy Act and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the Class D and Class E airspace at Palmdale USAF Plant 42 Airport Palmdale, CA, to ensure the safety and management of Instrument Flight Rules (IFR) operations at the airport.

The FAA published a notice of proposed rulemaking in the Federal Register (85 FR 72610, November 13, 2020) for Docket No. FAA-2020-0942 to modify Class D and Class E airspace, Palmdale USAF Plant 42 Airport Palmdale, CA. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D, E4, and E5 airspace designations are published in paragraphs 5000, 6004, and 6005, respectively, of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designation listed in this document will be published subsequently in the Order.

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

This amendment to 14 CFR part 71 modifies the Class E airspace, designated as an extension to a Class D or Class E surface area, at Palmdale USAF Plant 42 Airport, Palmdale, CA. This airspace area is designed to contain IFR aircraft descending below 1,000 feet above the surface and is described as follows: That airspace extending upward from the surface within 1 mile each side of the 270° bearing from the airport, extending from the 4.3-mile radius to 7.5 miles west of Palmdale USAF Plant 42 Airport. This Class E airspace area is effective during the specific dates and times established, in advance, by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

This action also modifies the Class E airspace, extending upward from 700 feet above the surface. This airspace area is designed to contain IFR arrivals descending below 1,500 feet above the surface and IFR departures until reaching 1,200 feet above the surface. This airspace area is described as follows: That airspace extending upward from 700 feet above the surface within a 6.8-mile radius of the airport, and within 6.1 miles each side of the 080° bearing from the airport, extending from the 6.8-mile radius to 12.9 miles east of the airport, and within 4 miles north and 8 miles south of the 086° bearing from the airport, extending from the airport to 14.3 miles east of the airport, and within 2 miles each side of the 274° bearing from the airport, extending from the 6.8-mile radius to 13.4 miles west of Palmdale USAF Plant 42 Airport.

Additionally, this action removes the Class E airspace, extending upward from 1,200 feet above the surface. This airspace area is wholly contained with the Los Angeles en route airspace area and duplication is not necessary.

Further, this action removes the Palmdale VORTAC from the Class E4 and the Class E5 legal descriptions. Removal of the navigational aid allows the airspace to be defined from a single reference point, simplifying how the airspace is described.

Also, this action removes the Lancaster, Gen. William J. Fox Airfield, CA, from the Class E5 legal description. Removal of the airport allows the airspace to be defined from a single reference point, simplifying how the airspace is described.

Lastly, this action implements several administrative corrections to the airspaces' legal descriptions. The airport name in the second line of the Class D, Class E4, and Class E5 text header is updated to “Palmdale USAF Plant 42 Airport, CA.” The last sentence in the Class D and Class E4 legal descriptions is updated to replace the term “Airport/Facilities Directory.” with the term “Chart Supplement.”

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

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

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

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

The Controlled Substances Act (CSA) provides the Attorney General (as delegated to the Administrator of Drug Enforcement Administrator (DEA) pursuant to 28 CFR 0.100) with the authority to temporarily place a substance in schedule I of the CSA for two years without regard to the requirements of 21 U.S.C. 811(b), if he finds that such action is necessary to avoid an imminent hazard to the public safety. 21 U.S.C. 811(h)(1). In addition, if proceedings to control a substance are initiated under 21 U.S.C. 811(a)(1) while the substance is temporarily controlled  1 under section 811(h), the Administrator may extend the temporary scheduling for up to one year. 21 U.S.C. 811(h)(2).

Where the necessary findings are made, a substance may be temporarily scheduled if it is not listed in any other schedule under 21 U.S.C. 812, or if there is no exemption or approval in effect for the substance under section 505 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 355. 21 U.S.C. 811(h)(1); 21 CFR part 1308.

The CSA requires the Administrator to notify the Secretary of the Department of Health and Human Services (HHS) of his intention to temporarily place a substance in schedule I. 2 21 U.S.C. 811(h)(4). The Acting Administrator transmitted such notice regarding brorphine to the Assistant Secretary for Health of HHS (Assistant Secretary) by letter dated September 22, 2020. The Assistant Secretary responded to this notice by letter dated October 27, 2020, and advised that based on a review by the Food and Drug Administration (FDA), there are currently no investigational new drug applications (INDs) or approved new drug applications (NDAs) for brorphine. The Assistant Secretary also stated that HHS had no objection to the temporary placement of brorphine in schedule I of the CSA.

DEA has taken into consideration the Assistant Secretary's comments as required by subsection 811(h)(4). Brorphine is not currently listed in any schedule under the CSA, and no exemptions or approvals are in effect for brorphine under 21 U.S.C. 355. DEA has found that the control of brorphine in schedule I on a temporary basis is necessary to avoid an imminent hazard to the public safety.

As required by 21 U.S.C. 811(h)(1)(A), DEA published a notice of intent to temporarily schedule brorphine on December 3, 2020. 85 FR 78047. That notice of intent discussed findings from DEA's three-factor analysis dated August 2020, which DEA made available on www.regulations.gov.

To find that placing a substance temporarily in schedule I of the CSA is necessary to avoid an imminent hazard to the public safety, the Administrator is required to consider three of the eight factors set forth in 21 U.S.C. 811(c): The substance's history and current pattern of abuse; the scope, duration and significance of abuse; and what, if any, risk there is to the public health. 21 U.S.C. 811(h)(3). Consideration of these factors includes actual abuse diversion from legitimate channels; and clandestine importation, manufacture, or distribution. 21 U.S.C. 811(h)(3).

A substance meeting the statutory requirements for temporary scheduling may only be placed in schedule I. 21 U.S.C. 811(h)(1). Substances in schedule I have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. 21 U.S.C. 812(b)(1).

Available data and information for brorphine summarized below indicate that it has high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. DEA's August 2020 three-factor analysis and the Assistant Secretary's October 27, 2020, letter are available in their entirety under the tab “Supporting Documents” of the public docket of this action at www.regulations.gov.

The availability of synthetic opioids on the illicit drug market continues to pose an imminent hazard to the public safety. Adverse health effects associated with the abuse of synthetic opioids and the increased popularity of these substances have posed serious health concerns in recent years. The presence of new synthetic opioids with no approved medical use exacerbates the unprecedented opioid epidemic in the United States continues to experience. The trafficking and abuse of new synthetic opioids are deadly new trends.

The identification of brorphine on the illicit drug market has been reported in the United States, Canada, Belgium, and Sweden. Data obtained from preclinical pharmacology studies show that brorphine has a pharmacological profile similar to that of other potent opioids such as morphine and fentanyl, schedule II controlled substances. Because of the pharmacological similarities between brorphine and other potent opioids, the use of brorphine presents a high risk of abuse and may negatively affect users and their communities. The positive identification of this substance in law enforcement seizures and post-mortem toxicology reports is a serious concern to the public safety. The abuse of brorphine has been associated with at least seven fatalities between June and July 2020 in the United States. Thus, brorphine poses an imminent hazard to public safety.

Available data and information for brorphine, as summarized below, indicates that this substance has a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. DEA's three-factor analysis is available in its entirety under “Supporting and Related Material” of the public docket for this action at www.regulations.gov under Docket Number DEA-716.

Brorphine is part of a structural class of compounds known as substituted piperidine benzimidazolones. The general synthesis of brorphine was first reported in the literature in 2018. Brorphine is not an approved pharmaceutical product and is not approved for medical use anywhere in the world. The Assistant Secretary, by a letter to DEA dated October 27, 2020, stated that there are no FDA-approved NDAs or INDs for brorphine in the United States. Hence, DEA notes there is no legitimate channel for brorphine as a marketed drug product. The appearance of brorphine on the illicit drug market is similar to other designer drugs trafficked for their psychoactive effects.

Since 2014, numerous synthetic opioids structurally related to fentanyl and several synthetic opioids from other structural classes have begun to emerge on the illicit drug market as evidenced by the identification of these drugs in forensic drug exhibits and toxicology samples. Beginning in June 2019, brorphine emerged in the United States illicit, synthetic drug market as evidenced by brorphine's identification in drug seizures. Authorities Between July and September 2019, brorphine was first reported in drug casework in Canada and was first reported in police seizures in Sweden in March 2020. 3

Brorphine has been encountered by United States law enforcement in powder form. In the United States, brorphine has been identified as a single substance and in combination with other substances. Between June 2019 and August 2020, there are twenty reports of brorphine in the National Forensic Laboratory Information System (NFLIS) from three different states (see Factor 5). 4 In several NFLIS encounters, brorphine was found in combination with heroin (a schedule I substance) and fentanyl (a schedule II substance). In reports from the Northeastern Illinois Regional Crime Laboratory, suspected heroin/fentanyl powders were analyzed and found to be brorphine in combination with flualprazolam, a non-scheduled benzodiazepine, and diphenhydramine, an over-the-counter antihistamine. 5

Post-mortem toxicology samples collected and submitted to National Medical Services (NMS) Laboratory  6 in June and July 2020 verified the identification of brorphine. Brorphine was first reported by the Center for Forensic Science Research and Education (CFSRE)—Novel Psychoactive Substance (NPS) Discovery Program (under the novel psychoactive substances discovery program, in collaboration with NMS Labs) in July 2020. In seven post-mortem toxicology reports in June and July 2020, brorphine was found in combination with fentanyl, flualprazolam, and heroin. Evidence suggests that individuals are using brorphine as a replacement to heroin or other opioids, either knowingly or unknowingly.

Brorphine has been described as a potent synthetic opioid, and evidence suggests it is being abused for its opioidergic effects (see Factor 6). According to a recent publication by CFSRE—NPS Discovery Program, brorphine has been positively identified in seven death investigation cases spanning between June and July 2020. These cases occurred in three states—Illinois (3), Minnesota (3), and Arizona (1). Most (n=6) of the decedents were male. The decedents' ages ranged between 40's and 60's with an average age of 52 years. Other substances identified in postmortem blood specimens obtained from these decedents include flualprazolam, a nonscheduled benzodiazepine (n=5), fentanyl, a schedule II substance (n=7), and heroin, a schedule I substance (n=4). The appearance of benzodiazepines and other opioids is common with polysubstance abuse.

NFLIS registered 20 reports of brorphine from Ohio (4), Pennsylvania (1), and Wisconsin (15) in 2019 and 2020. NFLIS was queried on August 18, 2020, for brorphine. Due to the rapid appearance of the drug, brorphine is most likely under reported as forensic laboratories secure reference standards for the confirmative identification and reporting of this substance.

The population likely to abuse brorphine appears to be the same as those abusing prescription opioid analgesics, heroin, tramadol, fentanyl, and other synthetic opioid substances. This is evidenced by the types of other drugs co-identified in samples obtained from brorphine seizures and post-mortem toxicology reports. Because abusers of brorphine are likely to obtain it through unregulated sources, the identity, purity, and quantity of brorphine are uncertain and inconsistent, thus posing significant adverse health risks to the end user. The misuse and abuse of opioids have been demonstrated and are well-characterized. According to the most recent data from the National Survey on Drug Use and Health (NSDUH), 7 as of 2019, an estimated 10.1 million people aged 12 years or older misused opioids in the past year, including 9.7 million prescription pain reliever misusers and 745,000 heroin users. In 2019, an estimated 1.6 million people had an opioid use disorder, which included 1.4 million people with a prescription pain reliever use disorder and 438,000 people with heroin use disorder. In 2018, an estimated 10.3 million people aged 12 years or older misused opioids in the past year, including 9.9 million prescription pain reliever misusers and 808,000 heroin users. In 2018, an estimated 2 million people had an opioid use disorder, which included 1.7 million people with a prescription pain reliever use disorder and 500,000 people with heroin use disorder. This population abusing opioids is likely to be at risk of abusing brorphine. Individuals who initiate use ( i.e., use a drug for the first time) of brorphine are likely to be at risk of developing substance use disorder, overdose, and death similar to that of other opioid analgesics ( e.g., fentanyl, morphine, etc.). Law enforcement reports demonstrate that brorphine is being illicitly distributed and abused.

The increase in opioid overdose deaths in the United States has been exacerbated recently by the availability of potent synthetic opioids on the illicit drug market. Data obtained from pre-clinical studies demonstrate that brorphine exhibits a pharmacological profile similar to that of other mu-opioid receptor agonists. Data from in vitro studies showed that brorphine binds to and activates the mu-opioid receptors. In the [ 35 S]GTPγS cell-based receptor assay, brorphine, similar to fentanyl, acted as a mu-opioid receptor agonist. Brorphine's activation of the mu-opioid receptor was also shown to involve recruitment of beta-arrestin-2, a regulatory protein whose interaction with the mu-opioid receptor has been implicated in the adverse effects of mu-opioid receptor activation. Brorphine binds to and activates the mu-opioid receptor and has efficacy on scale with fentanyl in in vitro studies. It is well established that substances that act as mu-opioid receptor agonists have a high potential for addiction and can induce dose-dependent respiratory depression.

As with any mu-opioid receptor agonist, the potential health and safety risks for users of brorphine are high. The public health risks associated to the abuse of heroin and other μ-opioid receptor agonists are well established and have resulted in large numbers of drug treatment admissions, emergency department visits, and fatal overdoses. According to the Centers for Disease Control and Prevention (CDC), opioids, mainly synthetic opioids other than methadone, are predominantly responsible for drug overdose deaths in recent years. A CDC report shows that, from 2013 to 2018, opioid-related overdose deaths in the United States increased from 25,052 to 46,802. Of the drug overdose deaths for 2018, opioids were involved in about 69.5 percent of all drug-involved overdose deaths.

In the United States, the abuse of opioid analgesics has resulted in large numbers of treatment admissions, emergency department visits, and fatal overdoses. The introduction of potent synthetic opioids such as brorphine into the illicit market may serve as a portal to problematic opioid use for those seeking these powerful opioids.

Brorphine has been co-identified with other substances in seven post-mortem toxicology cases in June and July 2020. These substances include other opioids such as fentanyl and heroin, and other substance classes such as benzodiazepines. These deaths occurred in three states: Illinois, Arizona, and Minnesota. Information gathered from case history findings shows that brorphine use is similar to that of classic opioid agonists. As documented by toxicology reports, poly-substance abuse remains common in fatalities associated with the abuse of brorphine.

In accordance with 21 U.S.C. 811(h)(3), based on the available data and information summarized above, the uncontrolled manufacture, distribution, reverse distribution, importation, exportation, conduct of research and chemical analysis, possession, and abuse of brorphine pose an imminent hazard to the public safety. DEA is not aware of any currently accepted medical uses for brorphine in the United States. 8 A substance meeting the statutory requirements for temporary scheduling, found in 21 U.S.C. 811(h)(1), may only be placed in schedule I. Substances in schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. Available data and information for brorphine indicate that this substance has a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. As required by 21 U.S.C. 811(h)(4), the Acting Administrator, through a letter dated September 22, 2020, notified the Assistant Secretary of DEA's intention to temporarily place brorphine in schedule I. DEA subsequently published a notice of intent on December 3, 2020. 85 FR 78047.

In accordance with 21 U.S.C. 811(h)(1) and (3), the Acting Administrator considered available data and information, herein set forth the grounds for his determination that it is necessary to temporarily schedule brorphine in schedule I of the CSA and finds that placement of this substance in schedule I of the CSA is necessary in order to avoid an imminent hazard to the public safety.

This temporary order scheduling this substance will be effective on the date the order is published in the Federal Register and will be in effect for a period of two years, with a possible extension of one additional year, pending completion of the regular (permanent) scheduling process. 21 U.S.C. 811(h)(1) and (2).

The CSA sets forth specific criteria for scheduling a drug or other substance. Regular scheduling actions in accordance with 21 U.S.C. 811(a) are subject to formal rulemaking procedures done “on the record after opportunity for a hearing” conducted pursuant to the provisions of 5 U.S.C. 556 and 557. 21 U.S.C. 811. The regular scheduling process of formal rulemaking affords interested parties with appropriate process and the government with any additional relevant information needed to make a determination. Final decisions that conclude the regular scheduling process of formal rulemaking are subject to judicial review. 21 U.S.C. 877. Temporary scheduling orders are not subject to judicial review. 21 U.S.C. 811(h)(6).

Upon the effective date of this temporary order, brorphine will be subject to the regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, reverse distribution, importation, exportation, engagement in research, and conduct of instructional activities or chemical analysis with, and possession of schedule I controlled substances, including the following:

1. Registration. Any person who handles (manufactures, distributes, reverse distributes, imports, exports, engages in research, or conducts instructional activities or chemical analysis with, or possesses), or who desires to handle, brorphine must be registered with DEA to conduct such activities pursuant to 21 U.S.C. 822, 823, 957, and 958, and in accordance with 21 CFR parts 1301 and 1312, as of March 1, 2021. Any person who currently handles brorphine, and is not registered with DEA, must submit an application for registration and may not continue to handle brorphine as of March 1, 2021, unless DEA has approved that application for registration pursuant to 21 U.S.C. 822, 823, 957, and 958, and in accordance with 21 CFR parts 1301 and 1312. Retail sales of schedule I controlled substances to the general public are not allowed under the CSA. Possession of any quantity of this substance in a manner not authorized by the CSA on or after March 1, 2021 is unlawful and those in possession of any quantity of these substances may be subject to prosecution pursuant to the CSA.

2. Disposal of stocks. Any person who does not desire or is not able to obtain a schedule I registration to handle brorphine must surrender all currently held quantities of brorphine.

3. Security. Brorphine is subject to schedule I security requirements and must be handled and stored pursuant to 21 U.S.C. 821, 823, 871(b) and in accordance with 21 CFR 1301.71-1301.93, as of March 1, 2021. Non-practitioners handling brorphine must also comply with the employee screening requirements of 21 CFR 1301.90-1301.93.

