FCIC serves America's agricultural producers through effective, market-based risk management tools to strengthen the economic stability of agricultural producers and rural communities. The Risk Management Agency (RMA) administers the FCIC regulations. FCIC is committed to increasing the availability and effectiveness of Federal crop insurance as a risk management tool. Approved Insurance Providers (AIPs) sell and service Federal crop insurance policies in every state through a public-private partnership. FCIC reinsures the AIPs who share the risk associated with catastrophic losses due to major weather events. FCIC's vision is to secure the future of agriculture by providing world class risk management tools to rural America.

Federal crop insurance policies typically consist of the Basic Provisions, the Crop Provisions, the Special Provisions, the Commodity Exchange Price Provisions, if applicable, other applicable Endorsements or options, the actuarial documents for the insured agricultural commodity, the Catastrophic Risk Protection Endorsement, if applicable, and the applicable regulations published in 7 CFR chapter IV.

FCIC amends the Northern Potato Crop Insurance—Quality Endorsement; Northern Potato Crop Insurance—Processing Quality Endorsement; Potato Crop Insurance—Certified Seed Endorsement; and Northern Potato Crop Insurance—Storage Coverage Endorsement. The changes to the policy made in this rule are applicable for the 2022 and succeeding crop years for crops with a contract change date on or after April 30, 2021.

The changes to the Northern Potato Crop Insurance—Quality Endorsement (7 CFR part 457.143) are:

• Revising section 2 to specify that the premium is only applicable for planted acreage under this Endorsement by stating that the additional premium amount for this coverage will be determined by multiplying the number of your insured planted acres of potatoes by the premium rate for this Endorsement contained in the actuarial documents. As a result of this change, premium will no longer be charged on acres prevented from planting.

• Revising section 2, 4, and 5 to correct the reference to the title within the Federal Register of the Northern Potato Crop Insurance Provisions. FCIC is also revising sections 5 and 6 to correct the reference to the title within the Federal Register of the Northern Potato Crop Insurance—Storage Coverage Endorsement.

• Revising section 5(a)(1)(i) and 5(a)(2)(i)(A) to replace “Special Provisions or addendum thereto” with “actuarial documents” to more accurately refer to the location where price elections are published ( i.e., prices tab of the actuarial documents). Furthermore, FCIC no longer issues price addendums.

• Revising section 10(b) to change the reference location for fresh and processing types specified in the “actuarial documents” to “Special Provisions” to be consistent with the references made in the other Potato Endorsements. The fresh and processing types are specified in both the actuarial documents and Special Provisions; however, other Endorsements refer to the Special Provisions because it is provided to the policyholder in addition to its publication on the RMA website.

The changes to the Northern Potato Crop Insurance—Processing Quality Endorsement (7 CFR part 457.144) are:

• Revising section 3 to specify that the premium is only applicable for planted acreage under this Endorsement by stating that the additional premium amount for this coverage will be determined by multiplying the number of your insured planted acres of potatoes by the premium rate for this Endorsement contained in the actuarial documents. As a result of this change, premium will no longer be charged on acres prevented from planting.

• Revising section 1, 2, 3, and 8 to correct the reference to the title within the Federal Register of the Northern Potato Crop Insurance—Quality Endorsement. FCIC is also revising section 8 and 9 to correct the reference to the title within the Federal Register of the Northern Potato Crop Insurance—Storage Coverage Endorsement. FCIC is also revising section 2, 3, and 8 to correct the reference to the title within the Federal Register of the Northern Potato Crop Insurance Provisions.

• Revising section 8(a)(1) and 8(b)(1)(i) to replace “Special Provisions or addendum thereto” with “actuarial documents” to more accurately refer to the location where price elections are published ( i.e., prices tab of the actuarial documents). Furthermore, FCIC no longer issues price addendums.

The changes to the Northern Potato Crop Insurance—Certified Seed Endorsement (7 CFR part 457.145) are:

FCIC is revising the title of the Endorsement from “Potato Crop Insurance—Certified Seed Endorsement” to “Northern Potato Crop Insurance—Certified Seed Endorsement” (henceforth referred to as “Northern Potato Crop Insurance—Certified Seed Endorsement”).

FCIC is revising section 1 to specify that the premium is only applicable for planted acreage of certified seed potatoes under this Endorsement by stating that the additional premium amount for this coverage will be determined by multiplying the number of your insured planted acres of certified seed potatoes by the premium rate for this Endorsement contained in the actuarial documents. As a result of this change, premium will no longer be charged on acres prevented from planting.

FCIC is revising sections 1, 4, 8, and 9 to correct the reference to the title within the Federal Register of the Northern Potato Crop Insurance Provisions. FCIC is also revising section 1 to correct the reference to the title within the Federal Register of the Northern Potato Crop Insurance—Storage Coverage Endorsement.

FCIC is revising sections 7(b) and 7(d) to replace “Special Provisions” with “actuarial documents” to more accurately refer to the location where price elections are published ( i.e., prices tab of the actuarial documents).

The changes to the Northern Potato Crop Insurance—Storage Coverage Endorsement (7 CFR part 457.146) are:

• Revising section 1 to specify that the premium is only applicable for planted acreage under this Endorsement by stating that the additional premium amount for this coverage will be determined by multiplying the number of your insured planted acres of potatoes by the premium rate for this Endorsement contained in the actuarial documents. As a result of this change, premium will no longer be charged on acres prevented from planting.

• Revising sections 1, 3, 4, and 5 to correct the reference to the title within the Federal Register of the Northern Potato Crop Insurance Provisions.

The Administrative Procedure Act (APA, 5 U.S.C. 553) provides that the notice and comment and 30-day delay in the effective date provisions do not apply when the rule involves specified actions, including matters relating to contracts. This rule governs contracts for crop insurance policies and therefore falls within that exemption.

For major rules, the Congressional Review Act requires a delay the effective date of 60 days after publication to allow for Congressional review. This rule is not a major rule under the Congressional Review Act, as defined by 5 U.S.C. 804(2). Therefore, this final rule is effective April 30, 2021. Although not required by APA or any other law, FCIC has chosen to request comments on this rule.

Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The requirements in Executive Orders 12866 and 13563 for the analysis of costs and benefits apply to rules that are determined to be significant.

The Office of Management and Budget (OMB) designated this rule as not significant under Executive Order 12866, “Regulatory Planning and Review,” and therefore, OMB has not reviewed this rule and analysis of the costs and benefits is not required under either Executive Order 12866 or 13563.

Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. In addition to your substantive comments on this rule, we invite your comments on how to make the rule easier to understand. For example:

• Are the requirements in the rule clearly stated? Are the scope and intent of the rule clear?

• Does the rule contain technical language or jargon that is not clear?

• Is the material logically organized?

• Would changing the grouping or order of sections or adding headings make the rule easier to understand?

• Could we improve clarity by adding tables, lists, or diagrams?

• Would more, but shorter, sections be better? Are there specific sections that are too long or confusing?

• What else could we do to make the rule easier to understand?

The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by SBREFA, generally requires an agency to prepare a regulatory analysis of any rule whenever an agency is required by APA or any other law to publish a proposed rule, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule is not subject to the Regulatory Flexibility Act because as noted above, this rule is exempt from APA and no other law requires that a proposed rule be published for this rulemaking initiative.

In general, the environmental impacts of rules are to be considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347) and the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508). FCIC conducts programs and activities that have been determined to have no individual or cumulative effect on the human environment. As specified in 7 CFR 1b.4, FCIC is categorically excluded from the preparation of an Environmental Analysis or Environmental Impact Statement unless the FCIC Manager (agency head) determines that an action may have a significant environmental effect. The FCIC Manager has determined this rule will not have a significant environmental effect. Therefore, FCIC will not prepare an environmental assessment or environmental impact statement for this action and this rule serves as documentation of the programmatic environmental compliance decision.

Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials that would be directly affected by proposed Federal financial assistance. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened Federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal financial assistance and direct Federal development. For reasons specified in the final rule related notice regarding 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the programs and activities in this rule are excluded from the scope of Executive Order 12372.

This rule has been reviewed under Executive Order 12988, “Civil Justice Reform.” This rule will not preempt State or local laws, regulations, or policies unless they represent an irreconcilable conflict with this rule. Before any judicial actions may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR part 11 are to be exhausted.

This rule has been reviewed under Executive Order 13132, “Federalism.” The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government, except as required by law. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

RMA has assessed the impact of this rule on Indian Tribes and determined that this rule does not, to our knowledge, have Tribal implications that require Tribal consultation under E.O. 13175. The regulation changes do not have Tribal implications that preempt Tribal law and are not expected have a substantial direct effect on one or more Indian Tribes. If a Tribe requests consultation, RMA will work with the USDA Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified in this rule are not expressly mandated by Congress.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions of State, local, and Tribal governments or the private sector. Agencies generally must prepare a written statement, including cost benefits analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates, as defined in Title II of UMRA, for State, local, and Tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

The title and number of the Federal Domestic Assistance Program listed in the Catalog of Federal Domestic Assistance to which this rule applies is No. 10.450—Crop Insurance.

In accordance with the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, subchapter I), the rule does not change the information collection approved by OMB under control numbers 0563-0053.

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

For the reasons discussed above, FCIC amends 7 CFR 457 effective for the 2022 and succeeding crop years for crops with a contract change date on or after April 30, 2021, as follows:

The Board is making a technical correction to a provision of its rules regarding company-run stress test requirements for certain U.S. bank holding companies, certain U.S. intermediate holding companies of foreign banking organizations, and nonbank financial companies supervised by the Board. 1 In a final rule published in March 2020 (SCB final rule), 2 the Board adopted a proposal  3 (SCB proposal) to amend its capital rule, capital plan rule, and stress testing rules  4 in order to integrate the capital rule with the Board's Comprehensive Capital Analysis and Review by introducing the stress capital buffer (SCB) requirement. 5 Also in the SCB final rule, the Board amended its stress testing rules to incorporate a definition of “significant trading activity” into the Board's company-run stress test requirements in order to increase transparency regarding the application of an additional trading and counterparty scenario component. In doing so, the Board inadvertently deleted from these rules language regarding the timing of certain aspects of the trading and counterparty component of the company-run stress test. The deletion of this language did not reflect the amendments to the rule described in the Supplementary Information section of the SCB final rule and was not included or described in the SCB proposal.

This final rule corrects the Board's stress testing rules by restoring the inadvertently deleted regulatory text. Specifically, the technical correction revises these rules by adding to section 252.54(b)(2)(i) of Regulation YY language indicating that the data used in the trading and counterparty component of the company-run stress test must be as of a date selected by the Board between October 1 of the previous calendar year and March 1 of the calendar year in which the stress test is performed pursuant to this section, and that the Board will communicate the as-of date and a description of the component to the company no later than March 1 of the calendar year in which the stress test is performed.

The Board is issuing this final rule without prior notice and the opportunity for public comment and the 30-day delayed effective date ordinarily prescribed by the Administrative Procedure Act (APA). 6 Pursuant to section 553(b)(B) of the APA, general notice and the opportunity for public comment are not required with respect to a rulemaking when an “agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”  7

The Board believes that the public interest is best served by implementing the final rule as soon as possible. Public comment is unnecessary, as the SCB final rule was previously issued for comment, and the technical edits discussed here merely correct drafting errors in the SCB final rule.

The corrections made by this final rule will reduce ambiguity and ensure that banking organizations implement the company-run stress test in a consistent manner and as described in the Supplementary Information section of the SCB final rule and other final rules adopted by the Board.

The APA also requires a 30-day delayed effective date, except for (1) substantive rules which grant or recognize an exemption or relieve a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause. 8 The Board finds good cause to publish the final rule correction with an immediate effective date for the same reasons set forth above under the discussion of section 553(b)(B) of the APA.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) (PRA) states that no agency may conduct or sponsor, nor is the respondent required to respond to, an information collection unless it displays a currently valid OMB control number. This final rule does not contain any collections of information, and therefore no submissions will be made by the Board to OMB in connection with this final rule.

The Regulatory Flexibility Act (RFA)  9 requires an agency to consider whether the rules it proposes will have a significant economic impact on a substantial number of small entities. 10 The RFA applies only to rules for which an agency publishes a general notice of proposed rulemaking pursuant to 5 U.S.C. 553(b). As discussed previously, consistent with section 553(b)(B) of the APA, the Board has determined for good cause that general notice and opportunity for public comment is unnecessary and contrary to the public's interest, and therefore the Board is not issuing a notice of proposed rulemaking. Accordingly, the Board has concluded that the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

Section 722 of the Gramm-Leach-Bliley Act  11 requires the Federal banking agencies to use “plain language” in all proposed and final rules published after January 1, 2000. In light of this requirement, the Board has sought to present the final rule in a simple and straightforward manner.

For the reasons set forth in the preamble, chapter II of title 12 of the Code of Federal Regulations is amended as follows:

The Ability-to-Repay/Qualified Mortgage Rule (ATR/QM Rule) requires a creditor to make a reasonable, good faith determination of a consumer's ability to repay a residential mortgage loan according to its terms. Loans that meet the ATR/QM Rule's requirements for qualified mortgages (QMs) obtain certain protections from liability. The ATR/QM Rule defines several categories of QMs.

One QM category defined in the ATR/QM Rule is the General QM category. General QMs must comply with the ATR/QM Rule's prohibitions on certain loan features, points-and-fees limits, and underwriting requirements. Under the original ATR/QM Rule, the ratio of the consumer's total monthly debt to total monthly income (DTI or DTI ratio) could not exceed 43 percent for a loan to meet the General QM loan definition (original, DTI-based General QM loan definition). 1 In December 2020, the Bureau issued the General QM Final Rule, which amended Regulation Z by replacing the original, DTI-based General QM loan definition with a limit based on loan pricing and by making other changes to the General QM loan definition (revised, price-based General QM loan definition). 2 The General QM Final Rule took effect on March 1, 2021, and it provided a mandatory compliance date of July 1, 2021. Under the General QM Final Rule, as issued in December 2020, for covered transactions for which creditors receive an application on or after the March 1, 2021 effective date but prior to the July 1, 2021 mandatory compliance date, creditors had the option of complying with either the original, DTI-based General QM loan definition or the revised, price-based General QM loan definition. Only the revised, price-based General QM loan definition would have been available for applications received on or after the July 1, 2021 mandatory compliance date.

On March 3, 2021, the Bureau released for public comment a proposal to delay the General QM Final Rule's mandatory compliance date from July 1, 2021 to October 1, 2022. After considering the comments, the Bureau is issuing this final rule delaying the General QM Final Rule's mandatory compliance date as proposed. Specifically, this final rule amends comments 43-2 and 43(e)(4)-2 and -3 to reflect a delay of the mandatory compliance date by changing the date “July 1, 2021” where it appears in those comments to “October 1, 2022.” The final rule also adds new comment 43(e)(2)-1 to clarify the General QM loan definitions available to creditors for applications received on or after March 1, 2021, but prior to October 1, 2022.

For covered transactions for which creditors receive an application on or after March 1, 2021, but prior to October 1, 2022, creditors will have the option of complying with either the original, DTI-based General QM loan definition or the revised, price-based General QM loan definition. Under the final rule, only the revised, price-based General QM loan definition will be available for applications received on or after the October 1, 2022 mandatory compliance date.

The ATR/QM Rule also defines a temporary category of QMs that is also affected by this final rule. That temporary category of QMs includes mortgages that (1) comply with the same loan-feature prohibitions and points-and-fees limits as General QMs and (2) are eligible to be purchased or guaranteed by either the Federal National Mortgage Association (Fannie Mae) or the Federal Home Loan Mortgage Corporation (Freddie Mac) (collectively, the government-sponsored enterprises or GSEs), while operating under the conservatorship or receivership of the Federal Housing Finance Agency (FHFA). This final rule refers to these loans as Temporary GSE QM loans, and the provision that created this loan category is commonly known as the GSE Patch. In October 2020, the Bureau issued a final rule stating that the Temporary GSE QM loan definition will be available only for covered transactions for which the creditor receives the consumer's application before the mandatory compliance date of the General QM Final Rule. 3 Under the General QM Final Rule, the Temporary GSE QM loan definition would have expired on the earlier of July 1, 2021 or the date the applicable GSE exits Federal conservatorship. Under this final rule, the Temporary GSE QM loan definition will expire upon the earlier of October 1, 2022, or the date the applicable GSE exits Federal conservatorship.

As discussed below, this final rule delays the mandatory compliance date of the General QM Final Rule to help ensure access to responsible, affordable mortgage credit and to preserve flexibility for consumers affected by the COVID-19 pandemic and its economic effects. This final rule does not make any other changes to the General QM loan definition. The Bureau plans to evaluate the General QM Final Rule's amendments to the General QM loan definition and will consider at a later date whether to initiate another rulemaking to reconsider other aspects of the General QM loan definition.

The effective date of this final rule is June 30, 2021.

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act)  4 amended the Truth in Lending Act (TILA)  5 to establish, among other things, ability-to-repay (ATR) requirements in connection with the origination of most residential mortgage loans. 6 As amended by the Dodd-Frank Act, TILA prohibits a creditor from making a residential mortgage loan unless the creditor makes a reasonable and good faith determination based on verified and documented information that the consumer has a reasonable ability to repay the loan. 7 TILA identifies the factors a creditor must consider in making a reasonable and good faith assessment of a consumer's ability to repay. These factors are the consumer's credit history, current and expected income, current obligations, DTI ratio or residual income after paying non-mortgage debt and mortgage-related obligations, employment status, and other financial resources other than equity in the dwelling or real property that secures repayment of the loan. 8

A creditor may not be certain whether its ATR determination is reasonable in a particular case. TILA addresses this potential uncertainty by defining a category of loans—called QMs—for which a creditor “may presume that the loan has met” the ATR requirements. 9 The statute generally defines a QM to mean any residential mortgage loan for which:

• The loan does not have negative amortization, interest-only payments, or balloon payments;

• The loan term does not exceed 30 years;

• The total points and fees generally do not exceed 3 percent of the loan amount;

• The income and assets relied upon for repayment are verified and documented;

• The underwriting uses a monthly payment based on the maximum rate during the first five years, uses a payment schedule that fully amortizes the loan over the loan term, and takes into account all mortgage-related obligations; and

• The loan complies with any guidelines or regulations established by the Bureau relating to the ratio of total monthly debt to monthly income or alternative measures of ability to pay regular expenses after payment of total monthly debt. 10

In January 2013, the Bureau issued a final rule amending Regulation Z to implement TILA's ATR requirements and define several categories of QM loans (January 2013 Final Rule). 11 This final rule refers to the January 2013 Final Rule and later amendments  12 to it collectively as the ATR/QM Rule or the Rule. One category of QMs defined by the ATR/QM Rule consists of General QMs. The January 2013 Final Rule provided that a loan was a General QM if:

• The loan does not have negative-amortization, interest-only, or balloon-payment features, a term that exceeds 30 years, or points and fees that exceed specified limits;  13

• The creditor underwrites the loan based on a fully amortizing schedule using the maximum rate permitted during the first five years;  14

• The creditor considers and verifies the consumer's income and debt obligations in accordance with appendix Q;  15 and

• The consumer's DTI ratio is no more than 43 percent, determined in accordance with appendix Q. 16

Appendix Q contained standards for calculating and verifying debt and income for purposes of determining whether a mortgage satisfies the 43 percent debt-to-income ratio limit (DTI limit) for General QMs. The standards in appendix Q were adapted from guidelines maintained by the Federal Housing Administration (FHA) when the January 2013 Final Rule was issued. 17

As discussed above, another category of QMs defined by the January 2013 Final Rule, Temporary GSE QMs, consists of mortgages that (1) comply with the ATR/QM Rule's prohibitions on certain loan features and its limitations on points and fees  18 and (2) are eligible to be purchased or guaranteed by either GSE while under the conservatorship of FHFA. 19 Unlike for General QMs, the January 2013 Final Rule did not prescribe a DTI limit for Temporary GSE QMs nor did it require use of appendix Q to verify and calculate debt, income, and DTI ratios. The January 2013 Final Rule provided that the Temporary GSE QM loan definition would expire with respect to each GSE when that GSE ceases to operate under conservatorship or on January 10, 2021, whichever occurred first. 20

In 2020, the Bureau issued three final rules amending the ATR/QM Rule, two of which relate to this final rule. 21 These two final rules are discussed below.