4. Labeling and Packaging. All labels, labeling, and packaging for commercial containers of brorphine must be in compliance with 21 U.S.C. 825, 958(e) and be in accordance with 21 CFR part 1302. Current DEA registrants will have 30 calendar days from March 1, 2021 to comply with all labeling and packaging requirements.

5. Inventory. Every DEA registrant who possesses any quantity of brorphine on the effective date of this order must take an inventory of all stocks of these substances on hand, pursuant to 21 U.S.C. 827 and 958 and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11. Current DEA registrants will have 30 calendar days from the effective date of this order to be in compliance with all inventory requirements. After the initial inventory, every DEA registrant must take an inventory of all controlled substances (including brorphine) on hand on a biennial basis, pursuant to 21 U.S.C. 827 and 958 and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11.

6. Records. All DEA registrants must maintain records with respect to brorphine, pursuant to 21 U.S.C. 827 and 958 and in accordance with 21 CFR parts 1304, 1312, and 1317, and section 1307.11. Current DEA registrants authorized to handle brorphine shall have 30 calendar days from the effective date of this order to be in compliance with all recordkeeping requirements.

7. Reports. All DEA registrants who manufacture or distribute brorphine must submit reports pursuant to 21 U.S.C. 827 and in accordance with 21 CFR parts 1304 and 1312 as of March 1, 2021.

8. Order Forms. All DEA registrants who distribute brorphine must comply with order form requirements pursuant to 21 U.S.C. 828 and in accordance with 21 CFR part 1305 as of March 1, 2021.

9. Importation and Exportation. All importation and exportation of brorphine must be in compliance with 21 U.S.C. 952, 953, 957, and 958, and in accordance with 21 CFR part 1312 as of March 1, 2021.

10. Quota. Only DEA registered manufacturers may manufacture brorphine in accordance with a quota assigned pursuant to 21 U.S.C. 826 and in accordance with 21 CFR part 1303 as of March 1, 2021.

11. Liability. Any activity involving brorphine not authorized by, or in violation of the CSA, occurring as of March 1, 2021, is unlawful and may subject the person to administrative, civil, and/or criminal sanctions.

The CSA provides for a temporary scheduling action where such action is necessary to avoid an imminent hazard to the public safety. 21 U.S.C. 811(h)(1). As provided in this subsection, the Administrator (as delegated by the Attorney General) by order may schedule a substance in schedule I on a temporary basis. Such an order may not be issued before the expiration of 30 days from: (1) The publication of a notice in the Federal Register of the intention to issue such order and the grounds upon which such order is to be issued, and (2) the date that comment requirements of section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553, do not apply to this temporary scheduling order. The APA expressly differentiates between an order and a rule, as it defines an “order” to mean a “final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making. ” 5 U.S.C. 551(6) (emphasis added). The specific language chosen by Congress indicates an intention for DEA to proceed through the issuance of an order instead of proceeding by rulemaking. Given that Congress specifically requires the Administrator to follow rulemaking procedures for other kinds of scheduling actions, see 21 U.S.C. 811(a), note that in 21 U.S.C. 811(h)(1), Congress authorized the issuance of temporary scheduling actions by order rather than by rule.

Alternatively, even if this action was subject to section 553 of the APA, the Acting Administrator finds that there is good cause to forgo the notice-and-comment requirements of section 553, as any further delays in the process for issuance of temporary scheduling orders would be impracticable and contrary to the public interest in view of the manifest urgency to avoid an imminent hazard to the public safety.

Although DEA believes this temporary scheduling order is not subject to the notice-and-comment requirements of section 553 of the APA, DEA notes that in accordance with 21 U.S.C. 811(h)(4), the Acting Administrator took into consideration comments submitted by the Assistant Secretary in response to the notice that DEA transmitted to the Assistant Secretary pursuant to such subsection.

Further, DEA believes that this temporary scheduling action is not a “rule” as defined by 5 U.S.C. 601(2), and accordingly, is not subject to the requirements of the Regulatory Flexibility Act. The requirements for the preparation of an initial regulatory flexibility analysis in 5 U.S.C. 603(a) are not applicable here, as DEA is not required by section 553 of the APA or any other law to publish a general notice of proposed rulemaking.

In accordance with the principles of Executive Orders (E.O.) 12866 and 13563, this action is not a significant regulatory action. E.O. 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects; distributive impacts; and equity). E.O. 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review as established in E.O. 12866. E.O. 12866 classifies a “significant regulatory action,” requiring review by the Office of Management and Budget, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O. Because this is not a rulemaking action, this is not a significant regulatory action as defined in Section 3(f) of E.O. 12866.

This action 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. Therefore, in accordance with E.O. 13132 (Federalism), it is determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

For the reasons set out above, DEA amends 21 CFR part 1308 as follows:

I. Background

In 1979, EPA promulgated a NAAQS for ozone, setting the standard at 0.12 parts per million (ppm) averaged over a 1-hour time frame. See 44 FR 8202 (February 8, 1979). In 1997, EPA promulgated a revised NAAQS for ozone, setting the standard at 0.08 ppm averaged over an 8-hour time frame. See 62 FR 38856 (July 18, 1997). 1 In 2008, EPA revised the level of the 8-hour ozone standard to 0.075 ppm. See 73 FR 16436 (March 27, 2008). 2 The promulgation of a new or revised NAAQS triggers a CAA requirement for EPA to designate as nonattainment any area that violates the NAAQS or contributes to a violation in a nearby area. On November 6, 1991, EPA published designations and classifications for the 1979 1-hour ozone NAAQS. 3 See 56 FR 56694. EPA initially published designations and classifications for the revised 1997 8-hour and revised 2008 8-hour ozone standards on April 30, 2004 (69 FR 23858) and May 21, 2012 (77 FR 30088), respectively. The geographic areas designated as nonattainment in North Carolina for the 1997 8-hour ozone standard included the Charlotte-Gastonia-Rock Hill, NC-SC Area (the North Carolina portion is hereinafter the “1997 Charlotte Area”). 4 The geographic areas designated as nonattainment in North Carolina for the 2008 ozone standard are part of an area known as the Charlotte-Rock Hill, NC-SC Area (the North Carolina portion is hereinafter the “2008 Charlotte Area”). 5 EPA redesignated North Carolina's 1979 ozone nonattainment areas to attainment in a series of actions from 1993 to 1995, 6 redesignated the 1997 Charlotte Area to attainment on December 2, 2013 (78 FR 72036), and redesignated the 2008 Charlotte Area to attainment on July 28, 2015 (80 FR 44873).

North Carolina was required to develop nonattainment SIP revisions addressing the CAA requirements for its ozone nonattainment areas. Among other things, North Carolina was required to address the annual emissions reporting requirement in CAA section 182(a)(3)(B), which requires each state with an ozone nonattainment area to submit a SIP revision requiring stationary sources that emit 25 tons per year (tpy) or more of nitrogen oxides (NO X ) or volatile organic compounds (VOC) within the nonattainment area to provide certified annual emissions statements to the state showing actual annual NO X and VOC emissions from the sources.

On August 1, 1997 (62 FR 41277), EPA approved the State's annual emissions reporting requirement at 15A NCAC Subchapter 02Q Section .0207, 7 Annual Emissions Reporting, into the North Carolina SIP for the geographic areas designated as nonattainment for the 1979 ozone NAAQS. 8 On January 31, 2008, North Carolina submitted a SIP revision adding the 1997 Charlotte Area to its annual emissions reporting requirement as a result of EPA's nonattainment designations for the 1997 8-hour ozone standard. 9 On April 24, 2012 (77 FR 24382), EPA approved that SIP revision and added the 1997 Charlotte Area to the annual emissions reporting requirement in the North Carolina SIP to meet the requirements of CAA section 182(a)(3)(B).

Paragraph (c) of Section .0207 lists the geographic areas in North Carolina where owners or operators of certain non-title V facilities with actual emissions of 25 tpy or more of NO X or VOC are required to report by June 30th of each year the actual emissions of NO X and VOC during the previous year. Paragraph (d) identifies the date that the annual reporting requirement in paragraph (c) shall begin.

EPA is approving North Carolina's July 10, 2019 SIP revision which amends the emissions reporting requirement at 15A NCAC Subchapter 02Q Section .0207, Annual Emissions Reporting. Specifically, the revision removes the annual emissions reporting requirement for certain non-Title V facilities in geographic areas that have been redesignated to attainment for the 1979 1-hour ozone NAAQS and in the redesignated 1997 Charlotte Area, while retaining the requirement for the redesignated 2008 Charlotte Area. Additionally, the revision updates the calendar year that the emissions reporting requirement begins from 2007 to 2017 in paragraph (d) and makes several minor editorial changes to the rule.

In a notice of proposed rulemaking (NPRM) published on October 27, 2020 (85 FR 68026), EPA proposed to approve North Carolina's SIP revision. The October 27, 2020, NPRM provides additional detail regarding the SIP revision and rationale for EPA's action. Comments on the October 27, 2020, NPRM were due on or before November 27, 2020.

EPA received one comment on the October 27, 2020, NPRM. A summary of the comment and EPA's response is provided below. The full comment is in the docket for this rulemaking.

Comment: The Commenter recommends that EPA freeze its actions until the Biden administration has the authority to promulgate rules and regulations. The Commenter then states that “Leaving clean air and water to the states can be a mistake unless it is California which leads in regulatory emissions.”

Response: The majority of the comment is beyond the scope of EPA's action on North Carolina's July 10, 2019 SIP submittal. With respect to this action, Section 110(k) of the CAA requires EPA to approve SIP submittals that meet all applicable CAA requirements and to do so within specific timeframes. EPA is approving the State's submittal because the Agency has concluded that the submittal meets CAA requirements and the Commenter did not provide any information indicating otherwise. Furthermore, the statutory deadline to act on this submittal is January 10, 2021, prior to the change in presidential administration. EPA's statutory obligation to act on SIP submittals is not tolled due to a pending change in administration.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of 15A NCAC Subchapter 02Q Section .0207, Annual Emissions Reporting, state effective April 1, 2018, which removes the annual emissions reporting requirement for certain non-Title V facilities; updates the calendar year when the annual emissions reporting requirement begins; and makes several minor editorial changes. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 10

EPA is approving North Carolina's July 10, 2019, SIP submission, which revises 15A NCAC Subchapter 02Q Section .0207, Annual Emissions Reporting, state effective April 1, 2018, which removes annual emissions reporting requirement for certain non-Title V facilities; updates the calendar year when the annual emissions reporting requirement begins; and makes several minor editorial changes. EPA is approving this revision pursuant to the CAA.

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 30, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

This document of the Environmental Protection Agency was signed on December 22, 2020, by Mary Walker, Regional Administrator, pursuant to the Statutory Deadline of the Clean Air Act. That document with the original signature and date is maintained by EPA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned EPA Official re-signs the document for publication, as an official document of the Environmental Protection Agency. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

I. Background

Sections 108 and 109 of the CAA require EPA to set NAAQS for criteria air pollutants (ozone (O 3 ), particulate matter (PM), carbon monoxide, lead, sulfur dioxide (SO 2 ), and nitrogen dioxide) and to undertake periodic review of these standards. After EPA sets a new NAAQS or revises an existing standard, the CAA requires EPA to determine if areas of the country meet the new standards and to designate areas as either nonattainment, attainment, or unclassifiable. 1 Such designations inform the state's planning and implementation of requirements to achieve and maintain the NAAQS for each area within that state.

Section 107(d) of the CAA governs the process for these initial area designations. Under this process, states and tribes submit recommendations to EPA as to whether or not an area is attaining the NAAQS for criteria air pollutants. EPA then considers these recommendations as part of its obligation to promulgate the area designations for the new or revised NAAQS. EPA codifies its designations for areas within each state in 40 CFR part 81. 2 Under section 107(d) of the CAA, a designation for an area remains in effect until redesignated by EPA.

In a notice of proposed rulemaking (NPRM) published on October 19, 2020 (85 FR 66295), EPA proposed to approve changes to Kentucky rule 401 Kentucky Administrative Regulation (KAR) 51:010, Attainment status designations, which update the description and attainment or nonattainment status of geographic areas within the Commonwealth with regard to a number of the NAAQS. The Commonwealth of Kentucky last amended Regulation 401 KAR 51:010 in 2016. 3 Since that time, EPA promulgated the 2015 8-hour ozone NAAQS and redesignated several areas within the Commonwealth. Kentucky amended 401 KAR 51:010 in 2019 by updating the attainment status designations in Sections 7 through 9 for O 3 , PM less than 2.5 microns in diameter (PM 2.5 ), and SO 2 to conform with EPA's attainment status designations in 40 CFR 81.318. Regulation 401 KAR 51:010 has also been amended by making one minor textual modification to the NECESSITY, FUNCTION, AND CONFORMITY section. The details of Kentucky's submission and the rationale for EPA's action are explained in the proposed rulemaking. Comments on the October 19, 2020, NPRM were due on or before November 18, 2020. EPA did not receive any comments on the October 19, 2020, NPRM. EPA is now taking final action to approve the above-referenced changes.

In this notice, EPA is finalizing EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Kentucky regulation 401 KAR 51:010, Attainment status designations, state effective November 19, 2019, which was revised to be consistent with the federal attainment status designations for the areas within the Commonwealth. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation. 4

EPA is taking final action to approve portions of the Commonwealth of Kentucky's SIP revision submitted on December 9, 2019, because the changes are consistent with the CAA and EPA regulations. The submission amends and updates Kentucky regulation 401 KAR 51:010, Attainment status designations, to conform with EPA's attainment status designations in 40 CFR 81.318. EPA is proposing to approve these changes because they are consistent with the CAA and EPA regulations.

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

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 30, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

For the reasons stated in the preamble, EPA amends 40 CFR part 52 as follows:

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

This rule approves IEPA's January 23, 2020, submission to remove the variance (PCB 14-10) from the Illinois SIP, for IPH and Medina Valley, and will reimpose tighter limits on all facilities currently in operation under 35 IAC Section 225.233. The background for this action is discussed in detail in EPA's notice of proposed rulemaking (NPRM), dated September 18, 2020 (85 FR 58320).

In the NPRM, EPA provided a 30-day review and comment period for the proposed rule. The comment period ended on October 19, 2020. We received no adverse comments on the proposed rule.

EPA did, however, receive one anonymous comment that did not explain or provide a legal basis for why the proposed action should differ, and therefore requires no further response.

EPA is approving IEPA's January 23, 2020, request to revise the Illinois SIP by removing PCB 14-10 from the SIP for IPH and Medina Valley.

In this document, EPA is amending regulatory text that includes incorporation by reference. As described in the amendments to 40 CFR part 52 set forth below, EPA is removing provisions of the EPA-Approved Illinois Source-Specific Requirements from the Illinois SIP, which is incorporated by reference in accordance with the requirements of 1 CFR part 51. EPA has made, and will continue to make the SIP generally available through www.regulations.gov and at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 30, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

On June 22, 2010, EPA published notice of a new 1-hour primary SO 2 NAAQS of 75 parts per billion (ppb), which is met at an ambient air quality monitoring site when the 3-year average of the annual 99th percentile of daily maximum 1-hour concentrations does not exceed 75 ppb, as determined in accordance with appendix T of 40 CFR part 50. See 75 FR 35520, codified at 40 CFR 50.17(a) and (b). On August 5, 2013, EPA designated a first set of 29 areas of the country as nonattainment for the 2010 SO 2 NAAQS, including the Sullivan County Area within the State of Tennessee. See 78 FR 47191, codified at 40 CFR part 81, subpart C. These “Round one” area designations were effective October 4, 2013. Section 191(a) of the CAA directs states to submit SIPs for areas designated as nonattainment for the SO 2 NAAQS to EPA within 18 months of the effective date of the designation, i.e., by no later than April 4, 2015 in this case. Section 192(a) requires that such plans shall provide for NAAQS attainment as expeditiously as practicable, but no later than 5 years from the effective date of designation, which is October 4, 2018 in this case, in accordance with CAA sections 191-192.

Section 172(c) of part D of the CAA requires such SIP submittals to comply with the following: Provide for the implementation of all reasonably available control measures as expeditiously as practicable and attainment of the NAAQS; require reasonable further progress (RFP); include a comprehensive, accurate, current inventory of actual emissions from all sources in the area; identify and quantify the emissions of any pollutants from new or modified major sources in the area and demonstrate the emissions will be consistent with the achievement of RFP and will not interfere with attainment of the applicable NAAQS; require permits for new or modified major sources anywhere in the nonattainment area; include enforceable emission limitations and such other measures as may be necessary or appropriate to provide for attainment the NAAQS; comply with CAA section 110(a)(2); and provide for the implementation of contingency measures to be undertaken if the area fails to make RFP, or to attain the NAAQS by the attainment date. In this action, the only portions of Tennessee's submissions that EPA is approving are the emissions inventory and NNSR requirements of 172(c)(3) and (5), respectively.

On April 23, 2014, EPA issued a guidance document entitled, “Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions.” This guidance provides recommendations for the development of SO 2 nonattainment SIPs to satisfy CAA requirements ( see, e.g., sections 172, 191, and 192). A nonattainment SIP must also meet the requirements of 40 CFR part 51, subparts F and G, and 40 CFR part 51, appendix W (the Guideline on Air Quality Models; “the Guideline ”), and include inventory data, modeling results, and emissions reduction analyses on which the state has based its projected attainment. The base year emissions inventory (section 172(c)(3)) is required to show a “comprehensive, accurate, current inventory” of all relevant pollutants in the nonattainment area. To meet the NNSR requirements of section 172(c)(5), the state's SIP is required to include a program to address new and modified major sources as provided in 40 CFR 51.165.