The Bureau issued the Patch Extension Final Rule on October 20, 2020. It was published in the Federal Register on October 26, 2020. 22 The Patch Extension Final Rule amended Regulation Z to replace the January 10, 2021 sunset date of the Temporary GSE QM loan definition with a provision stating that the Temporary GSE QM loan definition will be available only for covered transactions for which the creditor receives the consumer's application before the mandatory compliance date of final amendments to the General QM loan definition in Regulation Z. The Patch Extension Final Rule did not amend the clause providing that the Temporary GSE QM loan definition expires on the date the applicable GSE exits Federal conservatorship. Therefore, under the Patch Extension Final Rule, the Temporary GSE QM loan definition will expire on the mandatory compliance date of final amendments to the General QM loan definition or the date the applicable GSE exits Federal conservatorship, whichever comes first.

The Bureau issued the General QM Final Rule on December 10, 2020. It was published in the Federal Register on December 29, 2020. 23 The General QM Final Rule amended Regulation Z to remove the General QM loan definition's DTI limit (and appendix Q) and replace it with limits based on the loan's pricing. Under the amended rule, a loan meets the General QM loan definition only if the annual percentage rate (APR) exceeds the average prime offer rate (APOR) for a comparable transaction by less than 2.25 percentage points as of the date the interest rate is set. The General QM Final Rule provided higher thresholds for loans with smaller loan amounts, for certain manufactured housing loans, and for subordinate-lien transactions. The General QM Final Rule requires the creditor to consider the consumer's DTI ratio or residual income and to consider and verify the consumer's income or assets other than the value of the dwelling and the consumer's debts. The General QM Final Rule also provides a safe harbor for compliance with this verification requirement if a creditor complies with verification standards in certain manuals listed in the rule. 24 The General QM Final Rule had an effective date of March 1, 2021, and a mandatory compliance date of July 1, 2021.

On February 23, 2021, the Bureau issued a statement titled “Statement on Mandatory Compliance Date of General QM Final Rule and Possible Reconsideration of General QM Final Rule and Seasoned QM Final Rule” (February 23, 2021 Statement or Statement). 25 The Statement was published in the Federal Register on February 26, 2021. 26 In it, the Bureau stated, in relevant part, that it expected to issue a proposal to delay the July 1, 2021 mandatory compliance date of the General QM Final Rule. The Bureau stated that it would consider at a later date whether to initiate another rulemaking to reconsider other aspects of the General QM loan definition. The Statement also indicated that the Bureau is considering whether to initiate a rulemaking to revisit another final rule that it issued in December 2020, the Seasoned QM Final Rule. 27

On March 3, 2021, the Bureau released a proposal to delay the General QM Final Rule's mandatory compliance date from July 1, 2021 to October 1, 2022 (the proposal). The proposal was published in the Federal Register on March 5, 2021. 28 In the proposal, the Bureau preliminarily concluded that delaying the mandatory compliance date to October 1, 2022 would help ensure access to responsible, affordable mortgage credit and preserve flexibility for consumers affected by the COVID-19 pandemic and its economic effects. The comment period for the proposal ended on April 5, 2021. The Bureau received 24 unique comments on the proposal. The Bureau summarizes and responds to these comments in part IV below.

As discussed above and in the proposal, the Bureau is delaying the General QM Final Rule's mandatory compliance date to help those affected by the COVID-19 pandemic and its economic effects. The General QM Final Rule acknowledged that the COVID-19 pandemic has had a significant effect on the U.S. economy. In the early months of the pandemic, economic activity contracted, millions of workers became unemployed, and mortgage markets were affected. Although the unemployment rate has declined from a high of 14.8 percent in April 2020 to 6.0 percent in March 2021, 29 unemployment remains elevated relative to the pre-pandemic rate of 3.5 percent in February 2020, and the labor force participation rate remains below pre-pandemic levels, at 61.5 percent in March 2021 versus 63.3 percent in February 2020. The housing market has seen a significant rebound in mortgage-origination activity, buoyed by historically low interest rates and by an increasingly large share of GSE-backed loans. However, the share of origination activity outside the GSE-backed origination channel has declined from pre-pandemic levels, and mortgage-credit availability for many consumers—including those who would be dependent on the non-QM market for financing—remains tighter than prior to the pandemic. 30 The pandemic's impact on both the secondary market for new originations and on the servicing of existing mortgages is described below.

The early economic disruptions associated with the COVID-19 pandemic restricted the flow of credit in the U.S. economy, particularly as uncertainty rose in mid-March 2020, and investors moved rapidly towards cash and government securities. 31 The lack of investor demand to purchase mortgages, combined with a large supply of agency mortgage-backed securities (MBS) entering the market, 32 resulted in widening spreads between the rates on a 10-year Treasury note and mortgage interest rates. 33 This dynamic made it difficult for creditors to originate loans, as many creditors rely on the ability to profitably sell loans in the secondary market to generate the liquidity to originate new loans. This resulted in mortgages becoming more expensive for both homebuyers and homeowners looking to refinance. After the actions taken by the Board of Governors of the Federal Reserve System (Board) in March 2020 to purchase agency MBS “in the amounts needed to support smooth market functioning and effective transmission of monetary policy to broader financial conditions and the economy,”  34 market conditions improved substantially. 35 This helped to stabilize the MBS market and resulted in a decline in mortgage rates and a significant increase in refinance activity since the Board's intervention.

Because non-agency MBS  36 are generally perceived by investors as riskier than agency MBS, the market for non-agency and non-QM mortgage credit significantly contracted in the early months of the pandemic. Issuance of non-agency MBS declined by 8.2 percent in the first quarter of 2020, with nearly all the transactions completed in January and February before the COVID-19 pandemic began to affect the economy significantly. 37 Nearly all major non-QM creditors ceased making loans in March and April 2020. The non-QM market has since been recovering, with strong investor demand for non-QM MBS due to better-than-expected performance during the pandemic. 38 Many non-QM creditors— which largely depend on the ability to sell loans in the secondary market in order to fund new loans—have resumed originations, although some continue to maintain tighter underwriting requirements compared to prior to the pandemic. 39 Other creditors that have typically specialized in non-QM financing have shifted their focus to GSE originations due to historically low interest rates and the relative speed and ease with which GSE loans can be originated. Nonetheless, many non-QM creditors and investors expect the non-agency market to continue to strengthen in 2021 and recover to its pre-pandemic levels of production. 40 Because many of these loans that were historically considered non-QM may qualify for QM status under the revised, price-based General QM loan definition, it is unclear how quickly the market for non-QM loans that fall outside of existing QM definitions will develop.

As illustrated in Figure 1, the GSEs continue to play a dominant role in the market recovery, with the GSE share of first-lien mortgage originations at 59 percent in 2020, up from 43 percent in 2019. One analysis found that the FHA and U.S. Department of Veterans Affairs (VA) share declined slightly to 18 percent from 19 percent a year prior. 41 Portfolio lending declined to 21 percent in 2020, down from 36 percent in the third quarter of 2019, and private label securitizations declined to 1 percent from 2 percent a year prior.

In addition to the direct impact on origination volume and composition, the pandemic's impact on the mortgage servicing market has downstream effects on mortgage originations, as many of the same entities both originate and service mortgages. Anticipating that a number of homeowners would struggle to pay their mortgages due to the pandemic and related economic impacts, Congress passed and the President signed into law the Coronavirus Aid, Relief, and Economic Security Act (CARES Act)  42 in March 2020. The CARES Act provides certain protections for borrowers with federally backed mortgages, such as those whose mortgages are purchased or securitized by a GSE or insured or guaranteed by the FHA, VA, or U.S. Department of Agriculture (USDA). The CARES Act mandated a 60-day foreclosure moratorium for such mortgages and allowed borrowers to request up to 180 days of forbearance due to a COVID-19-related financial hardship, with an option to extend the forbearance period for an additional 180 days.

The FAA has received a report of an electrical bonding and grounding issue that was discovered during testing of a newly manufactured Boeing Model 737-8 airplane. During standard production testing by Boeing, electrical power systems did not perform as expected. Investigation identified insufficient bonding of certain metallic support panel assemblies installed in two areas of the flight deck, which affects the electrical grounding of installed equipment. The reported event occurred prior to delivery of that airplane. Investigation identified design changes to the flight deck support panel assemblies, which affected the dedicated bonding and grounding paths that existed prior to the changes. The affected areas are the P6 panel assembly, including the mounting tray for the standby power control unit (SPCU), located behind the first officer, and the main instrument panel (MIP) assembly located in front of and between the captain and first officer. The issue affects certain Boeing Model 737-8 and 737-9 airplanes manufactured after the design changes were implemented. All affected in-service airplanes passed all testing prior to delivery, and there have been no reported in-service failures due to this condition. However, without dedicated grounding paths implemented by design, there is a potential for degradation or loss of the existing uncontrolled ground paths on those airplanes over time.

Degradation of bonds essential for the electrical grounding of equipment, if not addressed, could affect the operation of certain systems, including engine ice protection, and result in loss of critical functions and/or multiple simultaneous flight deck effects, which may prevent continued safe flight and landing. The FAA is issuing this AD to address the unsafe condition on these products.

All affected airplanes, both in the U.S. and worldwide, have been removed from service, pending development and implementation of approved corrective action that will address the unsafe condition.

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

This AD requires modifying the electrical bonding of certain support panel assemblies installed in the flight deck to provide sufficient electrical grounding for equipment installed in the flight deck.

The manufacturer is currently developing service information for a modification that will address the unsafe condition identified in this AD. Once this service information is developed, approved, and available, the FAA intends to approve that service information as a method of compliance for the requirements of this AD.

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

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. On April 7, 2021, the FAA was advised by the manufacturer that its design changes to the referenced panel assemblies had created an urgent safety issue. On April 9, 2021, the manufacturer recommended to operators of affected airplanes that such airplanes be removed from service. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because degradation of bonds essential for the electrical grounding of equipment could affect the operation of certain systems, including engine ice protection, and result in loss of critical functions and/or multiple simultaneous flight deck effects, which may prevent continued safe flight and landing. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forgo notice and comment.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include Docket No. FAA-2021-0319 and Project Identifier AD-2021-00443-T at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Julio Alvarez, Aerospace Engineer, Systems and Equipment Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3500; email: 9-FAA-SACO-AD-Inquiry@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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

The FAA estimates that this AD affects 71 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

Section 14(a)(2) of the Consumer Product Safety Act (CPSA) requires manufacturers and importers of children's products to certify that their products comply with all applicable children's product safety rules. Certification must be based on third party testing by a CPSC-accepted laboratory. Section 14(a)(3) of the CPSA requires the CPSC to publish a notice of requirements for the accreditation of third party testing laboratories to determine whether a children's product conforms to the applicable children's product safety rule. CPSC promulgated regulations implementing these statutory requirements as described below.

The CPSC regulation for testing and labeling is 16 CFR part 1107. The Commission promulgated the final rule in November 2011. 76 FR 69482. The regulation at 16 CFR part 1107, among other things, incorporated by reference International Organization for Standardization (ISO)/International Electrotechnical Commission (IEC) Standard ISO/IEC 17025:2005(E), “General Requirements for the Competence of Testing and Calibration Laboratories” (ISO/IEC 17025) and ISO/IEC 17011:2004(E) “Conformity assessment—General requirements for Accreditation Bodies Accrediting Conformity Assessment Bodies” (ISO/IEC 17011) in § 1107.21 regarding periodic testing. All manufacturers of children's products must conduct periodic testing. All periodic testing must be conducted by a CPSC-accepted third party conformity assessment body.

Under part 1107 a manufacturer must conduct periodic testing to ensure compliance with the applicable children's product safety rules at least once a year. The rule allows manufacturers to extend the time between required periodic testing to either two or three years, as follows:

• Two years—Required periodic testing by third party conformity assessment body may be extended to two years if the manufacturer implements a production testing plan as described in 16 CFR 1107.21(c)(2).

• Three years—Required periodic testing by a third party conformity assessment body may be extended to three years for manufacturers conducting testing to ensure continued compliance with the applicable children's product safety rules using a testing laboratory accredited to ISO/IEC 17025:2005(E). The testing laboratory used to ensure continued compliance during the three-year period is not required to be a CPSC-accepted testing laboratory. However, any ISO/IEC 17025:2005(E)-accredited testing laboratory used for ensuring continued compliance must be accredited by an accreditation body that is accredited to ISO/IEC 17011:2004(E) 16 CFR 1107.21(d)(1)).

Both ISO/IEC 17025:2005(E) and ISO/IEC 17011:2004(E) were incorporated by reference in the periodic testing section (§ 1107.21) of part 1107.

The CPSC regulation for acceptance of third-party testing laboratories is 16 CFR part 1112. The Commission promulgated the final rule in March 2013. 78 FR 15836. The regulation at 16 CFR part 1112, among other things, establishes the baseline requirement for a laboratory to be CPSC accepted to conduct required third party testing on children's products. In order for a testing laboratory to be considered CPSC accepted, it must, among other things, be accredited to ISO/IEC 17025:2005(E), “General Requirements for the Competence of Testing and Calibration Laboratories” (ISO/IEC 17025). The testing laboratory's accreditation body must be a signatory to the International Laboratory Accreditation Cooperation—Mutual Recognition Arrangement (ILAC-MRA). Testing laboratories that are ISO/IEC 17025 accredited are assessed to have the technical and managerial competence to conduct testing in accordance with the standards and test methods that are listed in the laboratory's scope of accreditation. The accreditation body issues the accreditation scope for the laboratory and posts it for public viewing on the accreditation body's website. When the final rule was promulgated, ISO/IEC 17025:2005(E) was incorporated by reference in part 1112 (§ 1112.13).

In 2017, ISO/IEC published updated versions of ISO/IEC 17025 and ISO/IEC 17011. A general description of the standards and what changes were made in the revisions follows.

Testing laboratories that are accredited to ISO/IEC 17025 have demonstrated that they operate competently and generate valid results, thereby promoting confidence in their testing results around the world. The standard facilitates cooperation between laboratories and other bodies by generating wider acceptance of test results among countries. Specifically, ISO/IEC 17025 enables the international acceptance of test reports and certificates without the need for further testing, which, in turn, facilitates international trade.

ISO/IEC 17025:2017(E) was developed to address market conditions and technology changes that have occurred since publication of the 2005 version of the standard. ISO has highlighted the reasons for the revised standard and the substantive changes included in the new version. 1 The changes include:

• A process approach that now matches that of newer standards such as ISO 9001 (quality management), and the ISO/IEC 17000 series (standards for conformity assessment activities), putting the emphasis on the results of a process instead of the detailed description of its tasks and steps.

• The standard has a stronger focus on information technologies. In recognition of the fact that hard-copy manuals, records and reports are slowly being phased out in favor of electronic versions, it incorporates the use of computer systems, electronic records and the production of electronic results and reports.

• A new section has been added introducing the concept of risk-based thinking and describes the commonalities with ISO 9001:2015, “Quality management systems—Requirements.”

The main sections in ISO/IEC 17025:2017(E) are:

• General Requirements that include a provision stating that the laboratory shall identify risks to its impartiality on an ongoing basis and demonstrate how it minimizes such risk.

• Structural requirements that cover provisions for defining the organization and management of the laboratory and the role and authorities for laboratory management.

• Resource requirements that address aspects of personnel, facilities, and equipment.

• Process requirements include evaluation of measurement uncertainty, validation of methods, handling of test items, and reporting of results.

• Management System Requirements that include control of system documents and records, actions to address risks and opportunities, corrective actions, internal audits, and management reviews.

ILAC and ISO issued a “Joint ILAC-ISO Communiqué on the recognition of ISO/IEC 17025 during a Three-Year Transition.”  2

The communiqué states:

In January 2021, ILAC reported good progress towards achieving the revised June 2021 deadline, with 12 accreditation bodies confirming (as of November 30, 2020) that 100 percent of their laboratories accredited to ISO/IEC 17025 have transitioned to the 2017 version, and an additional 73 accreditation bodies confirming more than 75 percent laboratories had completed this transition.

ISO/IEC 17011 specifies requirements for the competence, consistent operation, and impartiality of accreditation bodies assessing and accrediting conformity assessment bodies. For CPSC purposes, the conformity assessment bodies are third party testing laboratories.

As is the case for the ISO/IEC 17025 revision, the new version of ISO/IEC 17011 includes alignment with the common structure for the ISO 17000 series standards. The revised standard adds concepts of risk and risk-based assessments. The revised standard also incorporates competence criteria in the document, including an informative annex on knowledge and skills.

The transition from ISO/IEC 17011:2004(E) to ISO/IEC 17011:2017(E) was completed in December 2020. All ILAC-MRA signatory accreditation bodies are now conducting assessment activities according to ISO/IEC 17011:2017(E).

The direct final rule (DFR) only amends those sections of 16 CFR parts 1107 and 1112 that incorporate by reference or refer to ISO/IEC 17025:2005(E) and ISO/IEC 17011:2004(E). The DFR updates the incorporation by reference provisions of the regulations and references to the standards in 16 CFR parts 1107 and 1112 from ISO/IEC 17025:2005(E) and ISO/IEC 17011:2004(E) to ISO/IEC 17025:2017(E) and ISO/IEC 17011:2017(E), as applicable, in the sections listed below:

The DFR makes no other changes to part 1107 or 1112.

The Administrative Procedure Act (APA) generally requires that a substantive rule must be published not less than 30 days before its effective date. 5 U.S.C. 553(d)(1). The DFR sets an effective date of 90 days after publication in the Federal Register . CPSC staff determined that all testing laboratories that are currently CPSC-accepted, and testing laboratories that are seeking CPSC-acceptance, will have completed their accreditation renewal to ISO/IEC 17025:2017(E) before the rule's effective date. Thus, the effective date for rule is July 29, 2021.

The DFR updates the sections of 16 CFR parts 1107 and 1112 that incorporate by reference ISO/IEC 17025:2017(E) and ISO/IEC 17011:2017(E). The Office of the Federal Register (OFR) has regulations regarding incorporation by reference. 1 CFR part 51. Under these regulations, agencies must discuss, in the preamble to a final rule, ways in which the material the agency incorporates by reference is reasonably available to interested parties, and how interested parties can obtain the material. In addition, the preamble to the final rule must summarize the material. 1 CFR 51.5(b).

In accordance with the OFR regulations, section B, of this preamble summarizes the major provisions of ISO/IEC 17025:2017(E) and ISO/IEC 17011:2017(E) that the Commission incorporates by reference into sections of 16 CFR parts 1107 and 1112. The standard is reasonably available to interested parties and interested parties can purchase a copy of ISO/IEC 17025:2017(E) and ISO/IEC 17011:2017(E) from the International Organization for Standardization (ISO), ISO Central Secretariat Chemin de Blandonnet 8 CP 401—1214 Vernier, Geneva, Switzerland; Telephone + 41 22 749 01 11, Fax + 41 22 733 34 30; http://www.iso.org/iso/home.htm. Interested parties can also schedule an appointment to inspect a copy of the standards at CPSC's Division of the Secretariat, U.S. Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814, telephone: 301-504-7479; email: cpsc-os@cpsc.gov.