For a number of areas, including the Sullivan County Area, EPA published a document on March 18, 2016, finding that pertinent states had failed to submit the required SO 2 nonattainment plan by the submittal deadline. See 81 FR 14736. This finding initiated a deadline under CAA section 179(a) for the potential imposition of new source review and highway funding sanctions, and for EPA to promulgate a federal implementation plan (FIP) under section 110(c) of the CAA. In response to the requirement for SO 2 nonattainment plan submittals, Tennessee submitted a nonattainment plan for the Sullivan County Area on May 12, 2017. Pursuant to Tennessee's May 12, 2017, submittals and EPA's subsequent completeness determination letter dated October 10, 2017, sanctions under section 179(a) will not be imposed as a result of Tennessee having missed the April 4, 2015, submission deadline.

On June 29, 2018 (83 FR 30609), EPA proposed to approve Tennessee's May 12, 2017, nonattainment plan submittals and SO 2 attainment demonstration. The State's submittals and attainment demonstration included all the specific nonattainment SIP elements mentioned above. Comments on EPA's proposed rulemaking were due on or before July 30, 2018. EPA received two sets of relevant comments on the proposed approval of Tennessee's nonattainment area plan for the Sullivan County Area. These comments and others are available in the docket for this final rulemaking action. None of the comments received related to EPA's proposed approval of the emissions inventory pursuant to 172(c)(3) or the NNSR requirements pursuant to 172(c)(5), and these requirements are separate and severable from the requirements for which EPA received comments.

For a comprehensive discussion of EPA's analysis and rationale for approval of the emissions inventory and NNSR portions of the State's submittals for this Area, please refer to EPA's June 29, 2018, notice of proposed rulemaking. EPA has determined that the Tennessee SIP submittals provide a comprehensive, accurate, and current inventory of SO 2 emissions in the Sullivan County Area. In addition, Tennessee's SIP contains NNSR requirements at Tennessee Air Pollution Control Regulation 1200-03-09-.01(5) that satisfy the applicable federal NNSR requirements for permitting of new and modified major sources.

EPA is taking final action to approve the emissions inventory and NNSR portions of Tennessee's SO 2 nonattainment SIP submissions, which the State submitted to EPA on May 12, 2017, to meet certain nonattainment area planning requirements. EPA has determined that these portions of Tennessee's nonattainment SIP meet the applicable requirements of sections 110 and 172 of the CAA and applicable regulatory requirements at 40 CFR part 51.

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

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 30, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

This document of the Environmental Protection Agency was signed on January 4, 2021, by Mary Walker, Regional Administrator, pursuant to the Statutory Deadline of the Clean Air Act. That document with the original signature and date is maintained by EPA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned EPA Official re-signs the document for publication, as an official document of the Environmental Protection Agency. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register.

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

On July 10, 2019, the State of North Carolina submitted changes to the North Carolina SIP for EPA approval. EPA is finalizing changes to the following regulations under 15A North Carolina Administrative Code (NCAC) Subchapter 02Q, 1 Section .0300, Construction and Operation Permits: Section .0301, Applicability; Section .0303, Definitions; Section .0304, Applications; Section .0305, Application Submittal Content; Section .0307, Public Participation Procedures; Section .0308, Final Action on Permit Applications; Section .0309, Termination, Modification and Revocation of Permits; Section .0310, Permitting of Numerous Similar Facilities; Section .0311, Permitting of Facilities at Multiple Temporary Sites; Section .0312, Application Processing Schedule; Section .0313, Expedited Application Processing Schedule; Section .0314, General Requirements for All Permits; Section .0315, Synthetic Minor Facilities; Section .0316, Administrative Permit Amendments; and Section .0317, Avoidance Conditions. 2

The revision that is the subject of this final rulemaking makes changes to construction and operating permitting regulations under Subchapter 2Q of the North Carolina SIP. These changes revise the applicability of permit exemptions, permit application and processing procedures, and revise related definitions. Details regarding the background for these changes may be found in the proposed rulemaking that published October 19, 2020 (85 FR 66296). The comment period for this rulemaking closed on November 18, 2020. No adverse comments were received. EPA finds that the changes do not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable CAA requirement.

EPA has determined that the changes to the regulations above provide clarity to the applicability of permit exemptions, permit application and processing procedures, and definitions. The changes are minor changes that do not significantly alter the meaning of the regulations. The changes to the SIP satisfy CAA section 110(l) and do not interfere with attainment and maintenance of the national ambient air quality standards or any other applicable requirement of the Act. Therefore, EPA is approving the changes to these regulations.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the following sections of 15A NCAC Subchapter 2Q with a state-effective date of April 1, 2018: Section .0301, Applicability; Section .0303, Definitions; Section .0304, Applications; Section .0305, Application Submittal Content; Section .0307, Public Participation Procedures; Section .0308, Final Action on Permit Applications; Section .0309, Termination, Modification and Revocation of Permits; Section .0310, Permitting of Numerous Similar Facilities; Section .0311, Permitting of Facilities at Multiple Temporary Sites; Section .0312, Application Processing Schedule; Section .0313, Expedited Application Processing Schedule; Section .0314, General Requirements for All Permits; Section .0315, Synthetic Minor Facilities; Section .0316, Administrative Permit Amendments; and Section .0317, Avoidance Conditions. This finalization revises the applicability of permit exemptions, revises permit application and processing procedures, and amends definitions. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

EPA is approving North Carolina's July 10, 2019, SIP revision, which contains changes to the following regulations under 15A NCAC Subchapter 02Q, Section .0300, Construction and Operation Permits: Section .0301, Applicability; Section .0303, Definitions; Section .0304, Applications; Section .0305, Application Submittal Content; Section .0307, Public Participation Procedures; Section .0308, Final Action on Permit Applications; Section .0309, Termination, Modification and Revocation of Permits; Section .0310, Permitting of Numerous Similar Facilities; Section .0311, Permitting of Facilities at Multiple Temporary Sites; Section .0312, Application Processing Schedule; Section .0313, Expedited Application Processing Schedule; Section .0314, General Requirements for All Permits; Section .0315, Synthetic Minor Facilities; Section .0316, Administrative Permit Amendments; and Section .0317, Avoidance Conditions. EPA has concluded that these changes are consistent with the CAA.

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

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 30, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

This document of the Environmental Protection Agency was signed on January 7, 2021, by Mary Walker, Regional Administrator, pursuant to the Statutory Deadline of the Clean Air Act. That document with the original signature and date is maintained by EPA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned EPA Official re-signs the document for publication, as an official document of the Environmental Protection Agency. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register.

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

I. Background

EPA is approving changes to the North Carolina SIP that were provided to EPA through NCDEQ via a letter dated July 10, 2019. EPA is approving this SIP revision which makes changes to 15A North Carolina Administrative Code (NCAC) Subchapter 02Q, Section .0306, Permits Requiring Public Participation. 1 The July 10, 2019, SIP revision changes to Section .0306 add two types of permits subject to public participation and makes several minor edits, including the removal of obsolete regulatory references. 2 The permits listed in Section .0306 must undergo public notice for comments with the opportunity for the public to request a public hearing. Pursuant to Section .0307(d), Public Participation Procedures, the public comment period for these permits must last for at least 30 days.

EPA is approving the two additions to the list of permits requiring public participation pursuant to CAA section 110 as a SIP-strengthening measure and 40 CFR 51.161. EPA is approving the remaining changes to Section .0306 because they are minor edits that do not interfere with attainment and maintenance of the national ambient air quality standards or any other applicable requirement of the Act. See EPA's October 14, 2020 (85 FR 65013), notice of proposed rulemaking (NPRM) for further detail on these changes and EPA's rationale for approving them. EPA did not receive any adverse public comments on the October 14, 2020, NPRM. 3

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of 15A NCAC Subchapter 02Q, Section .0306, Permits Requiring Public Participation, state effective April 1, 2018, which expands the types of permits which require public participation and makes minor edits to the rule. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 4

EPA is approving changes to the North Carolina SIP included in a July 10, 2019, submittal. Specifically, EPA is approving changes to 15A NCAC 02Q .0306, Permits Requiring Public Participation, that add two types of permits to the list of permits that must undergo public participation and make minor edits, including the removal of obsolete regulatory references. EPA is approving these changes for the reasons described above.

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

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 30, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

This document of the Environmental Protection Agency was signed on December 14, 2020, by Mary Walker, Regional Administrator, pursuant to the Statutory Deadline of the Clean Air Act. That document with the original signature and date is maintained by EPA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned EPA Official re-signs the document for publication, as an official document of the Environmental Protection Agency. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

This is a summary of the Commission's Report and Order, FCC 20-159, adopted November 18, 2020, and released November 19, 2020. The full text of the Report and Order is available at https://docs.fcc.gov/public/attachments/FCC-20-159A1.pdf. To request materials in accessible formats for people with disabilities, send an email to FCC504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, 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 this Second Report and Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

In this Report and Order, the Commission streamlines its rules governing satellite services by creating an optional framework for authorizing both the blanket-licensed earth stations and space stations of a satellite system through a unified license. We also align the build-out requirements for earth stations and space stations and eliminate unnecessary reporting rules. These changes will reduce regulatory burdens, simplify the Commission's licensing of satellite systems, and provide additional operational flexibility.

On January 31, 2019, the Commission proposed at 84 FR 638 a simple framework for an optional unified license. The unified license would authorize operations of the satellite network, i.e., the space station and the earth stations operating with that space station. The unified license would be held by the satellite operator. To receive a unified license, the satellite operator would have to file an application with the normally required space station application information, plus certain certifications and information regarding earth station operations. It would not have to provide a Form 312 Schedule B or the detailed earth station information that would otherwise be required, but which is rendered duplicative or unnecessary by what was already submitted for the space station. Accordingly, the unified license would offer a more efficient means to authorize the earth stations in a satellite network, and one that better reflects the flexibility satellite operators exercise over the parameters of their satellite networks.

Scope. After review of the information submitted in the record, we conclude that the streamlining benefits of a unified authorization could apply to a variety of satellite and earth station licensees, and that we need not limit its application initially to certain regulatory frameworks. Accordingly, we will broadly make available a unified licensing option to all types of satellite and blanket-licensed earth station operations in the frequency bands listed below, including Earth Station in Motion (ESIM) operations in these bands. We will also permit non-U.S.-licensed satellite operators to receive a single grant with U.S. market access and blanket-licensed earth station operating authority. As proposed, the unified license will be held by the satellite operator, including authority for the blanket-licensed earth stations. We make the unified licensing framework available to operators in the following frequency bands:

As stated in the proposed rule, we will exclude from unified licensing any fixed-satellite service (FSS) operations under 10 GHz in light of ongoing Commission rulemakings and the unique, transitional status of some FSS operations in these bands. In addition, we will allow only blanket-licensed earth station operations to be included in a unified license. Thus, unified licensing will not be available in any frequency band shared with UMFUS. But in bands adjacent to UMFUS operations, FSS operations are authorized on a blanket-licensed basis today without any coordination with UMFUS. We reject any suggestion to revisit blanket FSS licensing in such bands. Similarly, we find no basis in the record to exclude from eligibility ESIM operations in the 28.35-28.6 GHz band adjacent to the 27.5-28.35 GHz band shared with UMFUS. The issue of out-of-band emissions from ESIMs operating in the 28.35-28.6 GHz band is currently being explored in a separate rulemaking and is not affected by the licensing posture of an ESIM in a separate earth station authorization or a unified license. In either case, ESIMs will have to comply with any revised out-of-band emissions requirement adopted in that rulemaking.

We similarly do not believe that we should increase burdens on blanket-licensed earth station deployment pursued through a unified license, as opposed to through existing blanket-licensing options, by requiring registration or notification of the ubiquitously deployed stations. Any such information-gathering for blanket-licensed earth station operations, if appropriate, would be more efficiently pursued with regard to specific rulemakings and frequency bands. Regarding the information omitted from a unified license application because it is duplicative or unnecessary, we note that the application will constitute a complete proposal for the satellite system, including the blanket-licensed earth station operations. If, after review of the complete application, a party has outstanding technical concerns, it may address them during the comment period.

In addition, we do not believe that the earth station technical showings currently required by 47 CFR 25.115(g)(1) and 25.132 are necessary for terrestrial operators to review and should not be replaced with a certification requirement. These showings are intended to confirm compliance with two-degree spacing limits for GSO FSS satellites. Given that satellite operators are currently allowed to certify compliance with two-degree spacing limits instead of providing technical showings, and the experience of satellite commenters that such technical demonstrations are unnecessary to confirm the earth station's compliance with two-degree limits, we do not believe that the burden of providing these demonstrations is justified by their purpose. In any event, adjacent-band terrestrial operators will have an opportunity to comment on any unified license application including ESIM or other blanket-licensed earth station authority, and they may request additional information regarding the earth station operations. If an UMFUS operator experienced interference due to adjacent-band operations of a unified licensee, it could address its concerns to the licensee directly or to the Commission.

The unified license will not be a separate license that a satellite operator has to obtain in addition to its existing satellite license. Rather, it will constitute a space station license that also includes authority for the operation of earth stations with that particular geostationary-satellite orbit (GSO) space station or those (non-geostationary satellite orbit) NGSO space stations. Whether a satellite operator chooses to include such earth station authority or not, the space station authority will remain as it is today. The earth station authorization may include some or all of the frequency bands authorized for the associated space station(s).

In response to a request for clarification, we affirm that requests for modification or renewal, special temporary authority, and application amendments related to space station operations, earth station operations, or both, can be made in the narrative portion of an application in the unified license file. While a unified license contains authority for both space station and earth station operations, we consider such a license to be an extension of the satellite licensing process, to be held by the satellite operator and applied for in the International Bureau Filing System (IBFS) using the general satellite licensing procedures. Accordingly, for any renewal applications, we will apply the deadlines and procedures for renewal of the space station authority to the entire unified license, and not consider any potentially conflicting requirements for renewal of the earth station authority. In addition, since there are no Commission licenses for multiple GSO-satellite systems, if a GSO satellite under a unified license became inoperable at the assigned orbital location ( e.g., due to an in-orbit failure or end-of-life deorbiting), the unified license would cease, including all earth station authority to communicate with that satellite. The earth stations that formerly operated with that retired satellite could operate under a separate unified license authorizing communication with a replacement satellite, under a unified license for a non-replacement satellite, or under a separate earth station license. Only the earth stations' authority to operate with the retired satellite would cease. For an NGSO system license, which is typically a type of blanket license for space stations, the loss of a single space station would not usually terminate the license.

We also direct the International Bureau to consider and release, as appropriate, further guidance regarding the implementation of a unified licensing framework in an explanatory public notice consistent with the intent of this rulemaking to simplify and streamline, to the maximum extent practicable, the authorization of space stations and earth stations through a unified license. We decline to postpone the effectiveness of the unified license framework until after an explanatory public notice is released as we expect that the practical experience the International Bureau would gain in implementing the new framework will prove valuable and important in developing further guidance.

Non-U.S.-Licensed Satellites. We will allow non-U.S.-licensed satellite operators to obtain market access through a unified authorization. Structurally, the unified authorization will consist of an earth station license and a grant of market access for the space station. This same formal licensing structure is possible today when a satellite operator files its own earth station license application and seeks satellite market access through the earth station application. In contrast with this current option, the unified authorization may only be held by a satellite operator, will exclude individually coordinated earth stations, and will be processed in IBFS using the filing options and procedures available to space station applications rather than earth station applications.

Blanket-Licensed Earth Stations. Including blanket-licensed earth stations within a unified license would streamline the authorization of these earth stations without raising potential site-specific concerns, because the Commission has already determined that such earth stations may be deployed ubiquitously, without other operators knowing their precise locations. The unified license will merely capture this existing authority in a different type of license, without allowing any earth station operations that would be prohibited under the existing method of a blanket earth station license. Therefore, no other services will be affected by permitting such operations under a blanket license. Accordingly, we will allow any type of earth station operation eligible for blanket licensing to be included in a unified license.

Individually Coordinated Earth Stations. Although the Commission proposed to include in the unified license conditional authority for earth stations that must be individually coordinated and are not eligible for blanket licensing, we decline to adopt this proposal. For one, we find that many of the benefits of such a proposal (such as linking the deployment of those earth stations to the deployment of the associated satellite, and thereby allowing the satellite operator to secure its gateway earth station locations several years earlier than the current licensing process) are better addressed more directly (for example, by modifying earth station build out requirements). For another, we find that adding such earth stations to a unified license would create more complexity than its streamlining benefit. Whether included in a unified license or not, a separate earth station filing would be required to provide the necessary site-specific information. Further, under the earth station certification proposal we adopt below, an earth station license applicant could similarly take advantage of the information provided in a corresponding space station application to omit any data that is duplicative. Therefore, it could be that the filings for individually coordinated earth stations—whether as part of a unified license or separately licensed using the certification procedure—would be similar in terms of the information provided, if not identical. At the same time, creating a new category of earth station filings would impose burdens on Commission resources. Therefore, in light of the possible complication that separate earth station filings would bring to a unified license framework, and the potentially marginal reduction in application burdens, we decline to adopt the proposal for individually coordinated earth stations.

In short, unified licensing will not be available in any frequency bands in which blanket earth station licensing is not permitted. In such bands, earth stations will continue to be licensed separately from space stations.

Application Requirements. To add blanket-licensed earth station authority to a space station license or market access grant, the satellite operator would need to provide only the additional information required in an equivalent earth station application, but which is not already covered by what was filed for the space station. This includes, for example, any certification under 47 CFR 25.115(i) that the use of a contention protocol in an earth station network will be reasonable, because that certification is not covered by the information provided in a space station license application. Submission of an earth station Form 312 Schedule B would not be required. As stated in the proposed rule, in applications where the satellite operator certified compliance with the two-degree spacing power limits under 47 CFR 25.140(a)(3)(i)-(iv), for example, the applicant would not need to provide any additional information on earth station antenna performance or verified performance currently required by 47 CFR 25.115(g)(1) or 25.132 because the certification already attests to compliance with the power limits involved in those additional showings. Further instances of redundancy will necessarily be reviewed by Commission staff on a case-by-case basis initially, given that, at the urging of commenters, we are making the unified license option widely available across several different services and types of operation, each with distinct earth station and space station information requirements. The goal of this review will be to streamline, as far as possible within current rules, the earth station information required. We also note that a unified license may be granted in the absence of default power limits, based on the technical showings provided, and that nothing about the unified license would change the application of section 25.140(d) to space stations authorized in, or outside of, a unified license.