The Commission is issuing this rule as a direct final rule. Although the Administrative Procedure Act (APA; 5 U.S.C. 551-559) generally requires agencies to provide notice of a rule and an opportunity for interested parties to comment on it, section 553 of the APA provides an exception when the agency, “for good cause finds,” that notice and comment are “impracticable, unnecessary, or contrary to the public interest.” Id. 553(b)(B). The Commission concludes that when merely updating the incorporations by references contained in 16 CFR parts 1107 and 1112 to reflect the current versions of ISO/IEC 17025:2017(E) and ISO/IEC 17011:2017(E), notice and comment is unnecessary.

The purpose of this direct final rule is to update the references in the CFR so that it reflects the versions of the voluntary standards currently in effect. The ISO/IEC 17025:2017(E) and ISO/IEC 17011:2017(E) updates to the voluntary standards are not controversial, and are almost universally complied with by the testing and accreditation community involved in CPSA required testing. We do not expect any adverse comments regarding the updates to the references to ISO/IEC 17025:2017(E) and ISO/IEC 17011:2017(E) in the CFR.

In Recommendation 95-4, the Administrative Conference of the United States (ACUS) endorses direct final rulemaking as an appropriate procedure to expedite rules that are noncontroversial and that are not expected to generate significant adverse comments. See 60 FR 43108 (Aug. 18, 1995). ACUS recommends that agencies use the direct final rule process when they act under the “unnecessary” prong of the good cause exemption in 5 U.S.C. 553(b)(B). Consistent with the ACUS recommendation, the Commission is publishing this rule as a direct final rule, because CPSC does not expect any significant adverse comments.

Unless CPSC receives a significant adverse comment within 30 days of this notification, the rule will become effective on July 29, 2021. In accordance with ACUS's recommendation, the Commission considers a significant adverse comment to be “one where the commenter explains why the rule would be inappropriate,” including an assertion challenging “the rule's underlying premise or approach,” or a claim that the rule “would be ineffective or unacceptable without change.” 60 FR 43108, 43111. As noted, this rule simply updates the references in the CFR to reflect noncontroversial changes to ISO/IEC 17025:2017(E) and ISO/IEC 17011:2017(E) and are almost universally complied with by the testing and accreditation community involved in CPSA required testing.

If the Commission receives a significant adverse comment, the Commission will withdraw this direct final rule. Depending on the comment and other circumstances, the Commission may then incorporate the adverse comment into a subsequent direct final rule or publish a notice of proposed rulemaking, providing an opportunity for public comment.

The Regulatory Flexibility Act (RFA) generally requires that agencies review proposed and final rules for their potential economic impact on small entities, including small businesses, and prepare regulatory flexibility analyses. 5 U.S.C. 603 and 604. The RFA applies to any rule that is subject to notice and comment procedures under section 553 of the APA. 5 U.S.C. 603 and 604. As explained above, the Commission has determined that notice and comment is not necessary for this direct final rule. Thus, the RFA does not apply. We also note the limited nature of this document. The amendments to parts 1107 and 1112 simply update the incorporations by reference provisions and citations in the regulations to the current versions of ISO/IEC 17025 and ISO/IEC 17011 and will not result in any substantive changes to the regulations. Rather, with this action, the CFR will reflect the current versions of ISO/IEC 17025 and ISO/IEC 17011 in 16 CFR parts 1107 and 1112. However, the impact of the direct final rule on any testing laboratory that maintains its accreditation solely to conduct third party testing is not expected to be large and would be undertaken by the testing laboratory only if it expected to make sufficient revenue from third party testing under the CPSA to justify the expense.

The Commission's regulations provide a categorical exclusion for the Commission's rules from any requirement to prepare an environmental assessment or an environmental impact statement because they “have little or no potential for affecting the human environment.” 16 CFR 1021.5(c)(2). This rule falls within the categorical exclusion, so no environmental assessment or environmental impact statement is required.

The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that before a rule may take effect, the agency issuing the rule must submit the rule, and certain related information, to each House of Congress and the Comptroller General. 5 U.S.C. 801(a)(1). The CRA submission must indicate whether the rule is a “major rule.” The CRA states that the Office of Information and Regulatory Affairs (OIRA) determines whether a rule qualifies as a “major rule.”

Pursuant to the CRA, this rule does not qualify as a “major rule,” as defined in 5 U.S.C. 804(2). To comply with the CRA, CPSC will submit the required information to each House of Congress and the Comptroller General.

For the reasons discussed in the preamble, the Commission amends 16 CFR chapter II as follows:

On August 28, 2020, the Railroad Retirement Board published an interim final rule on guidance implementing Executive Order 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents,” signed by President Donald Trump on October 9, 2019 (85 FR 53160). As required by the Executive Order, the rule contained policy and requirements for issuing, modifying, withdrawing, and using guidance, making guidance available to the public, a notice and comment process for significant guidance, and taking and responding to petitions about guidance. On January 20, 2021, President Joseph Biden issued Executive Order 13992, “Revocation of Certain Executive Orders Concerning Federal Regulation” which among other things, revoked Executive Order 13891 and directed agencies to take steps promptly to rescind any orders, rules, regulations, guidelines, or policies, or portions thereof, implementing or enforcing the revoked Executive Orders (86 FR 7049).

In order to comply with Executive Order 13992, the Railroad Retirement Board has determined that this rule is suitable for final rulemaking. The Railroad Retirement Board also finds good cause to provide for an immediate effective date for this rule, because it imposes no obligations on parties inside or outside the federal government and therefore no advance notice is required to enable employees or other private parties to come into compliance.

For the reasons set out in the preamble and under the authority of 45 U.S.C. 231f(b)(5), the Railroad Retirement Board amends title 20, chapter II, subchapter A, part 200, of the Code of Federal Regulations as follows:

The Federal Civil Penalties Inflation Adjustment Act of 1990 (the Inflation Adjustment Act), Public Law 101-410, 104 Stat. 890, 28 U.S.C. 2461 note, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Public Law 114-74, section 701, 129 Stat. 584, requires the regular adjustment and evaluation of civil monetary penalties to maintain their deterrent effect and helps to ensure that penalty amounts imposed by the Federal Government are properly accounted for and collected. A “civil monetary penalty” is defined in the Inflation Adjustment Act as any penalty, fine, or other such sanction that is: (1) For a specific monetary amount as provided by Federal law, or has a maximum amount provided for by Federal law; (2) assessed or enforced by an agency pursuant to Federal law; and (3) assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.

The Inflation Adjustment Act, as amended, requires agencies to adjust civil monetary penalties annually by the inflation adjustment described in section 5 of the Inflation Adjustment Act. The Act also provides that any increase in a civil monetary penalty shall apply only to civil monetary penalties, including those whose associated violation predated such an increase, which are assessed after the date the increase takes effect.

The Inflation Adjustment Act, as amended, provides that the inflation adjustment does not apply to civil monetary penalties under the Internal Revenue Code of 1986 or the Tariff Act of 1930.

The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the Federal Alcohol Administration Act (FAA Act) pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated various authorities through Treasury Department Order 120-01, dated December 10, 2013 (superseding Treasury Department Order 120-01, dated January 24, 2003), to the TTB Administrator to perform the functions and duties in the administration and enforcement of this law.

The FAA Act contains the Alcoholic Beverage Labeling Act (ABLA) of 1988, Public Law 100-690, 27 U.S.C. 213-219a, which was enacted on November 18, 1988. Section 204 of the ABLA, codified in 27 U.S.C. 215, requires that a health warning statement appear on the labels of all containers of alcoholic beverages manufactured, imported, or bottled for sale or distribution in the United States, as well as on containers of alcoholic beverages that are manufactured, imported, bottled, or labeled for sale, distribution, or shipment to members or units of the U.S. Armed Forces, including those located outside the United States.

The health warning statement requirement applies to containers of alcoholic beverages manufactured, imported, or bottled for sale or distribution in the United States on or after November 18, 1989. The statement reads as follows:

Section 204 of the ABLA also specifies that the Secretary of the Treasury shall have the power to ensure the enforcement of the provisions of the ABLA and issue regulations to carry them out. In addition, section 207 of the ABLA, codified in 27 U.S.C. 218, provides that any person who violates the provisions of the ABLA is subject to a civil penalty of not more than $10,000, with each day constituting a separate offense.

Most of the civil monetary penalties TTB administers are imposed by the Internal Revenue Code of 1986, and thus are not subject to the inflation adjustment mandated by the Inflation Adjustment Act. The only civil monetary penalty TTB enforces that is subject to the inflation adjustment is the penalty imposed by the ABLA at 27 U.S.C. 218.

The TTB regulations implementing the ABLA are found in 27 CFR part 16, and the regulations implementing the Inflation Adjustment Act with respect to the ABLA penalty are found in 27 CFR 16.33. This section provides that, in accordance with the ABLA, any person who violates the provisions of this part is subject to a civil penalty of not more than $10,000. Further, pursuant to the provisions of the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended, this civil penalty is subject to periodic cost-of-living adjustments. Accordingly, any person who violates the provisions of 27 CFR part 16 is subject to a civil penalty of not more than the amount listed at https://www.ttb.gov/laws-regulations-and-public-guidance/labeling-act-penalty. Each day constitutes a separate offense.

To adjust the penalty, § 16.33(b) states that TTB will provide notice in the Federal Register and at the website mentioned above of cost-of-living adjustments to the civil penalty for violations of 27 CFR part 16.

In this document, TTB is adjusting the maximum ABLA penalty, as required by the amended Inflation Adjustment Act. TTB last published a yearly adjustment on April 9, 2019 (Notice No. 180, 84 FR 14614). TTB did not publish an adjustment in 2020. In order to satisfy the annual adjustment requirement, TTB is making the 2021 adjustment in this document. Since adjustments apply to penalties assessed after the effective date of the adjustment, TTB will not assess any penalties based on the amount that would have been the 2020 adjustment, but is including the calculation below to illustrate how it arrived at its 2021 adjustment.