Control of Earth Stations. Terrestrial operators may address questions or concerns to the satellite operator directly, as holder of the unified license, or to the Commission. Today, many satellite licensees are already held responsible for compliance with earth station power limits for their satellite networks. Further, it is common practice in satellite service contracts for the satellite operator to specify and require third party earth station operators to adhere to technical parameters consistent with its license, coordination agreements and the efficient technical use of its network. We continue to believe that contractual provisions are sufficient to hold the unified licensee as the responsible entity. Therefore, we do not find any basis in the record to modify our rules regarding the control of earth stations.

Fees. As an initial matter, we note that there is an ongoing, comprehensive Commission rulemaking involving updates and additions to the application fee schedules. The interim fee decisions taken in this Report and Order will be considered in the larger application fee rulemaking, and may change significantly based on the analyses conducted there. In adopting a unified license framework, however, we must determine an initial treatment with respect to our application-fee requirements.

A unified license application will contain all the information necessary to assess the proposed operation of the space station(s) and blanket-licensed earth stations in the satellite system, consistent with our rules. Commission staff will review both the space and ground components of the satellite system, and commenters may raise issues regarding either component to be resolved in the licensing decision. Because we anticipate that processing a unified license application will involve similar Commission resources to the processing of individual space station applications and earth station applications making use of the new certification option we adopt below, we will assess a fee for unified license applications that is equal to the combined fees of the relevant space station license application and earth station blanket-license application. This treatment is intended to provide a simple, clear solution until the comprehensive Commission application fee rulemaking is completed. Because there are currently no fee codes in IBFS for such combined fees, unified license applicants will need to pay the application fee manually.

In the case of a non-U.S.-licensed space station operator seeking a U.S. earth station license in combination with its petition for market access, we will—for now—assess the earth station application fee schedule to such requests. This provides equal treatment with the similar, existing procedure of market access through an earth station application. However, we note the inconsistency and potential unfairness of assessing substantially lower fees to such market access requests than to U.S. licensees, and intend to fully consider this and all application fee matters in the rulemaking dedicated to revising the Commission's application fees broadly.

In addition to application fees, the Commission also charges annual regulatory fees. These fees are based on licenses held at the end of the relevant fiscal year. The Commission recently concluded its fiscal year 2019 regulatory fee rulemaking, and sought comment on additional changes for future years. We note that the fiscal year 2019 report and order for the first time assessed the same regulatory fees against non-U.S.-licensed satellite operators granted U.S. market access as the Commission assesses to satellite operators holding a Commission space station license. We defer to a future regulatory fee proceeding the question of how to assess such fees to the new category of unified licenses.

As an alternative or addition to the unified license proposal in the proposed rule, the Commission also asked whether it should permit applicants for GSO FSS earth station licenses to submit certifications of compliance with the terms and conditions of the communicating space station network as a substitute for filing the technical information required by Form 312, Schedule B. Such certifications would allow independent earth station operators to benefit from streamlined information requirements in a similar way as earth stations authorized through a unified license held by the satellite operator, while remaining responsible for compliance with its certification.

We believe that there is no general need for GSO FSS earth station applicants to submit technical information that is duplicative (or unnecessary) due to the information already provided for the satellite with which they will communicate. Furthermore, and consistent with our decision above to expand the streamlining benefits of the unified license to additional services and types of operation, we see no general need to require such duplicative or unnecessary information for any earth station in any service when an appropriate certification of compliance with the satellite authorization is made.

With respect to the frequency bands to which this option will apply, we take an approach consistent with our decisions above regarding the unified license framework. Consistent treatment is appropriate because the same types of duplicative or unnecessary information may be omitted either through an earth station certification of compliance with the relevant satellite authorization or through a unified license application. Accordingly, we will exclude from the earth station certification option FSS operations under 10 GHz and operations subject to 47 CFR 25.136. We will include ESIM operations in the 28.35-28.6 GHz band because doing so will have no impact on the applicable out-of-band emissions limits that affect UMFUS operations in the adjacent 27.5-28.35 GHz band.

Therefore, to conserve applicant and Commission resources while ensuring the necessary information remains on file with the Commission, we conclude it will serve the public interest to adopt a general provision for earth station licensing that an earth station applicant certifying that it will comply with the applicable terms and conditions of any space station's authorization with which it communicates need not provide technical demonstrations or other information made duplicative or unnecessary by the certification, with the exceptions just noted. This necessarily applies to many frequency bands because the requirement to submit technical data in Schedule B, specifically identified as a source of potentially unnecessary information in the proposed rule, is applicable by default to all applications for transmitting earth stations.

Applicants taking advantage of the certification option need not identify the information that is duplicative or unnecessary at this time. Given that we are excluding FSS bands below 10 GHz and bands shared with UMFUS, and that the vast majority of earth station applications are non-controversial and unopposed, such a requirement would lessen the streamlining benefits of the certification option without providing a compensating benefit. As under the unified license approach above, parties may raise questions on specific applications during the comment period. Finally, we believe that guidance the International Bureau may provide on the new earth station certifications, like on the unified license applications, would benefit from practical experience implementing the rules. We therefore decline to delay the effectiveness of the new rule.

In the proposed rule, the Commission identified a regulatory disconnect between the five-year deployment requirement for a GSO space station authorized in frequency bands subject to 47 CFR 25.136 and the one-year deployment requirement for earth stations communicating with such a satellite. The Commission proposed to align these build-out requirements. As proposed, an earth station authorized through 47 CFR 25.136 would have a build-out term defined as either the date the associated satellite becomes operational or one year, whichever is longer.

Scope. Considering the benefits of streamlining, regulatory certainty, and parity among different types of earth station licensees, we expand on the build-out term proposal in the proposed rule for earth stations licensed under 47 CFR 25.136 to include all blanket-licensed earth station operations eligible to be included in a unified license ( i.e., other than FSS below 10 GHz), and further to allow the same treatment for blanket earth station licenses and individual earth station licenses, which are not part of a unified license, with the same exception for FSS below 10 GHz where new earth station deployments have been significantly limited pursuant to the Commission's decisions to significantly increase development of terrestrial services in some of these bands. Although we excluded from the unified licensing option earth station operations that must be individually coordinated, these operations will benefit the most from extended build-out periods to ensure that the necessary siting locations remain available once the satellite is ultimately launched.

Bands Shared with UMFUS. Applying an extended build-out period to earth station licenses subject to 47 CFR 25.136 will provide greater regulatory certainty to satellite operators planning newer-generation GSO or NGSO satellites with narrow spot-beams and therefore more limited earth station siting options. We do not believe that doing so will fundamentally alter the sharing regime with UMFUS or the rights of UMFUS operators. However, we believe that the earth station coordination reached with UMFUS licensees should be brought up to date once the earth station is actually constructed and operating. This will ensure that the UMFUS licensees have accurate information on the earth station operations notwithstanding the substantially longer earth station build-out period we are allowing. Providing UMFUS licensees with the certainty of an updated coordination will counterbalance the potential chilling of some UMFUS developments that might result from the extended earth station build-out periods. As such, the re-coordination requirement serves as an important check on potential warehousing. Requiring earth station operators to simply notify changes to UMFUS licensees would instead place the burden of those changes, and the risk of non-deployment of the earth station, on UMFUS operators. We decline to shift this risk onto UMFUS operators, given that the one-year build-out requirement provided underlying support for the earth station siting rules adopted in 47 CFR 25.136. We believe that a re-coordination requirement for earth station licensees deploying in UMFUS bands is a reasonable tradeoff for the added flexibility longer build-out period provide these licensees. Nonetheless, we note that earth station applicants in shared UMFUS bands will have several options. They may: (1) Construct and bring the earth station into operation within one year of licensing; (2) re-coordinate; or (3) deploy the earth station on an unprotected basis.

We find no basis for treating NGSO FSS earth stations differently than GSO FSS or other earth stations included in the scope of our proposal. Moreover, the record is not fully developed for the Commission to decide whether it would serve the public interest to establish a limit on the eligible number of NGSO FSS earth stations or rely solely on the waiver process. We will consider the need for a future rulemaking on the issue of extended build-out periods after monitoring their implementation.

Accordingly, we will require earth station operators that take advantage of the extended build-out period associated with deployment of a communicating satellite to re-coordinate with the UMFUS licensees within one year before actually operating the earth station. Such re-coordination should account for changes to the earth station equipment or configuration in the intervening years, as well as to geographic and demographic changes in the surrounding area. In order to ensure that the required re-coordination has taken place, notice of the completed re-coordination must be filed in IBFS prior to commencement of earth station operations. For earth stations that are constructed and brought into operation within one year of licensing, as currently required, such re-coordination will not be necessary.

Build-out Period. We also acknowledge that it may be difficult to complete construction of all licensed earth stations and operate them on the first day that the satellite is certified as brought into operation, as proposed in the proposed rule. In addition, the next generation of high-throughput satellites may deploy large numbers of gateway earth stations that are not all needed to operate upon the initial deployment of the satellite, given the likely period of ramp-up in traffic over the satellite system. To address the practical realities of potentially testing all earth stations in a satellite system in a single day, and to allow some flexibility during the initial period of increase in satellite traffic, we will extend the earth station construction requirement to be six months after the associated space station is certified as brought into operation.

Warehousing Concerns and a Performance Bond. We note that individually licensed earth stations will operate in frequency bands already included in a space station license. The space station license requires posting of an escalating $3 million bond for GSO networks or an escalating $5 million bond for NGSO systems. The bond is payable if the satellite system is not deployed within the required milestones included in the license. This existing bond requirement acts as a deterrent to satellite operators without a firm intent to deploy their licensed systems in the particular frequency bands. Further, each individual earth station license application carries a separate application fee. With these existing disincentives to warehousing, the scant record on a bond alternative, and the potential burdens associated with administering and enforcing a bond for many individually licensed earth stations that could communicate with a number of space stations, we decline to adopt an earth station bond at this time.

Nonetheless, we intend to closely follow this issue in the future and to pursue measures, including possible earth stations bonds, based on further experience. In particular, we do not expect many cases in which a single operator files, under 47 CFR 25.136, for more than one earth station license within a given county or PEA, or for an earth station that covers the maximum permitted aggregate population within the relevant UMFUS licensing area. Such filings may encourage further rulemaking on the issue of anti-warehousing measures. While we defer the question of addressing warehousing incentives until we develop more experience with the implementation of extended earth-station build-out periods, we will consider in addressing the need for any such measures whether to apply them to previously granted earth station licenses with extended build-out periods.

In the proposed rule, the Commission proposed to repeal the majority of the satellite annual reporting requirements in 47 CFR 25.170 because the reports are not regularly used by Commission staff. The Commission proposed to retain only the requirement for an annual confirmation of the accuracy of the contact information on file and to move this requirement to 47 CFR 25.171. We adopt the proposal in the proposed rule. The majority of the annual reporting requirements in 47 CFR 25.170 have proven unnecessary for the typical work of Commission staff particular to satellite licenses. In contrast, failures in internal communication or other issues can cause updates in point of contact information not to be reported to the Commission in compliance with 47 CFR 25.171. In these cases, including the up-to-date contact information has proven important to ensure such information does not remain inaccurate indefinitely. We also update the cross-reference in 47 CFR 25.172(a)(1) to reflect this change.

In the proposed rule, the Commission observed that the default out-of-band emissions rule in 47 CFR 25.202(f) dates from the 1970s, and that its wording has created confusion among some operators. The Commission proposed to replace this rule with a requirement to comply with an international out-of-band emissions standard, ITU-R SM.1541-6, “Unwanted emissions in the out-of-band domain,” August 2015. However, given concerns expressed on the record regarding this proposal and the importance of out-of-band-emission limits for the protection of adjacent services and the implementation of Commission band segmentation decisions, we decline to modify 47 CFR 25.202(f). We recognize that replacing 47 CFR 25.202(f) with the limits contained in the ITU Recommendation would relax some out-of-band emission requirements immediately at the band edge. The current record has not considered the specific impact of this relaxation on adjacent terrestrial services. We are therefore not in a position to conclude terrestrial services would be unaffected, or that the relaxation would otherwise serve the public interest. However, we may seek in the future to develop a full record on this issue and reconsider adoption of an internationally standardized, default out-of-band emissions limit for satellite services.

The proposed rule invited comment on whether to modify the acceptability standard for applications under 47 CFR part 25 to explicitly state that an applicant may correct any errors or omissions within 60 days of a Commission request, and that applications will be accepted for filing automatically within 30 days of filing, unless the Commission determines otherwise. After review of the split record on this issue and consideration of long-standing staff practices, we are not convinced that an explicit, one-sized-fits-all acceptability approach is desirable across the variety of satellite and earth station applications presented under 47 CFR part 25. Rather, we believe that the current framework has proven flexible to enable Commission staff to address errors without undue disruptions to applicants or other operators. We therefore decline to modify the acceptability for filing rules.

In the proposed rule, the Commission proposed to reduce filing burdens on some earth station licensees by repealing the requirement to notify the Commission of the types of minor changes to authorized earth stations listed in 47 CFR 25.118(a)(4)— i.e., those that the Commission does not expect to worsen the interference environment for other operators.

After review of the record, we adopt the proposed streamlining measure by moving the enumerated types of modifications from 47 CFR 25.118(a)(4) to 47 CFR 25.118(b), which lists earth station modifications that do not require notification and include two additional modifications that require Commission notification. Namely, decreases in antenna height and any change that increases or decreases the earth station's power flux-density (PFD) contour. The PFD contour is an essential part of the initial application under 47 CFR 25.136 in bands shared with UMFUS and any modification such as to antenna height, power, orientation, etc. that changes the PFD contour will trigger the notification requirement. We also clarify that the addition of new transceiver and antenna combinations to an existing blanket earth station license does not require prior Commission notification when they meet the requirements currently listed in 47 CFR 25.118(a)(4).

We do not believe that a change in earth station antenna pattern under 47 CFR 25.118(a)(4)(i) will negatively impact terrestrial operators because it must not, in accordance with the rule, exceed the previously filed EIRP or EIRP density envelope. As such, we do not believe these notices are necessary for operators in other services because the “worst case” interference scenario will not be affected. We also do not believe that an earth station operating in a band shared with UMFUS at a power level below its maximum authorized power level should be required to notify the Commission of its lower operating power level. No such requirement currently exists—earth stations may be operated at different power levels based on varying requirements and conditions, provided they do not exceed their authorized power envelopes—and we find no basis to adopt such a new reporting requirement.

However, we do believe that the Commission should require earth station operators to provide notice of a decrease in antenna height pursuant to this provision. Although in many cases a decrease in earth station antenna height would improve, not worsen, the interference environment for terrestrial operators as ground clutter would play a larger role in suppressing emissions in unwanted directions, that is not always the case. For example, a lowered antenna may be more likely to radiate higher side lobes into an UMFUS station or may bring the antenna closer to some local metallic object, creating induced spurious effects on the resultant radiation pattern that create higher interference levels in certain directions. And a decrease in antenna height may result in decreased PFD contours which provide an UMFUS operator the opportunity to serve an area that was previously excluded, but now no longer is. Therefore, we will require notification of decreases in antenna height.

In addition to the proposals and questions in the proposed rule, some additional proposals were made in the comments of this proceeding to streamline other aspects of the Commission's satellite licensing rules. SES additionally reiterated one issue contained in its Petition for Reconsideration of a 2015 satellite streamlining order, which will be addressed in that rulemaking. We have reviewed these proposals and conclude that, while they are outside the scope of the proposed rule, we may revisit some of these proposals in the future.

As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in Further Streamlining Part 25 Rules Governing Satellite Services, Notice of Proposed Rulemaking. The Commission sought written public comment on the proposals in the proposed rule, including comment on the IRFA. No comments were received on the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

The Order creates a new, streamlined license for both space stations and earth stations and adopts other streamlining measures for the authorization of earth stations. It also removes the annual reporting requirements for satellite operators and makes other corrections in 47 CFR part 25.

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

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 for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

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 rules adopted herein. 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 which: (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). Below, we describe and estimate the number of small entities that may be affected by adoption of the final rules.

This category comprises firms “primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” Satellite telecommunications service providers include satellite and earth station operators. The category has a small business size standard of $35 million or less in average annual receipts, under SBA rules. For this category, U.S. Census Bureau data for 2012 show that there were a total of 333 firms that operated for the entire year. Of this total, 299 firms had annual receipts of less than $25 million. Consequently, we estimate that the majority of satellite telecommunications providers are small entities.

The Order adopts several rule changes that would affect compliance requirements for space station and earth station operators. For example, the Order creates a new, optional, streamlined licensing procedure for both space stations and earth stations in a satellite system. It also eliminates some reporting requirements for space station and earth station licensees. In total, the actions in this Order are designed to achieve the Commission's mandate to regulate in the public interest while imposing the lowest necessary burden on all affected parties, including small entities.

The RFA requires an agency to describe any significant alternatives that it has considered in developing its 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.”

In this Order, the Commission creates a new, optional, streamlined licensing procedure for both space stations and earth stations in a satellite system specifically designed to eliminate redundancies and reduce regulatory burdens. The Commission also adopts a certification option for earth station applicants to eliminate duplicative or unnecessary information filed with the Commission. In addition, the Commission repeals certain other requirements with the aim of streamlining its requirements. Overall, the actions in this document will reduce burdens on the affected licensees, including small entities.

Report to Congress: The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register .

This document contains new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public to comment on the information collection requirements contained in this Report and Order as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

In this present document, we have assessed the effects of requiring some earth station licensees to re-coordinate with Upper Microwave Flexible Use Service licensees under 47 CFR 25.136, and find that it may increase coordination costs for some businesses with fewer than 25 employees.

The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, 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 this Second Report and Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

It is ordered, pursuant to sections 4(i), 7(a), 10, 303, 308(b), and 316 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 157(a), 160, 303, 308(b), 316, that this Report and Order is adopted, the policies, rules, and requirements discussed herein are adopted, and part 25 of the Commission's rules is amended as set forth below.

It is further ordered that the rule amendments in this Report and Order will become effective 30 days from the date of publication in the Federal Register , except for those amendments which contain new or modified information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act which will become effective after the Commission publishes a document in the Federal Register announcing such approval and the relevant effective date.

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

It is further ordered that the Commission shall send a copy of this 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 discussed in the preamble, the Federal Communications Commission amends 47 CFR part 25 as follows:

FRA is issuing this E.O. to implement Executive Order 13998, 1 which directs the Secretary of Transportation to take action to require masks to be worn in compliance with CDC guidelines in or on trains. 2

On January 31, 2021, the Transportation Security Administration (TSA) issued Security Directive (SD) 1582/84-21-01, Security Measures—Face Mask Requirements (TSA SD), to implement Executive Order 13998 and to enforce the CDC Order with respect to conveyances and transportation facilities used in various modes of surface transportation, including passenger rail.

On February 12, 2021, the Secretary of Transportation issued an Action Memorandum to further USDOT's efforts to implement the President's Executive Order 13998. Finding that COVID-19 and its variants continue to present unprecedented challenges to the health of the traveling public in all modes of transportation, and that the wearing of masks on all modes of transportation can mitigate the risk of travelers spreading COVID-19 and can instill safety and confidence in transportation systems, the Secretary directed FRA to take action to support and carry out enforcement of the CDC Order with respect to transportation entities subject to its jurisdiction.

In issuing this E.O., FRA is exercising its emergency railroad safety authority to the extent necessary to require mask wearing in accordance with the CDC Order and implement Executive Order 13998 with respect to freight rail operations and those portions of passenger rail operations  3 not already covered by the TSA SD. FRA is not exercising its authority over any other aspect of the COVID-19 pandemic and does not otherwise intend by this E.O. to affect working conditions for employees and contractors engaged in railroad operations. 4

Authority to enforce Federal railroad safety laws has been delegated by the U.S. Secretary of Transportation to the Administrator of FRA. 49 U.S.C. 103; 49 CFR 1.89(e) and internal delegations. Railroads are subject to FRA's safety jurisdiction under the Federal railroad safety laws. 49 U.S.C. 20101, 20103. FRA is authorized to issue emergency orders where an unsafe condition or practice “causes an emergency situation involving a hazard of death, personal injury, or significant harm to the environment.” 49 U.S.C. 20104. Emergency orders may immediately impose “restrictions and prohibitions . . . that may be necessary to abate the situation.” Id.

Due to the ongoing COVID-19 pandemic, and to reduce the spread of COVID-19, President Biden issued Executive Order 13998, Promoting COVID-19 Safety in Domestic and International Travel, on January 21, 2021, requiring masks to be worn in airports, on commercial aircraft, and in various modes of surface transportation, including rail. To implement Executive Order 13998, to require compliance with the public health standards set forth in the CDC Order, 5 and due to the immediate need to ensure masks are worn appropriately in the railroad industry to prevent the spread of COVID-19, FRA has determined that an emergency situation involving a hazard of death and personal injury exists, and is issuing this E.O. pursuant to the authority of 49 U.S.C. 20101, 20104. FRA is authorized to promote safety in every area of railroad operations. 49 U.S.C. 20101, 20103. 6 The failure to wear masks as required by the CDC Order during railroad operations could impact railroad employees' safety with respect to the risks of COVID-19. Consistent with these mandates and FRA's authority, and after consultation with CDC and TSA, FRA is issuing this E.O. to require freight and passenger railroad carriers to comply with the mask  7 requirements of the CDC Order  8 during railroad operations subject to FRA's railroad safety jurisdiction, except to the extent portions of the passenger railroad carrier's operations are already covered by the TSA SD. For example, this E.O. applies to all persons in or on a freight train, locomotive, high-rail vehicle, crew transportation vehicle, or in a railroad transportation facility, terminal, yard, storage facility, yard office, crew room, maintenance shop, and other areas regularly occupied by railroad personnel. While the CDC Order applies to all persons awaiting, boarding, or alighting a conveyance and while in a transportation hub, 9 this E.O. does not apply to passengers or persons (including railroad carrier personnel) in or on a passenger train or in public areas of passenger railroad transportation hubs or facilities. The mask requirements in TSA SD 1582/84-21-01, Security Measures—Face Mask Requirements, apply to passengers and such persons.

There is currently a pandemic of respiratory disease, COVID-19, caused by a novel coronavirus (SARS-CoV-2). As of February 16, 2021, there have been over 108,000,000 confirmed cases of COVID-19 globally, resulting in nearly 2,400,000 deaths. 10 As of February 14, 2021, there have been over 27,000,000 cases identified in the United States, and over 482,000 deaths due to the disease. 11

According to the CDC, multiple new SARS-CoV-2 variants have emerged in recent weeks, including at least one with evidence of increased transmissibility. 12 These variants seem to spread more easily and quickly than other variants, which may lead to more cases of COVID-19. 13 An increase in the number of cases will put more strain on health care resources, lead to more hospitalizations, and potentially lead to more deaths. 14 While the CDC is closely monitoring these new variants to learn more about them, rigorous and increased compliance with public health mitigation strategies, such as the use of masks, is essential to limit the spread of the virus including any new variants. 15 Additionally, controlling the spread of the virus by implementing public health measures such as mask wearing will help prevent new mutations, as viruses will not mutate well if they do not have the opportunity to replicate freely. 16 In short, given these developments, it is more critical than ever that persons wear masks whenever possible to help prevent the spread of the virus that causes COVID-19 and the further emergence of new variants. The CDC has also recently published research documenting a decline in COVID-19 hospitalization growth rates associated with statewide mask mandates. 17 For a detailed discussion on how appropriate mask wearing helps reduce COVID-19 transmission, FRA refers readers to the CDC Order. 18

As of February 1, 2021, field observations  19 from FRA's railroad safety inspectors regarding mask use on railroad property indicate that the critical practice of wearing a face mask is not consistent or uniform among railroad personnel. While some railroad carriers require their personnel to wear masks when working in an occupied locomotive cab and in rail facilities and shops, FRA has found this is not a universal requirement. FRA has observed railroad personnel often not wearing a face mask on railroad property, both in situations where social distancing is possible, and situations involving close proximity to others. FRA inspectors have also observed railroad personnel who did not put on a face mask when approached by the inspectors to discuss matters of railroad safety.

Taking into consideration the unique and exigent circumstances presented by the COVID-19 pandemic (particularly the recent emergence of variants with increased transmissibility), as well as the inconsistent use of masks observed by FRA inspectors through FRA inspection and investigation during railroad operations, FRA has determined that the COVID-19 pandemic has created an unsafe condition or practice involving a hazard of death or personal injury—not only to railroad personnel, but also to FRA and participating State  20 rail safety inspectors who interact with railroad personnel during the performance of their essential railroad safety duties. This E.O. is necessary to abate this emergency situation, by FRA requiring face mask use in accordance with the CDC Order, to ensure a minimum level of nationwide compliance, 21 together with the TSA SD. Railroad carriers  22 and their personnel must comply with the mask-wearing requirements set forth in the CDC Order while engaged in railroad operations, 23 including whenever they are in a transportation hub/facility  24 under the railroad carrier's control (regardless of duty status).

America's railroad transportation system is essential—not only for public health, but also for America's economy and other bedrocks of American life. Railroads carry life-saving medical supplies and medical providers into and across the nation to our hospitals, nursing homes, and physicians' offices. Trains bring food and other essentials to our communities and bring America's workforce to their jobs. Requiring mask use on our railroads will protect railroad employees and contractors, as well as FRA and participating State rail safety inspectors who enforce Federal railroad safety laws. Requiring mask use will also help control the spread of the virus causing the COVID-19 pandemic, slow the rate of international spread from trains moving across U.S. borders, prevent the emergence of new variants, and more quickly re-open America's economy.

For reasons described in the CDC Order, this E.O. applies to railroad personnel who have received a COVID-19 vaccine and/or who have recovered from COVID-19. 25

Based on the foregoing, FRA has determined that the spread of the virus that causes COVID-19 creates an emergency situation involving a hazard of death or personal injury. Accordingly, under the authority of 49 U.S.C. 20104, delegated to the Administrator of FRA by the Secretary of Transportation, 49 CFR 1.89, it is hereby ordered that freight railroads, passenger railroads, and any other person whose actions are necessary to effectuate the directives in this E.O., take the following actions, as required:

I. Railroad carriers. (A) Railroad carriers must require their personnel to wear a mask in compliance with the CDC Order while engaged in railroad operations, including whenever in a transportation hub/facility under the railroad carrier's control (regardless of duty status), except as described in Section III (Exceptions and exemptions), below. For the purpose of this E.O., the term “personnel” includes employees, contractors, probationary employees, and volunteers. Railroad carriers must provide their personnel with prominent and adequate notice of the mask requirements to facilitate awareness and compliance. 26 At a minimum, this notice must inform railroad carrier personnel of the following:

1. Federal law requires every individual to wear a mask while engaged in railroad operations unless otherwise exempted and failure to comply may result in removal from service.

2. Refusing to wear a mask is a violation of Federal law and railroad carrier personnel may be subject to FRA enforcement action against them individually.

(B) Railroad carriers must establish written procedures to manage situations with their personnel who refuse to comply with the requirement to wear a mask. At a minimum, for any person who is not exempted from the requirement to wear a mask and who refuses to comply with an instruction given by the railroad carrier with respect to wearing a mask, the railroad carrier must:

1. Remove the person from performing duties in support of railroad operations; and

2. Make best efforts to remove the person from the railroad transportation hub/facility as soon as practicable.

II. Railroad carrier personnel. Railroad carrier personnel must comply with the mask wearing requirements of the CDC Order while engaged in railroad operations, including whenever in a transportation hub/facility under the railroad carrier's control (regardless of duty status), except as described in Section III.D., below. For the purpose of this E.O., the term “personnel” includes employees, contractors, probationary employees, and volunteers.

III. Exceptions and exemptions. (A) While the CDC Order applies to all persons awaiting, boarding, or alighting a conveyance and while in a transportation hub, this E.O. does not apply to passengers or persons (including railroad carrier personnel) in or on a passenger train or in public areas of passenger railroad transportation hubs or facilities. Note: The mask requirements in TSA SD 1582/84-21-01, Security Measures—Face Mask Requirements, apply to passengers and such persons.

(B) The requirement to wear a mask does not apply under the following circumstances:

1. When necessary to temporarily remove the mask for identity verification purposes.

2. For brief periods, while eating, drinking, or taking oral medications. 27 Note: Prolonged periods of mask removal are not permitted for eating or drinking; the mask must be worn between bites and sips.

3. While communicating with a person who is deaf or hard of hearing, when the ability to see the mouth is essential for communication.

4. If unconscious (for reasons other than sleeping), incapacitated, unable to be awakened, or otherwise unable to remove the mask without assistance. 28

5. When necessary to temporarily remove the mask to provide a breath or saliva specimen for required alcohol testing under U.S. Department of Transportation drug and alcohol testing regulations or an employer-mandated substance abuse testing program.

(C) The following persons are exempted from wearing masks:

1. Persons in private conveyances operated solely for personal, non-commercial use.

2. A driver, when operating a commercial motor vehicle, such as a crew transportation van, limo, or taxi, as this term is defined in 49 CFR 390.5, if the driver is the sole occupant of the vehicle.

3. A person who is the sole occupant of an enclosed cab of a locomotive, hi-rail vehicle, roadway maintenance machine, or any other on-track equipment that has an enclosed cab.

(D) This E.O. exempts the following categories of persons from wearing masks:  29

1. People with disabilities who cannot wear a mask, or cannot safely wear a mask, because of the disability as defined by the Americans with Disabilities Act (42 U.S.C. 12101 et seq. ). 30

2. People for whom wearing a mask would create a risk to workplace health, safety, or job duty as determined by the relevant workplace safety guidelines or Federal regulations. 31

The requirements in this E.O. do not preempt any State, local, Tribal, or territorial rule, regulation, order, or standard necessary to eliminate or reduce a local safety hazard, which includes public health measures that are the same or more protective of public health than those required in this E.O., if that provision is not incompatible with this E.O.

Any railroad carrier affected by this E.O. may petition for special approval to take actions not in accordance with this E.O. Petitions must be submitted to the Associate Administrator for Railroad Safety, who is authorized to act on those requests without amending this E.O. In reviewing any petition for special approval, the Associate Administrator will grant petitions only if the petitioner has clearly articulated an alternative action that will provide, in the Associate Administrator's judgment, at least a level of safety equivalent to that provided by compliance with this E.O.

Any violation of this E.O. may subject the person (a railroad carrier) committing the violation to a civil penalty of up to $118,826 for each day the violation continues. 49 U.S.C. 21301 and 86 FR 1751 (Jan. 11, 2021). Any individual (railroad personnel) who willfully violates a provision stated in this order is subject to civil penalties under 49 U.S.C. 21301. In addition, any individual (railroad personnel) whose violation of this order demonstrates the individual's unfitness for safety-sensitive service may be removed from safety-sensitive service on the railroad under 49 U.S.C. 20111. FRA may, through the Attorney General, also seek injunctive relief to enforce this Order. 49 U.S.C. 20112.

This E.O. is effective upon issuance and railroad carriers subject to this E.O. must immediately initiate steps to implement this E.O. This E.O. remains in effect until the CDC Order is modified or rescinded based on specific public health or other considerations, until the U.S. Secretary of Health and Human Services rescinds the determination under section 319 of the Public Health Service Act (42 U.S.C. 247d) that a public health emergency exists, or until rescinded by FRA, unless FRA extends its terms by subsequent notice published in the Federal Register .

Opportunity for formal review of this E.O. will be provided under 49 U.S.C. 20104(b) and 5 U.S.C. 554. Administrative procedures governing such review are at 49 CFR part 211.

Electronic Access and Filing

A copy of the notice of proposed rulemaking (82 FR 36719, August 7, 2017), all comments received, the final rule, and all background material may be viewed online at http://www.regulations.gov using the docket number listed above. A copy of this document will be placed in the docket. Electronic retrieval help and guidelines are available on the website. It is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded from the Office of the Federal Register's website at http://www.ofr.gov and the Government Publishing Office's website at http://www.gpo.gov.

On January 20, 2021, the Assistant to the President and Chief of Staff issued a memorandum titled, “Regulatory Freeze Pending Review.” The memorandum requested that the heads of executive departments and agencies (agencies) take steps to ensure that the President's appointees or designees have the opportunity to review any new or pending rules. With respect to rules published in the Federal Register , but not yet effective, the memorandum asked that agencies consider postponing the rules' effective dates for 60 days from the date of the memorandum ( i.e., March 21, 2021) for the purpose of reviewing any questions of fact, law, and policy the rules may raise.

In accordance with this direction, FMCSA has decided to delay the effective date of the final rule, “Rulemaking Procedures Update” (RIN 2126-AB96), until March 21, 2021. The final rule amends FMCSA's rulemaking procedures by revising the process for preparing and adopting rules and petitions. Also, the Agency adds new definitions, and makes general administrative corrections throughout its rulemaking procedures. The delay in the rule's effective date will afford the President's appointees or designees an opportunity to review the rule and will allow for consideration of any questions of fact, law, or policy that the rule may raise before it becomes effective.

Under the Administrative Procedure Act (APA) (5 U.S.C. 553), FMCSA generally offer interested parties the opportunity to comment on proposed regulations and publish rules not less than 30 days before their effective dates. However, the APA provides that an agency is not required to conduct notice-and-comment rulemaking or delay effective dates when the agency, for good cause, finds that the requirement is impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 553(b)(B) and (d)(3)). There is good cause to waive both of these requirements here as they are impracticable. A delay in the effective date of the final rule, “Rulemaking Procedures Update,” is necessary for the President's appointees and designees to have adequate time to review the rule before it takes effect, and neither the notice and comment process nor the delayed effective date could be implemented in time to allow for this review.

I. Background

On January 15, 2021, we published a final rule (86 FR 4820) revising critical habitat for the northern spotted owl by excluding additional areas from designation as critical habitat pursuant to the Secretary of the Interior's authority under section 4(b)(2) of the ESA (16 U.S.C. 1531 et seq. ). On January 20, 2021, the White House issued a memorandum instructing Federal agencies to consider postponing the effective date after January 20, 2021, of any rules that have published in the Federal Register but not yet taken effect, for the purpose of reviewing any questions of fact, law, and policy the rules may raise (86 FR 7424; January 28, 2021) (“Regulatory Freeze Memorandum”).

One of our rules, the revised designation of critical habitat for the northern spotted owl, was published in the Federal Register but has not yet taken effect so it is subject to review (86 FR 4820; January 15, 2021). A review of this rule is particularly warranted because of the considerable change between the proposed rule and the final rule. Specifically, on August 11, 2020, the Service proposed a rule to exclude 204,653 acres (82,820 hectares) in 15 counties in Oregon from the species' designated critical habitat (85 FR 4847; August 11, 2020). The final rule excludes approximately 3,472,064 acres (1,405,094 hectares) in 14 counties in Washington, 21 counties in Oregon, and 10 counties in California from the species' designated critical habitat (86 FR 4820; January 15, 2021). The additional areas excluded in the final rule (more than 3.2 million acres) and the rationale for the additional exclusions were not presented to the public for notice and comment. We are considering whether the public had appropriate notice in the proposed rule such that the determinations made in the final rule were a “logical outgrowth” of the proposed rule. We note that several members of Congress expressed concerns regarding the additional exclusions, among other concerns, which they identified in a February 2, 2021, letter to the Inspector General of the Department of the Interior seeking review of the rule.