As mentioned earlier, the ABLA contains a maximum civil monetary penalty. For such penalties, section 5 of the Inflation Adjustment Act indicates that the inflation adjustment is determined by increasing the maximum penalty by the cost-of-living adjustment. The cost-of-living adjustment means the percentage increase (if any) between the Consumer Price Index for all-urban consumers (CPI-U) for the October preceding the date of the adjustment and the prior year's October CPI-U.

The CPI-U in October 2018 was 252.885, and the CPI-U in October 2019 was 257.346. The rate of inflation between October 2018 and October 2019 was therefore 1.764 percent. When applied to the current ABLA penalty of $21,039, this rate of inflation yields a raw (unrounded) inflation adjustment of $371.12796. Rounded to the nearest dollar, this inflation adjustment is $371, meaning that the 2020 maximum civil penalty for violations of the ABLA would have been $21,410.

The CPI-U in October 2019 was 257.346, and the CPI-U in October 2020 was 260.388. The rate of inflation between October 2019 and October 2020 was therefore 1.182 percent. When applied to the 2020 ABLA penalty of $21,410 calculated in the previous paragraph, this rate of inflation yields a raw (unrounded) inflation adjustment of $253.0662. Rounded to the nearest dollar, the inflation adjustment is $253, meaning that the new maximum civil penalty for violations of the ABLA will be $21,663.

The new maximum civil penalty of $21,663 will apply to all penalties that are assessed after April 30, 2021. TTB will also update its web page at https://www.ttb.gov/laws-regulations-and-public-guidance/labeling-act-penalty to reflect the adjusted penalty.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard was not notified by the United States Secret Service of the visit with sufficient time to publish a NPRM prior to the arrival of persons under the protection of the USSS. Delay in promulgating this rule would be impracticable because a security zone is required to be in place by April 23, 2021, to protect these persons under the protection of the USSS in the vicinity of this waterway. The presence of these persons creates unique safety and security concerns.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register for the same reasons discussed above.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Delaware Bay (COTP) has determined that persons under the protection of the USSS transits starting April 23, 2021 present a potential target for terrorist acts, sabatoge, or other subversive acts, accidents, or other causes of a similar nature. Due to the roadway passing over the Christina River, this security zone is necessary to protect these persons, the public, and the surrounding waterway.

This rule establishes a temporary security zone from 2 p.m. on April 23, 2021, through 11:59 p.m. on May 17, 2021, on certain waters of the Christina River near Newport, Delaware. The security zone is bounded on the east by a line drawn from 39°42.55′ North Latitude (N), 075°35.88′ West Longitude (W), thence southerly to 39°42.50′ N, 075°35.87′ W proceding from shoreline to shoreline on the Christina River in a westerly direction where it is bounded by the South James Street Bridge at 39°42.63′ N, 075°36.53′ W.

This zone will be enforced intermittently during the effective dates. Enforcement of this zone will be broadcast via Broadcast Notice to Mariners on VHF-FM marine channel 16, as well as actual notice via on scene Coast Guard Personnel.

No vessel or person will be permitted to enter or remain within this zone without permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the location, duration and time of year of the security zone. Vessel traffic on this portion of the Christina River is typically limited to recreational traffic. The zone will be enforced intermittently and broadcast via VHF-FM channel 16 allowing vessel traffic time to trainsit outside of enforcement times. The time of year of this security zone has limited recreational traffic due to weather and the potential presence of ice.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a security zone which will be intermittently enforced over the course of approximately 24 days. It is categorically excluded from further review under paragraph L[60a] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

You may be potentially affected by this action if you manufacture, process, or use the chemical substances contained in this rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Manufacturers or processors of one or more subject chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.

This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import provisions. This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA, which would include the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, pursuant to 40 CFR 721.20 or 725.920 for the MCAN substance, any persons who export or intend to export a chemical substance that is the subject of this rule are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)), and must comply with the export notification requirements in 40 CFR part 707, subpart D.

The docket includes information considered by the Agency in developing the proposed and final rules. The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2020-0094, is available at https://www.regulations.gov and at the Office of Pollution Prevention and Toxics Docket (OPPT Docket), Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPPT Docket is (202) 566-0280.

Due to the public health emergency, the EPA Docket Center (EPA/DC) and Reading Room is closed to visitors with limited exceptions. The staff continues to provide remote customer service via email, phone, and webform. For the latest status information on EPA/DC services and docket access, visit https://www.epa.gov/dockets.

EPA is finalizing SNURs under TSCA section 5(a)(2) for chemical substances which were the subject of MCAN J-19-1 and PMNs P-18-391 and P-20-13. These SNURs require persons who intend to manufacture or process any of these chemical substances for an activity that is designated as a significant new use to notify EPA at least 90 days before commencing that activity.

TSCA section 5(a)(2) (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four TSCA section 5(a)(2) factors listed in Unit III.

General provisions for SNURs appear in 40 CFR part 721, subpart A, and (for microorganisms) 40 CFR part 725, subpart L. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the rule. Provisions relating to user fees appear at 40 CFR part 700. Pursuant to 40 CFR 721.1(c), persons subject to these SNURs must comply with the same SNUN requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A) (15 U.S.C. 2604(a)(1)(A)). In particular, these requirements include the information submission requirements of TSCA sections 5(b) and 5(d)(1) (15 U.S.C. 2604(b) and 2604(d)(1)), the exemptions authorized by TSCA sections 5(h)(1), 5(h)(2), 5(h)(3), and 5(h)(5) and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA must either determine that the significant new use is not likely to present an unreasonable risk of injury or take such regulatory action as is associated with an alternative determination before manufacture or processing for the significant new use can commence. If EPA determines that the significant new use is not likely to present an unreasonable risk, EPA is required under TSCA section 5(g) to make public, and submit for publication in the Federal Register , a statement of EPA's findings.

TSCA section 5(a)(2) states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:

• The projected volume of manufacturing and processing of a chemical substance.

• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.

• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.

• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

In determining what would constitute a significant new use for the chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, and potential human exposures and environmental releases that may be associated with the substances, in the context of the four bulleted TSCA section 5(a)(2) factors listed in this unit. During its review of these chemicals, EPA identified certain conditions of use that are not intended by the submitters, but reasonably foreseen to occur. EPA is designating those reasonably foreseen conditions of use as well as certain other circumstances of use as significant new uses.

By this rule, EPA is establishing certain significant new uses which have been claimed as CBI subject to Agency confidentiality regulations at 40 CFR part 2 and 40 CFR part 720, subpart E. Absent a final determination or other disposition of the confidentiality claim under 40 CFR part 2 procedures, EPA is required to keep this information confidential. EPA promulgated a procedure to deal with the situation where a specific significant new use is CBI, at 40 CFR 721.1725(b)(1) and has referenced it to apply to other SNURs.

Under these procedures a manufacturer or processor may request EPA to determine whether a specific use would be a significant new use under the rule. The manufacturer or processor must show that it has a bona fide intent to manufacture or process the chemical substance and must identify the specific use for which it intends to manufacture or process the chemical substance. If EPA concludes that the person has shown a bona fide intent to manufacture or process the chemical substance, EPA will tell the person whether the use identified in the bona fide submission would be a significant new use under the rule. Since most of the chemical identities of the chemical substances subject to these SNURs are also CBI, manufacturers and processors can combine the bona fide submission under the procedure in 40 CFR 721.1725(b)(1) with that under 40 CFR 721.11 into a single step.

If EPA determines that the use identified in the bona fide submission would not be a significant new use, i.e., the use does not meet the criteria specified in the rule for a significant new use, that person can manufacture or process the chemical substance so long as the significant new use trigger is not met. In the case of a production volume trigger, this means that the aggregate annual production volume does not exceed that identified in the bona fide submission to EPA. Because of confidentiality concerns, EPA does not typically disclose the actual production volume that constitutes the use trigger. Thus, if the person later intends to exceed that volume, a new bona fide submission would be necessary to determine whether that higher volume would be a significant new use.

EPA received public comments on the proposed rule (85 FR 15406, March 18, 2020) from four identifying entities. The Agency's responses are presented in the Response to Public Comments document that is available in the docket for this rule. EPA has made changes to the final rule as described in these comments.

EPA is establishing significant new use and recordkeeping requirements for chemical substances in 40 CFR part 721, subpart E, and in 40 CFR part 725 for one chemical substance that is a microorganism (MCAN J-19-1). In Unit IV. of the proposed SNUR, EPA provided the following information for each chemical substance:

• PMN or MCAN number.

• Chemical name (generic name, if the specific name is claimed as CBI).

• Chemical Abstracts Service (CAS) Registry number (if assigned for non-confidential chemical identities).

• Basis for the SNUR.

• Potentially useful information.

• CFR citation assigned in the regulatory text section of this final rule.

The regulatory text section of these rules specifies the activities designated as significant new uses. Certain new uses, including production volume limits and other uses designated in the rules, may be claimed as CBI.

During review of the PMNs and MCAN submitted for the chemical substances that are the subject of these SNURs and as further discussed in Unit IV. of the proposed rule, EPA identified certain other reasonably foreseen conditions of use in addition to those conditions of use intended by the submitter. EPA has preliminarily determined that the chemical under the intended conditions of use is not likely to present an unreasonable risk. However, EPA has not assessed risks associated with the reasonably foreseen conditions of use. EPA is designating these conditions of use as well as certain other circumstances of use as significant new uses. As a result, those significant new uses cannot occur without going through a separate, subsequent EPA review and determination process associated with a SNUN.

EPA is issuing these SNURs because the Agency wants:

• To have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing or processing a listed chemical substance for the described significant new use.

• To be obligated to make a determination under TSCA section 5(a)(3) regarding the use described in the SNUN, under the conditions of use. The Agency will either determine under section 5(a)(3)(C) that the significant new use is not likely to present an unreasonable risk, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by the Administrator under the conditions of use, or make a determination under TSCA section 5(a)(3)(A) or (B) and take the required regulatory action associated with the determination, before manufacture or processing for the significant new use of the chemical substance can occur.

• To be able to complete its review and determination on each of the PMN or MCAN substances, while deferring analysis on the significant new uses proposed in these rules unless and until the Agency receives a SNUN.

Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Inventory. Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the internet at https://www.epa.gov/tsca-inventory.

To establish a significant new use, EPA must determine that the use is not ongoing. The chemical substances subject to this rule were undergoing premanufacture review at the time of signature of the proposed rule and were not on the TSCA inventory. In cases where EPA has not received a notice of commencement (NOC) and the chemical substance has not been added to the TSCA Inventory, no person may commence such activities without first submitting a PMN. Therefore, for the chemical substances subject to these SNURs EPA concluded at the time of signature of the proposed rule that the designated significant new uses were not ongoing.

EPA designated March 4, 2020 (the date of web posting of the proposed rule) as the cutoff date for determining whether the new use is ongoing. The objective of EPA's approach is to ensure that a person cannot defeat a SNUR by initiating a significant new use before the effective date of the final rule.

Persons who began commercial manufacture or processing of the chemical substances for a significant new use identified on or after that date will have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons would have to first comply with all applicable SNUR notification requirements and EPA would have to take action under section 5 allowing manufacture or processing to proceed.

EPA recognizes that TSCA section 5 does not require development of any particular new information ( e.g., generating test data) before submission of a SNUN. There is an exception: If a person is required to submit information for a chemical substance pursuant to a rule, Order or consent agreement under TSCA section 4, then TSCA section 5(b)(1)(A) requires such information to be submitted to EPA at the time of submission of the SNUN.

In the absence of a rule, Order, or consent agreement under TSCA section 4 covering the chemical substance, persons are required only to submit information in their possession or control and to describe any other information known to or reasonably ascertainable by them (see 40 CFR 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. Unit IV. of the proposed rule lists potentially useful information for all SNURs listed here. Descriptions are provided for informational purposes. The potentially useful information identified in Unit IV. of the proposed rule will be useful to EPA's evaluation in the event that someone submits a SNUN for the significant new use. Companies who are considering submitting a SNUN are encouraged, but not required, to develop the information on the substance, which may assist with EPA's analysis of the SNUN.

EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol election. Furthermore, pursuant to TSCA section 4(h), which pertains to reduction of testing in vertebrate animals, EPA encourages consultation with the Agency on the use of alternative test methods and strategies (also called New Approach Methodologies, or NAMs), if available, to generate the recommended test data. EPA encourages dialog with Agency representatives to help determine how best the submitter can meet both the data needs and the objective of TSCA section 4(h).

The potentially useful information described in Unit IV. of the proposed rule may not be the only means of providing information to evaluate the chemical substance associated with the significant new uses. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA sections 5(e) or 5(f). EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.

SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:

• Human exposure and environmental release that may result from the significant new use of the chemical substances.

According to 40 CFR 721.1(c), persons submitting a SNUN must comply with the same notification requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and 721.25 (or 40 CFR 725.25 and 725.27 for an MCAN). E-PMN software is available electronically at https://www.epa.gov/reviewing-new-chemicals-under-toxic-substances-control-act-tsca.

EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers and processors of the chemical substances subject to this rule. EPA's complete economic analysis is available in the docket for this rulemaking.

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

This action establishes SNURs for new chemical substances that were the subject of PMNs. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

According to PRA, 44 U.S.C. 3501 et seq., an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register , are listed in 40 CFR part 9, and included on the related collection instrument or form, if applicable.

The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 0574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.

Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Regulatory Support Division, Office of Mission Support (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.

Pursuant to RFA section 605(b), 5 U.S.C. 601 et seq., I hereby certify that promulgation of this SNUR would not have a significant adverse economic impact on a substantial number of small entities. The requirement to submit a SNUN applies to any person (including small or large entities) who intends to engage in any activity described in the final rule as a “significant new use”. Because these uses are “new,” based on all information currently available to EPA, it appears that no small or large entities presently engage in such activities. A SNUR requires that any person who intends to engage in such activity in the future must first notify EPA by submitting a SNUN. Although some small entities may decide to pursue a significant new use in the future, EPA cannot presently determine how many, if any, there may be. However, EPA's experience to date is that, in response to the promulgation of SNURs covering over 1,000 chemicals, the Agency receives only a small number of notices per year. For example, the number of SNUNs received was seven in Federal fiscal year (FY) 2013, 13 in FY2014, six in FY2015, 12 in FY2016, 13 in FY2017, and 11 in FY2018. Only a fraction of these were from small businesses. In addition, the Agency currently offers relief to qualifying small businesses by reducing the SNUN submission fee from $16,000 to $2,800. This lower fee reduces the total reporting and recordkeeping of cost of submitting a SNUN to about $10,116 for qualifying small firms. Therefore, the potential economic impacts of complying with this SNUR are not expected to be significant or adversely impact a substantial number of small entities. In a SNUR that published in the Federal Register of June 2, 1997 (62 FR 29684) (FRL-5597-1), the Agency presented its general determination that final SNURs are not expected to have a significant economic impact on a substantial number of small entities, which was provided to the Chief Counsel for Advocacy of the Small Business Administration.

Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this action. As such, EPA has determined that this action does not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1501 et seq. ).

This action will not have federalism implications because it is not expected to have a substantial direct effect on 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).

This action will not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes, significantly or uniquely affect the communities of Indian Tribal governments, and does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175 (65 FR 67249, November 9, 2000), do not apply to this action.

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.

This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because this action is not a significant regulatory action under Executive Order 12866.

In addition, since this action does not involve any technical standards, NTTAA section 12(d), 15 U.S.C. 272 note, does not apply to this action.

This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898 (59 FR 7629, February 16, 1994).

This action is subject to the CRA (5 U.S.C. 801 et seq. ), and EPA will submit a rule report containing this rule and other required information to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons set forth in the preamble, EPA amends 40 CFR parts 9, 721, and 725 as follows:

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

The background for this action is discussed in detail in our February 24, 2021, proposal (86 FR 11212). In that document we proposed to accept the OSWI negative declaration from the Louisiana Department of Environmental Quality (LDEQ) and to amend the Code of Federal Regulations (CFR) in accordance with the requirements of the CAA. No comments were received on the February 24, 2021, proposal.

In this final action, the EPA is amending 40 CFR part 62, subpart T, to reflect receipt of the negative declaration letter from LDEQ, received on November 24, 2020, certifying that there are no existing incinerators subject to 40 CFR part 60, subpart FFFF, in its jurisdiction in accordance with 40 CFR 60.23(b), 40 CFR 62.06, 40 CFR 60.2982, and sections 111(d) and 129 of the CAA.

Under the CAA, the Administrator is required to approve a CAA section 111(d)/129 submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7411(d); 42 U.S.C. 7429; 40 CFR part 60, subparts B and FFFF; and 40 CFR part 62, subpart A. With regard to negative declarations for designated facilities received by the EPA from states, the EPA's role is to notify the public of the receipt of such negative declarations and revise 40 CFR part 62 accordingly. 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 the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

This rule also does not have Tribal implications because it will not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . 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 June 29, 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, the Environmental Protection Agency amends 40 CFR part 62 as follows:

On December 4, 2012, we published in the Federal Register (77 FR 71876) a final rule designating revised critical habitat for the northern spotted owl. Most of the areas designated as critical habitat are located on Federal lands, with a small amount of State and local government lands included in the designation. No areas of private land were designated. On August 11, 2020, we proposed a rule (85 FR 48487; referred to hereafter as the August 11, 2020, Proposed Rule) to exclude 204,653 acres (82,820 hectares) in 15 counties in Oregon from that revised designated critical habitat pursuant to the Secretary of the Interior's discretionary authority under section 4(b)(2) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq. ), and we solicited public comment on that proposed rule. On January 15, 2021, we published a final rule (86 FR 4820) (referred to hereafter as the January 15, 2021, Final Rule) revising the designated critical habitat for the northern spotted owl by excluding approximately 3,472,064 acres (1,405,094 hectares) in 14 counties in Washington, 21 counties in Oregon, and 10 counties in California. Of the over 3.4 million acres excluded, about 20,000 acres (8,094 hectares) are Federal Indian lands, recently transferred by congressional action to be held in trust for two federally recognized Tribes, and the remainder are Federal lands managed by either the Bureau of Land Management (BLM) or the U.S. Forest Service (USFS).

On March 1, 2021, we issued a final rule delaying the effective date of the January 15, 2021, Final Rule from March 16, 2021, to April 30, 2021, to allow for review of issues of fact, law, and policy raised by that final rule, and we opened a 30-day public comment period on the January 15, 2021, Final Rule, as well as on the potential for an additional delay of the effective date so as to avoid adverse consequences to conservation of the species and to Federal agencies if the exclusions were to go into effect during that rulemaking process (86 FR 11892; referred to hereafter as the March 1, 2021, Delay Rule). On March 5, a lawsuit was filed challenging the March 1, 2021, Delay Rule, American Forest Resources Council et al. v. Williams et al., No. 1:21-cv-00601 (D.D.C. March 5, 2021) ( AFRC ). Plaintiffs in that case assert that our March 1, 2021, Delay Rule extending the effective date of the January 15, 2021, Final Rule violates the Administrative Procedure Act (APA; 5 U.S.C. 551 et seq. ) and the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act of 1937 (O&C Act; 43 U.S.C. 2601 et seq. ). The AFRC plaintiffs seek implementation of the January 15, 2021, Final Rule without further delay. As of this writing, the AFRC plaintiffs have filed a motion for summary judgment, and the Government filed a brief in opposition on April 15, 2021. On March 23, 2021, a lawsuit was filed challenging the January 15, 2021, Final Rule, Audubon Society of Portland, et al. v. United States Fish and Wildlife Service, No. 3:21-cv-00443 (D. Or., March 23, 2021) ( Audubon ). Plaintiffs in that case assert that the January 15, 2021, Final Rule violates both the APA and the ESA. The Audubon plaintiffs request the court vacate the January 15, 2021, Final Rule. As of this writing, briefing has not commenced in that case.

On March 31, 2021, the comment period we opened in our March 1, 2021, Delay Rule closed. Based on the comments received, and other new information, we are extending the effective date of the January 15, 2021, Final Rule from April 30, 2021, until December 15, 2021.

As described in our March 1, 2021, Delay Rule, the January 15, 2021, Final Rule raised several questions of law, fact, and policy. We invited public comment on those questions, as well as comments on the impact of the delay of the effective date and any further delay that might be considered. We received a total of 2,237 comments through the comment period that ended March 31, 2021. The comments addressed matters of substantive law and policy under the ESA, as well as under the APA and other laws. These comments raise new issues and, in part, suggest legitimate bases for the litigation challenging the January 15, 2021, Final Rule. During this second period of delay, we will conduct factual and legal research, and address and respond to the substantive comments specific to those issues in a subsequent Federal Register publication. We intend to prepare a notice of proposed rulemaking to revise or withdraw the January 15, 2021, Final Rule to address apparent defects that the public comments raised. This includes publishing a proposed rule and seeking public comment. In this rule delaying the effective date, we summarize and respond to the substantive comments that specifically relate to the delay of the January 15, 2021, Final Rule's effective date.

In this section, we identify potential defects in the January 15, 2021, Final Rule based on the comments received and summarize the comments received generally. Comments regarding the impact of delaying the January 15, 2021, Final Rule further, or implementing it now, are addressed in greater detail below under Discussion, as those comments have the most bearing on this final rule.

We received comments that identified potential defects in the January 15, 2021, Final Rule—both procedurally and substantively. In addition, since the publication of the January 15, 2021, Final Rule, our reexamination has identified potential shortcomings of the Final Rule. Potential defects and shortcomings of the January 15, 2021, Final Rule include:

1. That the January 15, 2021, Final Rule was not a logical outgrowth of the proposed rule because among other things it excluded substantially more acres and included new rationales for the exclusions not discussed in the proposed rule.

2. That the January 15, 2021, Final Rule did not utilize the best scientific data available, including from our recent finding that the species warrants reclassification as endangered—that is, that the species is in danger of extinction throughout all or a significant portion of its range—among other new information.

3. That the January 15, 2021, Final Rule failed to address the economic benefits of maintaining the designated critical habitat particularly as to environmental benefits to communities, and thus failed to identify or address the adverse economic costs of the exclusions on these resources.

4. That the January 15, 2021, Final Rule relied upon a large-scale barred owl removal program that is not yet in place and too uncertain to rely on.

5. That the January 15, 2021, Final Rule relied upon a determination by the Secretary that the exclusions will not result in the extinction of the northern spotted owl, and that the determination was not supported by information in the record and is otherwise inconsistent with the ESA.

6. That the January 15, 2021, Final Rule inadequately explained a change in our prior findings that areas designated on lands managed under the O&C Act were essential to the conservation of the species.

Some commenters supported the January 15, 2021, Final Rule, opposed the delay in its effective date, and sought no further delay in the exclusions from critical habitat. The American Forest Resource Council (AFRC); Lewis and Skamania Counties, Washington; and Douglas County, Oregon, commented that the delay of the effective date is unlawful in that we did not provide the public with notice and an opportunity to comment. These commenters also assert that the Service did not provide a sound rationale for applying the “good cause” exceptions to providing notice and the opportunity to comment and for making the Delay Rule effective immediately rather than in 30 days pursuant to 5 U.S.C. 553(b)(3)(B) and (d)(3), respectively. Further, they commented that the Delay Rule fails to address the effects to regulated industry and the public, including AFRC, and delays providing the economic, safety, and environmental benefits of the January 15, 2021, Final Rule. Specifically, AFRC stated that the delay violates the sustained-yield mandate of the O&C Act by placing those areas substantially off-limits for timber harvesting and interferes with fuels reduction projects, thereby increasing the risk of loss of life, property, and habitat. These commenters disputed that a “logical outgrowth” problem exists with the January 15, 2021, Final Rule and stated that the changes in that final rule would have been reasonably anticipated by our request for comments in our August 11, 2020, Proposed Rule on additional exclusions we should consider. Additionally, they commented that the January 15, 2021, Final Rule should go into effect immediately because the 2012 final rule was illegal and irrational, citing concerns regarding economic impacts to communities dependent on timber harvest receipts and their assertion that areas of non-habitat were designated in the 2012 final rule.

The Confederated Tribe of the Coos, Lower Umpqua, and Siuslaw Indians (CTCLUSI) supported the revised designation that excluded Tribal lands. The Tribe expressed concern that a delay of the effective date will cause the Tribe to alter its forest management planning efforts due to the current designation of critical habitat on lands conveyed to Tribal management in 2020 from BLM. The CTCLUSI expressed that this action threatens its self-governance and Tribal sovereignty and has economic impacts on the Tribe. The CTCLUSI and Bureau of Indian Affairs expressed that Secretarial Order 3206 should be followed and that it supports the exclusion of the tribally managed lands.

Conservation groups, on the other hand, urged the Service to delay implementation of the January 15, 2021, Final Rule for 240 days until the Service revised or eliminated the rule entirely. In general, most of the comments opposed the exclusions from designated critical habitat determined in the January 15, 2021, Final Rule. Commenters raised concerns about whether the most-current scientific information provides a basis for excluding 3.4 million acres of critical habitat especially given our recent finding that the species warrants reclassification as endangered—that is, that the species is in danger of extinction throughout all or a significant portion of its range. Other comments opposing the exclusions in the January 15, 2021, Final Rule identified concerns given the increased role of the invasive barred owl in competing for the same habitat with northern spotted owls and the impact of recent wildfires in further diminishing available habitat generally. These commenters asserted that the Service should be considering expanding the areas designated as critical habitat, not reducing them. Additionally, commenters expressed concerns about relying on a barred owl removal program to support the exclusions when a large-scale barred owl removal program is likely not feasible; therefore, habitat protections and other recovery actions should remain a priority. One commenter stated that the phrase in the January 15, 2021, Final Rule that “the Secretary has not concluded that these exclusions will result in the extinction of the species” is vague, creates uncertainty, and fails to address the declining population of northern spotted owls.

In terms of the process for developing the January, 15, 2021, Final Rule, a few commenters felt the exclusions proposed in the August 11, 2020, Proposed Rule, even though a much smaller and narrower proposal, gave sufficient notice that the final exclusions could be larger and could include areas throughout the range of the owl. Many others strongly disagreed, noting the huge increase in excluded areas, and the expansion beyond just the original proposal of certain BLM-managed lands and Tribal lands in Oregon. The Washington Department of Fish and Wildlife and California Department of Fish and Wildlife also disagreed with the expanded exclusions and commented that they were not aware that exclusions might occur within their States. Commenters also noted that there were entirely new rationales for the final exclusions that were not included in the August 11, 2020, Proposed Rule, and so they had no opportunity to comment on these.

Commenters expressed that the Secretary's statement in the January 15, 2021, Final Rule that timber harvest may occur at longer intervals was speculative and unlikely to occur given current timber harvest practices. Another commenter expressed concern that the excluded areas included northern spotted owl core areas and home ranges, particularly with the BLM Harvest Land Base.

Conservation groups stated that the Service failed to conduct an economic analysis on the critical habitat revision and consider potential adverse economic impacts to communities, especially in relation to the environmental benefits associated with designated critical habitat, and that the Service instead relied on the 2012 economic analysis. These commenters also stated that the Service erred in concluding that the benefits of exclusion outweigh the benefits of inclusion and incorrectly justified its decision in part based on the O&C Act, noting longstanding Department and Solicitor legal interpretations that the designation of critical habitat does not preclude the sustained-yield timber management of O&C lands consistent with the requirements of the O&C Act (77 FR 72010, December 4, 2012). These commenters noted the Service's previous conclusions that the O&C lands and matrix lands significantly contribute to the conservation of the northern spotted owl, that recovery of the owl cannot be attained without the O&C lands, and that our modeling showed that not including many of the matrix lands in the critical habitat network resulted in a significant increase in the risk of extinction.

Conservation groups stated that the Service's conclusion that it may exclude any and all areas from a designation up until the point that doing so would result in the extinction of the species is inconsistent with the ESA in that this perception ignores the vital role that critical habitat plays in the recovery and survival of the species and is not what Congress intended. These commenters also stated that the January 15, 2021, Final Rule fails to adopt the “precautionary principle” and it does not give the species the “benefit of the doubt” as the ESA is designed to do.

Based on the comments received to date, we believe there are sufficient concerns about the merits of the January 15, 2021, Final Rule, as well as the procedural steps we took to issue it, that warrant our further consideration and action. In particular, commenters have asserted that our January 15, 2021, Final Rule failed to consider the best available science in making the requisite finding that the exclusions will not result in the extinction of the species. New information, available after the January 15, 2021, Final Rule was finalized, suggest this may be the case. As noted in the January 15, 2021, Final Rule, our findings regarding the extinction issue were summarized in the rule and further described in a memorandum from the Director to the Secretary (FWS 2021a). That memorandum relied in part on information requested and received from the Service's field office in Oregon, which has the first-line responsibility for managing issues related to the species. The field office, however, upon seeing the final Director's memo, identified areas where the Director's memo was inaccurate or unclear in terms of its characterization of the scientific information and detailed those concerns in a followup memo (see FWS 2021b). Our concerns represented in that followup memo (FWS 2021b) align with the Service's and Department's Code of Scientific and Scholarly Conduct (305 DM 3.2; 212 FW 7), which obligates Service staff to use the “most appropriate