We have also received at least two notices of intent to sue from interested parties regarding allegations of procedural defects (among other potential defects) with respect to our rulemaking for the final critical habitat exclusions. The Service has been sued each time it has issued a final rule regarding critical habitat for the northern spotted owl. These suits include challenges to the initial designation in 1992 (57 FR 1796; January 15, 1992) (see, e.g., Trinity County Concerned Citizens v. Babbitt, 1993 WL 650393 (D.D.C. 1993)), a revision in 2008 (73 FR 47326; August 13, 2008) (see Carpenters Industrial Council v. Kempthorne, No. 1:08-cv-01409 (D.D.C.)), and the revision in 2012 (77 FR 71876; December 4, 2012) (see Pacific Northwest Regional Council of Carpenters v. Bernhardt, No. 1:13-cv-00361 (D.D.C.)).

In light of the litigation history of northern spotted owl critical habitat designations, the clear intentions from some parties to file suit to challenge the January 15, 2021, Final Rule, and other questions raised, we are reviewing whether the rulemaking was procedurally adequate. In particular, as noted above, we are reviewing whether the Final Rule was a “logical outgrowth” of the proposal and whether the public had fair notice and an opportunity to comment on the expansive change in both location and amount of areas excluded from critical habitat, as well as the rationale for those changes. Extending the effective date of the January 15, 2021, Final Rule while the Service reconsiders it may avoid unnecessary litigation challenging a rule that may change, which could conserve judicial, public, and agency resources.

We are, therefore, delaying the effective date of the final rule we published on January 15, 2021, that revised the designation of critical habitat for the northern spotted owl under the ESA (86 FR 4820), to give us time to consider questions of law, policy, and fact in regard to that final rule. The original effective date of the rule was March 16, 2021; with this document, we are delaying the effective date of the rule until April 30, 2021.

This 45-day delay of the January 15, 2021, Final Rule—based on the good cause articulated below—is for the purpose of reviewing any questions of fact, law, and policy that are raised by that rule as well as the effect of the delay, consistent with the Regulatory Freeze Memorandum and OMB Memorandum M-21-14. During this period, we will continue to gather information to determine whether any further steps should be undertaken, including whether there is a need to postpone the effective date further to give us additional time to reconsider the rule. To that end, we invite the public to submit comment on any issues of fact, law, or policy raised by the January 15, 2021, Final Rule, including, without limitation, the following:

(1) In a January 21, 2021, memorandum (OMB M-21-14) addressing steps agencies should take in response to the Regulatory Freeze Memorandum in reviewing recently finalized rules, OMB requires agencies to consider, among other things, whether the rulemaking process was procedurally adequate, including by taking final action that was a logical outgrowth of the proposal, and whether interested parties had a fair opportunity to present contrary facts and arguments. We, therefore, invite comment on whether you think procedural issues exist in the January 15, 2021, Final Rule rulemaking process and if so, what those issues are and what the Service could do to remedy them.

(2) Whether the Service should extend the effective date of the January 15, 2021, Exclusions Rule beyond April 30, 2021, and, if so, for how long and what, if any, the impacts of that delay would be.

(3) Whether the Secretary's conclusions and analyses in the January 15, 2021, Final Rule were consistent with the law, and whether the Secretary properly exercised his discretion under section 4(b)(2) of the ESA in excluding the areas at issue from critical habitat.

(4) Whether, and with what supporting rationales, the Service should reconsider, amend, rescind, or allow to go into effect the January 15, 2021, Final Rule.

Our implementation of this action extending the effective date of the revisions to the northern spotted owl critical habitat rule from March 16, 2021, until April 30, 2021, without opportunity for public comment, effective immediately upon publication in the Federal Register , is based on the good-cause exception provided in the Administrative Procedure Act (APA). Pursuant to 5 U.S.C. 553(b)(B) and (d)(3), we have determined that good cause exists to forgo the requirements to provide prior notice and an opportunity for public comment on this 45-day delay in the effective date of the January 15, 2021, Final Rule, and to make this action announcing the delay effective immediately. Under the totality of the circumstances presented here, notice and comment would be both impracticable and contrary to the public interest because taking the time to provide for public notice and comment would prevent the Service from performing its functions, create confusion and disruption in the ESA section 7(a)(2) consultation process, and thwart the conservation purposes of the Act.

As noted above, we are reviewing whether the determinations made in the final rule were a “logical outgrowth” of the proposed rule. In addition, there has been substantial litigation in the past on critical habitat designations for this species, and we have already received two notices of intent to sue to challenge the January 15, 2021, Final Rule. Our agency's “due and required” execution of its functions under the ESA would be unavoidably prevented if we allow the effective date to be triggered without the thorough review described above. See S. Doc. No. 248, 79th Cong., 2d Sess. At 200 (1946). That is, if the January 15, 2021, final exclusions from designated critical habitat of more than 3 million acres of northern spotted owl habitat become effective, there is the potential that we will not have met our obligations under the Act to provide required protections for listed species. See Tennessee Valley Authority v. Hill, 437 U.S. 153, 174 (1978) (in enacting the ESA, it is “beyond doubt that Congress intended endangered species to be afforded the highest of priorities”). Specifically, once the exclusions become effective, Federal agencies will no longer be required to consult with the Service under section 7(a)(2) of the ESA to determine if agency actions will result in the destruction or adverse modification of that formerly designated habitat. Federal agencies could thus proceed to undertake (or to authorize others to undertake) activities that would remove that habitat before the Service has the opportunity to reconsider whether those exclusions were appropriate in the first place. Because the habitat is defined by forested stands, particularly of older trees, it cannot be replaced for many decades once removed. Even if the final exclusions rule were to become effective only briefly such that immediate implementation of habitat-removal activities would be unlikely or limited, having areas previously designated be excluded, then reconsidered and potentially included again, would cause confusion and disruption in the section 7(a)(2) consultation process, again impeding the Federal agencies from executing their conservation functions, and also affecting third parties reliant on the Federal agency activities.

Allowing the January 15, 2021, Final Rule to take effect would also undermine the citizen-suit procedures established in the statute. The Act provides that persons alleging a violation must provide 60-day notice of intent to sue (NOI) prior to filing suit. 16 U.S.C. 1540(g)(2)(C). The purpose of the notice requirement is to provide agencies with “an opportunity to review their actions and take corrective measures if warranted.” Alliance for the Wild Rockies v. USDA, 772 F.3d 592, 601 (9th Cir. 2014). As discussed above, we have received NOIs that, among other things, raise a substantial allegation of a notice-and-comment defect in the January 15, 2021, Final Rule. Upon initial review of the NOIs, the Service has concluded that it needs additional time to review the allegations in the NOIs to determine whether they have merit. However, notice and comment on this delay of 45 days would prevent the Service from determining whether “corrective measures” are warranted before expiration of the 60-day period intended for this purpose. We are also considering whether we may need more time for review, and as noted above, therefore seek comment on whether we should further extend the effective date and, if so, how long the further extension should be.

Finally, it is important to recognize that excluding areas from critical habitat is not required by the ESA—the authority to exclude particular areas from designations of critical habitat under the second sentence of section 4(b)(2) of the ESA is in the discretion of the Secretary. (In contrast, other duties relating to critical habitat are mandatory: The duty for the Service to designate critical habitat, 16 U.S.C. 1533(a)(3), and the duty of Federal agencies to ensure that their actions are not likely to result in the destruction or adverse modification of critical habitat, 16 U.S.C. 1536(a)(2).) Therefore, a delay in the effective date of the final rule excluding areas from critical habitat for the northern spotted owl does not delay compliance with a mandate of the Act. Delaying the effective date of the January 15, 2021, Final Rule, which purported to exercise that discretionary authority, simply preserves the status quo while we undertake additional review to ensure compliance with the legal mandates and conservation purposes of the ESA.

In sum, we find that the totality of the circumstances here—the history of litigation and newly threatened suits, the potential for a “logical outgrowth” problem in the final rule, and the threat to the Service's execution of its statutory functions, among other issues—indicate that there is good cause to forgo notice and comment procedures here because it is impractical and contrary to the public interest for the Service to provide notice and an opportunity to comment on an extension of the effective date of March 16, 2021, for the January 15, 2021, Final Rule.

We also find that there is good cause to make this rule effective immediately instead of waiting until 30 days after publication for it to become effective. The APA normally requires this 30-day “grace period” so as to give affected parties time to adjust their behavior before a final rule takes effect. See, e.g., Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992). However, the APA provides an exception to this 30-day grace period for good cause. 5 U.S.C. 553(d). There is good cause to allow this extension of the January 15, 2021, Final Rule's effective date to go into effect immediately because it preserves the status quo, and there is no change to which parties would need time to adjust their behavior. Further, if this rule extending the effective date were itself not to become effective for 30 days, it would mean that the January 15, 2021, Final Rule would go into effect on March 16, 2021. That would create the same issues as discussed in the preceding paragraphs, i.e., prevent the Service from performing its functions, create confusion and disruption in the ESA section 7(a)(2) consultation process, and thwart the conservation purposes of the ESA.

We therefore conclude that we have good cause to issue this final rule, effective immediately, extending the effective date of the January 15, 2021, Final Rule until April 30, 2021.

The White House memorandum also recommends that, for rules postponed for further review, agencies consider opening a 30-day comment period to allow interested parties to provide comments about issues of fact, law, and policy raised by those rules, and consider any requests for reconsideration involving such rules. Consistent with this guidance, this rule provides notice and invites public comments on issues of fact, law, and policy raised by the rule, whether we should further extend the effective date, and, if so, how long the further extension should be. A delay in the effective date and opening of a new 30-day comment period is necessary to ensure that the public has the opportunity to provide, and the Service is able to consider, additional comments to fully inform the Service's decisions in light of current law and policy before the January 15, 2021, Final Rule becomes effective.

You may submit your comments and materials concerning this action by one of the methods listed in ADDRESSES . Comments must be submitted to http://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date specified in DATES . We will not consider mailed comments that are not postmarked by the date specified in DATES . We will post your entire comment—including your personal identifying information—on http://www.regulations.gov. If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. Comments and materials we receive will be available for public inspection on http://www.regulations.gov.

The authorities for this action are 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.

NMFS published the Notice of Availability for Amendment 111 in the Federal Register on July 27, 2020 (85 FR 15367), with public comments invited through September 28, 2020. NMFS published the proposed rule to implement Amendment 111 in the Federal Register on September 4, 2020 (85 FR 55243) with public comments invited through October 5, 2020. The Secretary of Commerce approved Amendment 111 on October 22, 2020 after accounting for information from the public, and determining that Amendment 111 is consistent with the GOA FMP, the Magnuson-Stevens Act, and other applicable laws. The FMP amendment text includes two grammatical errors that were not found prior to the approval. These errors do not materially change the language in the FMP amendment nor are these errors reflected in the regulatory text that this final rule promulgates. The regulatory text accurately reflects the amendment's intent. NMFS received ten comment letters on the proposed Amendment 111 and the proposed rule. A summary of the comments and NMFS' responses are provided under the heading “Comments and Responses” below.

The following background sections describe the Rockfish Program and the need for this final rule.

This section provides a brief overview of the existing Rockfish Program. A detailed description of the Rockfish Program and its development is provided in the preamble to the proposed rule and in Section 1.2 of the Analysis.

The Rockfish Program is a type of limited access privilege program (LAPP) developed to enhance resource conservation and improve economic efficiency in the CGOA rockfish fisheries. The Rockfish Program as implemented under this final rule will continue the LAPP management structure, and will provide the same benefits established under the previous Rockfish Program implemented by Amendment 88 to the GOA FMP (76 FR 81247, December 27, 2011). For more information about the background and history of this program, see the preamble to the proposed rule (85 FR 55243, September 4, 2020) and the Analysis (See ADDRESSES ).

The Rockfish Program (1) assigns quota share (QS) and cooperative quota (CQ) to participants for primary and secondary species, (2) allows a participant holding an LLP license with rockfish QS to form a rockfish cooperative with other persons, (3) allows holders of catcher/processor LLP licenses to opt-out of rockfish cooperatives for a given year, (4) establishes a limited access fishery for participants who do not participate in a fishery cooperative for a given year, (5) includes an entry level longline fishery for persons who do not hold rockfish QS, (6) establishes constraints, commonly known as sideboard limits, for other non-Rockfish Program fisheries that apply to vessels and LLP licenses eligible to participate in the Rockfish Program, and (7) includes monitoring and enforcement provisions.

As summarized in Sections 2 and 3.5 of the Analysis (See ADDRESSES ), the Rockfish Program provided greater security to harvesters through the formation of rockfish cooperatives. Fishing under cooperative management resulted in a slower-paced fishery that allows a harvester to choose when to fish. The Rockfish Program also provided greater stability for processors by spreading out production over a longer period. Overall, the Rockfish Program provides greater benefits to shoreside processors, catcher/processors, CGOA fishermen, and communities than were realized under the previous LLP management scheme.

Under Amendment 88, the current Rockfish Program was given a 10-year life span. The North Pacific Fishery Management Council (Council) recommended this action to prevent the Rockfish Program from expiring on December 31, 2021. This final rule maintains the conservation management, safety, and economic benefits of the Rockfish Program and improves efficiency by making minor revisions to existing regulations to improve administrative provisions of the Rockfish Program.

Unless otherwise noted, the reauthorized Rockfish Program includes all regulatory provisions established under the Rockfish Program implemented by Amendment 88. These provisions include the existing allocation of QS among the fishery participants, the process and requirements to fish in a cooperative, sideboard limitations, and monitoring and reporting requirements. Section 1.7 of the Analysis describes the alternatives considered and Section 1.10.2 provides the rationale for the reauthorized Rockfish Program. The reader is referred to those sections of the Analysis (See ADDRESSES ) for additional details.

Amendment 111 to the GOA FMP and this final rule reauthorize the Rockfish Program and address a variety of administrative and management issues of the Rockfish Program. The specific regulatory changes recommended by the Council and included in this final rule are discussed in Section 1.6.2 of the Analysis (See ADDRESSES ) and include:

• Removing the Rockfish Program sunset date of December 31, 2021, with the effect of allowing the Rockfish Program to continue indefinitely;

• Specifying that only shoreside processors receiving Rockfish Program CQ must submit the Rockfish Ex-vessel Volume and Value Report, rather than catcher/processors;

• Modifying cooperative check-in notice timing into the Rockfish Program from 48 to 24 hours;

• Removing requirements that an annual Rockfish Program cooperative report be submitted to NMFS. The Council requested that the Rockfish Program cooperatives continue to voluntarily provide annual reports to the Council;

• Removing requirements for a fishing plan to be submitted with a cooperative application for CQ;

• Requiring annual NMFS cost recovery reports in regulation;

• Allowing NMFS to reallocate unharvested Pacific cod allocated to Rockfish Program cooperatives to other non-Rockfish Program sectors after the Rockfish Program fisheries close on November 15, consistent with existing inseason management regulatory authorities;

• Allowing NMFS to reallocate unused rockfish incidental catch allowances (ICA) to Rockfish Program cooperatives;

• Clarifying regulations regarding accounting for inseason use caps to specify that any transfer of unused rockfish ICAs or catcher/processor CQ to catcher vessel cooperatives does not apply to catcher vessel ownership, cooperative, harvester CQ, or shoreside processor CQ use caps;

• Exempting vessels from Crab Rationalization Program sideboard limits when fishing in the Rockfish Program;

• Removing catcher/processor rockfish program sideboard limits in the Western GOA rockfish fisheries;

• Removing the requirement for a trawl catcher vessel that has checked into and is participating in the Rockfish Program fishery to stand down for three days when transiting from the BSAI to the GOA while Pacific cod or pollock is open to directed fishing in the BSAI;

• Removing requirements for shoreside processors under the Rockfish Program to provide an observer work station and observer communication requirements; and

• Making minor technical corrections to clarify the season dates for directed fishing for Pacific cod under the Rockfish Program, and updating references to dusky rockfish ( Sebastes variabilis ) throughout regulations in 50 CFR part 679.

The following section describes the regulatory changes in greater detail.

This section describes the changes to current regulations included in this final rule. This final rule will modify regulations at § 679.80(a)(2) to remove the expiration date of the Rockfish Program. The Rockfish Program had a 10-year authorization that required the Council to review the Rockfish Program and make any necessary changes to management based on that review, or allow the Rockfish Program to expire. This action responds to the Council's review.

This final rule modifies Rockfish Program recordkeeping and reporting requirements to: (1) Amend regulations at § 679.5(r)(10)(i) to clearly state that only shoreside processors taking deliveries of species harvested using Rockfish Program CQ must submit the Rockfish Ex-Vessel Volume and Value Report; (2) modify cooperative check-in times from 48 to 24 hours at § 679.5(r)(8)(i)(A)( 1 ); (3) remove the requirement for an annual Rockfish Program cooperative report to be submitted to NMFS at § 679.5(r)(6), and § 679.81(i)(3)(xxv) and (xxvi); (4) remove the requirement for rockfish cooperatives to submit a fishing plan with annual applications for CQ at § 679.81(f)(4)(i)(D)( 3 ); and (5) add a regulation at § 679.85(g) that states NMFS will annually publish a mandatory rather than voluntary Rockfish Program cost recovery report.

Additional detail describing the impact of these recordkeeping and reporting changes is included in the preamble of the proposed rule and in Section 3.7 of the Analysis (See ADDRESSES ).

This final rule adds regulations at § 679.81(j) to authorize NMFS to reallocate unharvested Pacific cod after directed fishing under the Rockfish Program closes on November 15, consistent with existing reallocation procedures for Pacific cod in the Gulf of Alaska. Regulations at § 679.20(a)(12)(ii) allow NMFS to reallocate unused Rockfish Program Pacific cod. Under this provision, and taking into account the capability of a sector to harvest the reallocation, NMFS will allocate unused Rockfish Program Pacific cod first to catcher vessels, then to the combined catcher vessel and catcher/processor pot sector, and then to all other catcher/processor sectors.

This final rule adds regulations at § 679.81(j)(2), that authorize NMFS to reallocate unharvested rockfish species Incidental Catch Allowances (ICAs) to rockfish cooperatives. ICAs are set in the annual harvest specifications to account for incidental catch in other fisheries so that the TAC will not be exceeded. Section 3.7.10 of the Analysis and the preamble of the proposed rule details the process of determining reallocations of ICAs. If NMFS determines there is not sufficient ICA to reallocate, then no reallocation would occur.

This final rule adds regulations at § 679.82(a)(1)(vi) to clarify that any transfer of reallocated Rockfish Program ICAs or catcher/processor CQ to a catcher vessel cooperative does not apply when calculating catcher vessel use caps, including CV ownership, cooperative CQ, harvester QS, or shoreside processor caps. Use caps are established to limit consolidation. (Please see the preamble of the proposed rule and Section 3.7.11 of the Analysis for additional detail on use cap provisions.)

This final rule makes several changes to regulations governing the sideboards and other tools designed to protect other Gulf of Alaska fishery participants outside of the Rockfish Program. Sideboards are limitations on the ability of harvesters to harvest in fisheries other than the CGOA rockfish fisheries. The changes include: (1) Exempting Rockfish Program vessels from sideboard limits implemented under the Crab Rationalization Program at § 680.22(a)(1); (2) removing the Western GOA directed fishing prohibition and rockfish sideboard ratios at § 679.82(e)(4) for Rockfish Program catcher/processors; and (3) as further discussed below, removing the requirement at § 679.23(h)(1) for a trawl catcher vessel checked into and participating in the Rockfish Program fishery to stand down for three days when transiting from the BSAI to the GOA while Pacific cod or pollock is open to directed fishing in the BSAI. In addition, NMFS also adds a clarifying technical revision to the remaining information at § 679.82(e)(4) to remove the table and reorganize the West Yakutat District rockfish sideboard ratios.

For this final rule, NMFS modifies § 679.23(h)(1) to remove the 3-day stand down requirement when a vessel moves from the BSAI to the GOA and is checked-in and participating in a Rockfish Program cooperative. This revision removes a regulatory limitation on vessels moving into the Rockfish Program but does not increase potential harvests in other non-Rockfish Program fisheries. Vessels that are not participating in the Rockfish Program must still comply with the 3-day stand down.

This final rule modifies regulations at § 679.84(f)(1) to remove unnecessary requirements for shoreside processors to maintain an observer workstation and communications equipment. These requirements were originally implemented under the Rockfish Pilot Program, which required that fisheries observers be stationed at shoreside processors participating in the Rockfish Pilot Program. Observer requirements for shoreside processors were removed with the implementation of the Rockfish Program in 2012, making these equipment requirements no longer necessary.

This final rule includes two additional technical corrections to regulations that clarify the season dates for directed fishing for Pacific cod under the Rockfish Program and updates references to dusky rockfish throughout the regulations. This final rule clarifies the season dates for directed fishing for Pacific cod with trawl gear at § 679.23(d)(3)(ii) by cross-referencing the Rockfish Program season dates in § 679.84(g). Current Rockfish Program regulations at § 679.80(a)(3)(ii) specify that fishing by vessels participating in a Rockfish Program cooperative is authorized from 1200 hours, A.l.t., May 1 through 1200 hours, A.l.t., November 15. To clarify this, NMFS modifies regulations at § 679.23(d)(3)(ii) in this final rule to reference the specific season dates authorized under the Rockfish Program.

This final rule changes references to “pelagic shelf” rockfish to “dusky” rockfish throughout regulations in 50 CFR part 679 to update regulations consistent with changes that have occurred to species categories since 2012 and the implementation of the Rockfish Program. Revising the references from pelagic shelf rockfish to dusky rockfish within the regulations and FMP is consistent with existing protocols for the annual stock assessment and harvest specifications of dusky rockfish.

This final rule clarifies at § 679.82(e)(9)(iii) that a rockfish cooperative may not exceed any deep-water or shallow-water halibut PSC sideboard limit assigned to that cooperative. This clarification was meant to be included with the Rockfish Program implemented by Amendment 88 to the GOA FMP (76 FR 81247, December 27, 2011). If a cooperative uses halibut PSC fishing for rockfish in the WGOA or the West Yakutat District, any halibut PSC used will be debited from the deep-water complex halibut PSC limit assigned to that cooperative. Once a cooperative reaches its deep-water halibut PSC sideboard limit, it will be able to continue to fish for rockfish in the Western GOA or West Yakutat District. This is further explained in the response to comment 3 in the “Comments and Responses” section below as well as in the “Changes from Proposed to Final Rule” section below.

NMFS received 10 comment letters on the NOA for Amendment 111 and the proposed rule. NMFS has summarized and responded to 18 unique comments below. One of the comment letters received was outside the scope of the proposed rule. The comments were from individuals, environmental groups, and Rockfish Program cooperative participants.

Comment 1: Several commenters expressed general support for the reauthorization of the Rockfish Program without a sunset date. Commenters support the reauthorization of the Rockfish Program and the benefits the Program has created for historical harvesters, processors and the community of Kodiak.

Response: NMFS acknowledges this comment.

Comment 2: One commenter expressed support for the modification to § 679.82(e)(4), which removes the definition of sideboard ratios for Rockfish Program catcher/processors in the WGOA. However, the commenter does not support the proposed change to § 679.82(e)(2) that would remove the reference to the WGOA in this paragraph. This modification to § 679.82(e)(2) would lift the existing prohibition on directed rockfish fishing in the WGOA for non-Amendment 80 catcher/processors, which was not considered nor recommended by the Council.

Response: NMFS acknowledges the respondent's support for the change to sideboard ratios for the Western GOA at § 679.82(e)(4). NMFS agrees that the proposed rule incorrectly proposed to modify regulations at § 679.82(e)(2) by removing the words “Western GOA” in this paragraph. This error has been corrected in this final rule.

Comment 3: A commenter requested that NMFS further clarify regulations implementing Amendment 88 to the GOA FMP (76 FR 81248, December 27, 2011). In the response to comment 31 in the final rule implementing Amendment 88 to the GOA FMP, NMFS responded to three questions related to the application of the deep-water halibut complex halibut PSC sideboard. NMFS stated in the final rule that if a cooperative uses halibut PSC fishing for rockfish in the Western GOA or the West Yakutat District, any halibut PSC used will be debited from the deep-water complex halibut PSC limit assigned to that cooperative. Once a cooperative reaches its deep-water halibut PSC sideboard limit, it will be able to continue to fish for rockfish in the Western GOA or West Yakutat District. However, reaching the deep-water halibut PSC limit would not prohibit the harvester from fishing for rockfish in the Western GOA or West Yakutat region. Any halibut PSC used for fishing rockfish would be debited from the deep-water complex halibut PSC limit assigned to that cooperative. In the final rule implementing Amendment 88 to the GOA FMP, NMFS clarified this by modifying regulations at § 679.7(n)(6)(iv) however, the commenter requested that NMFS update regulations at § 679.82(e)(9)(iii) to further clarify this point in this rule as intended in the final rule implementing Amendment 88 to the GOA FMP.

Response: NMFS agrees that this clarification is needed and this change is included in this final rule. As further explained in the “Changes from Proposed to Final Rule” section of this final rule, NMFS adds a clarification at § 679.82(e)(9)(iii) that was meant to be added in at the implementation of the Rockfish Program through Amendment 88 to the GOA FMP. Once a halibut PSC limit is reached by a rockfish cooperative, that cooperative is prohibited from directed fishing in the shallow-water or deep-water flatfish complex depending on which PSC halibut sideboard had been reached in in the Western GOA or the West Yakutat District.

Comment 4: A commenter disagreed with the proposed changes to remove observer coverage requirements and observer workstations under the Rockfish Program because data collected by observers is necessary to investigate corruption in this fishery.

Response: NMFS acknowledges the commenter's support for observer data collected in the Rockfish Program fisheries. However, NMFS disagrees that the requirement for a shoreside processor to provide an observer workstation and communication equipment should not be removed. This final rule maintains existing observer coverage requirements for all participants for the purpose of monitoring the Rockfish Program fisheries as implemented under Amendment 88 to the GOA FMP (76 FR 81248, December 27, 2011). However, as part of that 2011 action, observer coverage requirements for shoreside processors were removed but the observer workstation and communication equipment requirements inadvertently remained in place. Without a requirement for observer coverage at shoreside processors under the Rockfish Program the observer workstation and communications equipment are not necessary and therefore these requirements are removed from regulation in this final rule. These changes are further described in the preamble to the proposed rule and Section 3.7.9 of the Analysis (See ADDRESSES ).

Comment 5: A commenter stated that there is no such thing as “unused” fish and asserts that NMFS should not be authorized to reallocate any unused fish or Pacific cod under this Program.

Response: NMFS disagrees. Each year, after consultation with the Council, NMFS publishes the final harvest specifications, to specify the total allowable catch (TAC) for each target groundfish species and apportionments thereof, Pacific halibut prohibited species catch (PSC) limits, and seasonal allowances of pollock and Pacific cod. “Unused” fish in this context means unharvested and refers to the amount of catch for a particular species has been specified for harvest up to the TAC or apportionment of the TAC but has not yet been fully harvested in the specified time period. Under the GOA FMP and its implementing regulations, NMFS has existing authority to reallocate unharvested species. This final rule authorizes NMFS to reallocate Pacific cod and rockfish ICA's that would otherwise remain unharvested without reallocation. These changes will contribute to achieving optimum yield under National Standard 1 and potentially reduce mandatory discards of these species in other fisheries. Additional information is included in the preamble to the proposed rule and Sections 1.9.2, 3.7.2, and 3.7.10 in the Analysis (See ADDRESSES ).

Comment 6: A commenter stated that proposed changes to regulations implementing the Rockfish Program, including changes to recordkeeping and reporting requirements, appear to increase unsustainable overharvesting of the fisheries.

Response: NMFS disagrees. Changes to recordkeeping and reporting requirements are summarized in the classification section of this final rule and do not modify provisions of the Rockfish Program that would affect NMFS' ability to monitor fishery harvests under the Rockfish Program. These recordkeeping and reporting changes clarify existing provisions of the program and remove unnecessary reporting requirements. These changes are described in more detail in Section 3.7 of the Analysis (See ADDRESSES ).

Comment 7: We support the proposed revisions to remove unnecessary reporting requirements. Removing the requirements to submit a fishing plan and to submit a cooperative report to NMFS will save industry unnecessary time as neither report is used in actively managing the fishery. Although the Cooperative Manager will still give a voluntary cooperative report/presentation to the Council once per year to inform the Council and the public on the program's and cooperative's performance, we estimate the time saved will be up to 25 hours per year. We also support reducing the submission time for a cooperative check-in report from at least 48 hours to at least 24 hours before the vessel begins a fishing trip to help improve fishing efficiency.

Response: NMFS acknowledges this comment.

Comment 8: Two commenters suggest that NMFS should not use information submitted by commercial fishermen for fisheries management. The commenters suggested that the changes to reporting and recordkeeping requirements proposed by this action are inconsistent with the MSA and are likely to decrease the robustness of science-based components of the program and lead to increased accidental or intentional overfishing.

Response: NMFS acknowledges this comment. This final rule makes minor administrative changes to the Rockfish Program, none of which modify the types of information that NMFS relies on to make fishery management decisions. The Magnuson-Stevens Act and the GOA FMP require, among other things, that fishery management decisions be based on the best scientific information available. This final rule does not change the data sources used to monitor the harvest of species allocated under the Rockfish Program.

Comment 9: NMFS received several comment letters addressing issues outside the scope of this action. Commenters did not support this action because of the effects of fishing on natural resources, including marine mammals, and suggested that NMFS cut all commercial fishing quota by 50 percent, ban trawling in the Gulf of Alaska, and stop fishing for Pacific cod entirely.

Response: These comments address management issues that are beyond the scope of Amendment 111 and this regulatory action. This final rule does not change the process of allocating quota or establishing TACs or sideboard limits under the Rockfish Programs, nor does this final rule change specific management measures that govern the harvest of allocated species under the Rockfish Program, such as fishing location, timing, effort, or authorized gear types. This final rule removes the sunset date and makes minor changes to the regulations implementing the Rockfish Program. The Magnuson-Stevens Act and the GOA FMP require, among other things, that the Council and NMFS manage fisheries to prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery and base management decisions on the best scientific information available. The commenter provided no information to support cutting commercial fishing quota by 50 percent off Alaska. Currently, commercial groundfish fisheries off Alaska are being responsibly managed with conservative harvest strategies and provide important economic benefits to Alaskan communities. Additionally, in Section 2 of the Analysis prepared for this action, NMFS considered impacts on endangered and threatened species and marine mammals (See ADDRESSES ).

Comment 10: One commenter questioned how the quality of goods would be affected by the slower fishing times and if the industry will have to deal with quality control declines as production slows, including training procedures for this scenario.

Response: Sections 3.5.7 and 3.5.8 in the Analysis describes rockfish products, markets, and associated wholesale market values (See ADDRESSES ). Section 4.1 of the Analysis goes into detail on how each National Standard is met (See ADDRESSES ). The Rockfish Program establishes CQ allocations that allow stakeholders and groups of stakeholders to more efficiently utilize the CGOA resource relative to the limited access management that would go into place with no action. Efficiency is enhanced by allowing CQ holders to scale effort spatially and temporally to reduce costs and increase value.

In addition, there is a downward trend for rockfish products; however, it is attributed to currency valuation and rising secondary processing costs, not slower fishing time. At this time, NMFS is not aware of reduced quality control under the Rockfish Program, either at this present time or at implementation of the Pilot Program, when the LAPP was established. As such, NMFS does not provide training procedures that address quality control in an established LAPP.

Comment 11: One commenter questioned if this rule supports the common (or great) good and if this rule is against the rights of other businesses fishing in the area for their own productivity.

Response: In recommending Amendment 111, the Council considered the 10 National Standards as contained in the Magnuson-Stevens Act. The National Standards are principles with which fishery management plans and their implementing regulations must be consistent, thereby ensuring sustainable and responsible fishery management. Section 4.1 of the Analysis goes into detail on how each National Standard is met (See ADDRESSES ). This final rule promotes National Standards 5 and 6, specifically, in terms of community and economic considerations. This final rule maintains existing fish harvesting efficiencies under the Rockfish Program and modifies specific administrative provisions to improve operational efficiency of the Rockfish Program. The Rockfish Program takes into account the unique nature of the CGOA rockfish fishery in terms of its timing during the fishing year and value to the community of Kodiak. The Rockfish Program allows the fishery to be prosecuted during a longer period of time and avoid conflicts with the salmon fisheries that take place during July.

Comment 12: In the preamble of the proposed rule, NMFS omitted mention of thornyhead rockfish ( Sebastolobus alaskanus ), which is a secondary species for both catcher vessel and catcher processor cooperatives.

Response: NMFS acknowledges the error in the preamble of the proposed rule. The secondary species rationalized under the Rockfish Program include Pacific cod, rougheye rockfish, shortraker rockfish, sablefish, and thornyhead rockfish. The regulatory text correctly specifies Rockfish Program secondary species. In Section 2.2 of the Analysis, thornyhead rockfish are discussed in detail as a secondary species (See ADDRESSES ).

Comment 13: The proposed regulation will undermine both the environmental and economic protections Congress intended with the MSA by increasing the TACs while simultaneously removing the sensible reporting and monitoring of this commercial activity. The past disasters, both for rockfish and for the people who depend on them for their livelihood, show a clear need for sensible common sense restrictions on fishing and continued reporting mandates.

Response: One of the goals of the Rockfish Program is to enhance resource conservation in the CGOA rockfish fisheries. The Rockfish Program, as implemented by this rule and Amendment 111 to the GOA FMP, continues the cooperative management structure that provides the fleet with tools to minimize bycatch to the extent practicable, reduce discards and improve utilization of groundfish species.

Overfishing Limits (OFLs) and TACs are set each year with conservation in mind. The Rockfish Program's primary and secondary species are not subject to overfishing and are not overfished; TACs are set in a precautionary manner. The current harvest specifications process and authorities for in-season management prevent overfishing and provide for the Rockfish Program to achieve optimum yield on a continuing basis. As described in the proposed rule and Section 2.2 of the Analysis, and this final rule, harvest of Rockfish Program quota will continue to be established by the Council and NMFS through the annual harvest specifications (85 FR 13802, March 10, 2020) (See ADDRESSES ). Amendment 111 and this final rule do not substantively change conservation and management of the species managed under the CGOA Rockfish Program.

As described in the response to comment 8, this final rule makes minor administrative changes to the Rockfish Program, none of which modify the types of information that NMFS relies on to make fishery management decisions. This final rule does not change the data sources used to monitor the harvest of species allocated under the Rockfish Program.

Comment 14: The MSA states that any conservation efforts in the area must take into account any potential effects it could have on surrounding fishing communities. Fishing communities are defined as “a social or economic group whose members reside in a specific location and share a common dependency on commercial, recreational, or subsistence fishing.” This would include many of the region's indigenous communities. Amendment 111 has not demonstrated sufficient concern towards the cultural and health impacts it will have on Alaska Native communities.

Putting the area's rockfish population at risk of overharvesting would have direct negative impacts on Alaska Native communities who have long depended on rockfish for nutritional and cultural needs. Lack of precautions to assure sustainable catch of rockfish populations could have negative impacts on food insecurity. The ambition of industry should not curtail the cultural and subsistence use of wild fish stocks by Native Alaskans. We request that the agency review and weigh the impact that this rulemaking will have on Native Alaskan communities.

Response: As explained in the response to comment 12, Amendment 111 and this final rule do not substantively change conservation and management of the species managed in the CGOA Rockfish Program. Section 2.2 of the Analysis and the response to comment 12 describe how the GOA rockfish population is not at risk of being overfished or subjected to overfishing (See ADDRESSES ).

This final rule and Amendment 111 are consistent with National Standard 8 and maintain the existing management structure of the Rockfish Program. As described in Section 3.5.6 of the Analysis and the Social Impact Assessment, no issues were identified for this final rule that would put the sustained participation of any fishing communities, including Alaska Native communities, at risk. Implementing this final rule would not change the community protection measures built into the Rockfish Program and previously found to be functioning as intended. The Rockfish Program is likely to have continued beneficial impacts on fishing communities. Patterns of community participation in the CGOA rockfish fisheries are unlikely to change with implementation of the final rule. Among communities substantially engaged in and/or substantially dependent on the CGOA rockfish fisheries managed under the Rockfish Program, Kodiak is the most centrally engaged in and dependent on the fishery as measured by multiple indices across multiple sectors of the fishery. Kodiak has experienced beneficial impacts across harvester, processor, and support services sectors because of the implementation of the Rockfish Program, relative to the pre-Rockfish Pilot Program conditions, and has specifically benefitted from several community protection measures built into the program. Although not all individual operations have benefitted equally from the change in qualifying years between the Rockfish Pilot Program and the Rockfish Program, no substantial adverse sector-level or community-level impacts resulting from the implementation of the Rockfish Program have been identified for the community of Kodiak.

Comment 15: It is indicated within the EA that climate change is a reasonably foreseeable future action that may have an impact on primary and secondary species located within the action area. Given this explicit understanding of the looming detrimental impacts of climate change, even if the drastic increase in harvesting does not single handedly reduce the viability of the fish population, there is minimal room for natural phenomena to take place in combination with the harvesting increase while maintaining a viable fish stock that can support the industry. To ignore the risks of climate change and resulting El Niño events on the rockfish population coupled with increasing harvest, and its potential to decimate this rockfish population as seen in the West Coast, suggest that the proposed rule should fully consider the risk of climate change and take more restrictive conservational measures.

Response: Section 2.2.3 of the EA states that climate change is the only reasonably foreseeable future action (RFFA) identified as likely to have an impact on primary and secondary target species allocated within the action area and timeframe, the EA concludes that “considering the direct and indirect impacts of the proposed action when added to the impacts of past and present actions, previously analyzed in other documents incorporated by reference, and the impacts of the RFFAs listed above, the cumulative impacts of the proposed action are determined to be insignificant.” Effects of the action and RFFAs on the target species are considered insignificant, because they are not expected to jeopardize the capacity of the stock to yield sustainable biomass on a continuing basis and are unlikely to affect the distribution of harvested stocks either spatially or temporally such that it has an effect on the ability of the stock to sustain itself.

Although the net effect of climate change on fish resources is currently difficult to predict with accuracy, NMFS and the Council use the Ecosystem Status Reports (ESR) to track the status and trends of ecosystem components through a variety of indicators that are synthesized through a blend of data analysis and modeling to produce ecosystem assessments. The ESR may thus provide early warning signals of direct ecosystem impacts that may affect fish resources, including rockfish species that could warrant management intervention or evidence of the efficacy of previous management actions, as well as track performance in meeting the stated ecosystem-based management goals of the Council.

NMFS reviews the RFFAs, including climate change, as described in the Harvest Specifications Environmental Impact Statement (EIS) each year to determine whether they occurred and, if they did occur, whether they would change the analysis in the Harvest Specifications EIS of the impacts of the harvest strategy on the human environment (See ADDRESSES ). In addition, NMFS considers each year whether other actions not anticipated in the Harvest Specifications EIS occurred that would have a bearing on the harvest strategy or its impacts. Each year stock assessment authors review the previous year's ESR for factors that may impact stock/complex biomass and summarize those for the Plan Teams' review. Indicators of concern can be highlighted within each stock assessment and can be used by the Groundfish Plan Teams and the Council to justify modification of allowable biological catch (ABC) recommendations or time/space allocations of catch. NMFS anticipates that current monitoring of groundfish trends and environmental conditions through selected key indicators, reporting in the annual ESRs, and incorporation of this information into the annual stock assessments and the harvest specification process is currently sufficient to alert the Council and NMFS managers to changes to rockfish population trends and conditions.

Comment 16: A commenter identified a couple changes to the supporting statement for the Rockfish Program collection of information (OMB Control Number 0648-0545). First, the commenter disagreed with the statement that “the cooperative must form an association with the processor to which it historically delivered the most rockfish. The cooperative/processor associations are intended to ensure that a cooperative lands a substantial portion of its catch with its members' historic processor.” This was the case during the Rockfish Pilot Program. However, with the current Rockfish Program a cooperative must form an association with a processor within the city limits of Kodiak but that processor need not be the member's “historic” processor. Second, the supporting statement notes that the Rockfish Program Vessel Check-In/Check-Out and Termination of Fishing Report and Application for Rockfish Cooperative Fishing Quota (CQ) may be submitted to NMFS more often than quarterly. The commenter thinks the Agency meant that the Application for Inter-Cooperative Transfer of Rockfish Cooperative Quota and the Rockfish Program Vessel Check-In/Check-Out reports may be submitted more often than quarterly (these transfers and check ins/outs occur many times over the season). The Application for Rockfish Cooperative Fishing Quota is submitted only once per year and any Termination of Fishing Report would be submitted only once per year.

Response: NMFS agrees with these changes, and they are reflected in the supporting statement for OMB Control Number 0648-0545 associated with this final rule.

Comment 17: A commenter was heartened to read that NMFS Alaska Region is currently working on offering submission of the Application for Rockfish Cooperative Fishing Quota application online through eFISH. The use of eFISH for vessel check-in and check-outs and CQ transfers greatly reduced the time and paperwork burden for the cooperatives so they look forward to being able to submit the annual cooperative applications online through eFISH.

Response: NMFS acknowledges this comment.

Comment 18: Note that the fishery management council in Alaska is the North Pacific Fishery Management Council (NPFMC), not “Alaska Council.” Note that the program is titled, “Central Gulf of Alaska Rockfish Program,” not “Alaska Rockfish Program.”

Response: In response to this comment, the title of the information collection for OMB Control Number 0648-0678 has been changed from Alaska Council Cooperative Annual Reports to North Pacific Fishery Management Council Cooperative Annual Reports to reflect the correct name of the regional fishery management council. The title of the information collection for OMB Control Number 0648-0545 has been changed from Alaska Rockfish Program: Permits and Reports to Central Gulf of Alaska Rockfish Program: Permits and Reports to refer to the correct name of the program.

There were two changes from the proposed to the final rule to correct an error in the proposed rule for this action and to correct an error included in the final rule implementing Amendment 88 to the GOA FMP (76 FR 81248, December 27, 2011).

The proposed rule inadvertently proposed to remove the words “Western Gulf of Alaska” in regulations at § 679.82(e)(2). Based on public comment 2 above, the final rule does not remove the words “Western Gulf of Alaska” at § 679.82(e)(2). The proposed change to paragraph § 679.82(e)(2) would have removed Western Gulf of Alaska sideboard limits applicable to vessels operating in fisheries outside the Rockfish Program. This proposed change to paragraph (e)(2) would have removed the Western Gulf of Alaska directed fishing prohibition applicable to vessels operating in fisheries outside the Rockfish Program. This is outside the scope of the action recommended by the Council and therefore this previously proposed change is not included in this final rule.

The second change from proposed to final rule corrects an inadvertent omission in the final rule implementing Amendment 88 to the GOA FMP (76 FR 81248, December 27, 2011). Comment 3 in this final rule provides support for this change. As originally described by NMFS in the response to comment 31 (76 FR 81248, December 27, 2011), this change clarifies that catcher/processors are limited from expanding their harvests of deep-water flatfish beyond an amount that could be supported by the proportion of the halibut PSC historically used by a cooperative. NMFS adds a clarification at § 679.82(e)(9)(iii) that was meant to be added in at the implementation of the Rockfish Program through Amendment 88 to the GOA FMP (76 FR 81247, December 27, 2011). A rockfish cooperative may not exceed any deep-water or shallow-water halibut PSC sideboard limit assigned to that cooperative. If a cooperative uses halibut PSC while fishing for rockfish in the WGOA or the West Yakutat District, any halibut PSC used will be debited from the deep-water complex halibut PSC sideboard limit assigned to that cooperative. Once a cooperative reaches its deep-water halibut PSC sideboard limit, it could continue to fish for rockfish in the Western GOA or West Yakutat District because the Council intended to limit the ability of cooperatives to expand their harvests of deep-water flatfish with the halibut PSC sideboard limit beyond an amount that could be supported by the proportion of the halibut PSC historically used by a cooperative during 2000 through 2006. The Council did not intend to limit the rockfish fisheries, which were fully harvested during this period. NMFS is clarifying that once the deep-water halibut PSC sideboard limit it reached, cooperatives may not continue to fish for deep-water species, except rockfish that are open for directed fishing, in the Western GOA or West Yakutat District and this is in response to a comment received at the final rule stage. Any halibut PSC that continues to accrue in the rockfish fishery by the cooperative in the WGOA and West Yakutat District will continue to accrue to the overall deep-water species fishery halibut PSC limit for the GOA.

Pursuant to sections 304(b)(1)(A) and 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that Amendment 111 to the GOA FMP and this final rule are necessary for the conservation and management of the CGOA Rockfish Program and are consistent with the GOA FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

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

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a final regulatory flexibility analysis (FRFA), the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. The preambles to the proposed rule and this final rule include a detailed description of the actions necessary to comply with this rule and as part of this rulemaking process. NMFS has published on its website a summary of compliance requirements that serves as the small entity compliance guide for the Rockfish Program: https://www.fisheries.noaa.gov/resource/document/central-gulf-alaska-rockfish-program-informational-guide. This rule does not require any additional compliance from small entities that is not described in the preambles. Copies of this final rule are available from NMFS at the following website: https://www.fisheries.noaa.gov/region/alaska.

This FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, NMFS' responses to those comments, and a summary of the analyses completed to support the final rule.

Section 604 of the Regulatory Flexibility Act (RFA) requires that, when an agency promulgates a final rule under section 553 of Title 5 of the U.S. Code (5 U.S.C. 553), after being required by that section or any other law to publish a general notice of final rulemaking, the agency shall prepare a FRFA (5 U.S.C. 604). Section 604 describes the required contents of a FRFA: (1) A statement of the need for and objectives of the rule; (2) a statement of the significant issues raised by the public comments in response to the IRFA, a statement of the assessment of the agency of such issues, and a statement of any changes made to the proposed rule as a result of such comments; (3) the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments; (4) a description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available; (5) a description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and (6) a description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes including a statement of the factual, policy, and legal reasons for selecting the alternative adopted and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

A description of this final rule and the need for and objectives of this rule are contained in the preamble to the proposed rule (85 FR 55243, September 4, 2020) and final rule and are not repeated here.

An IRFA was prepared in the Classification section of the preamble to the proposed rule. The Chief Counsel for Advocacy of the SBA did not file any comments on the proposed rule. NMFS received no comments specifically on the IRFA.

This final rule will directly regulate the owners and operators of catcher vessels, catcher/processor vessels, and shoreside processors eligible to participate in the CGOA Rockfish Program. In 2019 (the most recent year of complete data), 54 vessel owners participated in the Rockfish Program, 19 of which are considered small entities based on the $11 million threshold. No catcher/processor vessels are classified as small entities because their combined gross income through affiliation with the Amendment 80 cooperative exceeds the $11 million first wholesale value threshold. In 2018 and 2019, six shore-based cooperatives were associated with a unique shoreside processor under the Rockfish Program. Reliable information is not available on ownership affiliations among individual processing operations or employment for the fish processors directly regulated by this final rule. Therefore, NMFS assumes that all of the processors directly regulated by this final rule could be small. Additional detail is included in Sections 3.5.5 and 3.9 in the Analysis prepared for this final rule (see ADDRESSES ).

In addition to the main program, this final rule also maintains the “entry level” fishery for the longline sector. Since participation in that fishery is voluntary, the number of small entities participating in future years cannot be reliably predicted. From 2012 to 2019, an average of 4 vessels targeted CGOA rockfish in the entry level longline sector. Participation in this fishery has typically included vessels using jig gear and are considered small entities. Therefore, it is likely that a substantial portion of the entry level longline fishery participants will be small entities.

This final rule will modify recordkeeping and reporting requirements under the Rockfish Program to (1) clarify that only shoreside processors receiving Rockfish Program CQ must submit the Rockfish Ex-vessel Volume and Value Report; (2) modify cooperative check-in times from 48 to 24 hours; (3) remove the requirement for an annual Rockfish Program cooperative report to be submitted to NMFS; (4) remove the requirement for rockfish cooperatives to submit a fishing plan with its annual application for cooperative quota; and (5) require NMFS to annually publish a Rockfish Program cost recovery report. These recordkeeping and reporting changes will clarify existing provisions of the program and remove unnecessary reporting requirements, slightly reducing the reporting burden for all directly regulated entities including small entities. The impacts of these changes are described in more detail in Section 3.7 of the Analysis prepared for this final rule (See ADDRESSES ).

The final rule builds upon the Rockfish Pilot Program and the previously implemented Rockfish Program. The Rockfish Pilot Program was originally enacted through congressional direction to address economic inefficiencies in the fishery that primarily affected small entities. In recommending this final rule, the Council considered two alternatives, as it evaluated the potential for the continued rationalization of the CGOA rockfish fisheries. The two alternatives are the “no action” alternative (Alternative 1) that allows the Rockfish Program to expire on December 31, 2021 and an action alternative (Alternative 2) reauthorizing the Rockfish Program with numerous alternative elements to address a suite of potential management revisions. The Council considered alternatives that would modify the duration of the Rockfish Program: (1) Remove the sunset date, or (2) implement a new sunset date of 10 to 20 years; and select from numerous alternative elements to revise administrative provisions of the Rockfish Program. The Council selected Alternative 2 with the suite of elements included in this final rule to remove the sunset date and modify specific provisions of the Rockfish Program.

Based upon the best available scientific data, and in consideration of the Council's objectives of this action, it appears that there are no significant alternatives to the final rule that have the potential to accomplish the stated objectives of the Magnuson-Stevens Act and any other applicable statutes and that have the potential to minimize any significant adverse economic impact of the proposed rule on small entities. After public process, the Council concluded that the proposed Rockfish Program will best accomplish the stated objectives articulated in the preamble for this final rule, and in applicable statutes, and will minimize to the extent practicable adverse economic impacts on the universe of directly regulated small entities.

NMFS has not identified any duplication, overlap, or conflict between this final rule and existing Federal rules.

This final rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This rule changes the existing requirements for two collections of information—OMB Control Numbers 0648-0678 (Alaska Council Cooperative Annual Reports) and 0648-0545 (Alaska Rockfish Program: Permits and Reports)—and requests extension of OMB Control Number 0648-0545.

This rule revises the information collection requirements contained in OMB Control Number 0648-0678 to remove the requirement for an annual Rockfish Program cooperative report to be submitted to NMFS. This requirement is unnecessary, and removing it decreases the respondents' reporting costs. Another revision, which is not connected to this final rule, removes the AFA Catcher Vessel Intercooperative Agreement as a separate component of this collection because this is already included as an appendix to the AFA Annual Catcher Vessel Intercooperative Report, which is approved under OMB Control Number 0648-0678. The public reporting burden is estimated to average per individual response 40 hours for the AFA Annual Catcher Vessel Intercooperative Report and 25 to 40 hours for the annual Rockfish Program cooperative report submitted to the Council. The burden hours reported in the proposed rule were erroneously reported in minutes instead of hours. This final rule includes the accurate estimate of burden hours. The estimated burden hours for the submission of cooperative reports to NMFS reduces the overall burden hour estimate for this collection by 45 hours.

This final rule revise the information collection requirements contained in OMB Control Number 0648-0545, and NMFS has requested an extension of this collection for three years. This collection contains three applications and reports used by Rockfish Program cooperatives to apply for cooperative fishing permits, transfer cooperative quota, and manage cooperative fishing activity. This collection is necessary for NMFS to effectively administer and monitor compliance with the management provisions of the Rockfish Program.

This rule removes the requirement for a rockfish cooperative to submit a fishing plan with its Application for Rockfish Cooperative Fishing Quota. No change is made to the estimated reporting burden or costs for this application as the estimate allows for differences in the time needed to complete and submit the application. This rule also reduces the time for a Rockfish Program catcher vessel to submit a cooperative check-in report from 48 hours to 24 hours before the start of a fishing trip. This does not change the estimated reporting burden or costs for this report. These changes are necessary to remove unnecessary reporting requirements.

The respondents are the seven Rockfish Program cooperatives; the estimated total annual burden hours are 35 hours; and the estimated total annual cost to the public for recordkeeping and reporting costs is $35.

Public reporting burden per individual response is estimated to average 2 hours for the Application for Rockfish Cooperative Fishing Quota; 10 minutes for the Application for Inter-Cooperative Transfer of Rockfish Cooperative Quota; and 10 minutes for the Rockfish Program Vessel Check-In/Check-Out and Termination of Fishing Report.

The public reporting burden includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

We invite the general public and other Federal agencies to comment on proposed and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Written comments and recommendations for this information collection should be submitted on the following website: www.reginfo.gov/public/do/PRAMain. Find these particular information collections by using the search function and entering either the title of the collection or the OMB Control Number (0648-0678 or 0648-0545).

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to penalty for failure to comply with, a collection of information subject to the requirement of the PRA, unless that collection of information displays a currently valid OMB control number.

For the reasons set out in the preamble, 50 CFR parts 679 and 680 are amended as follows: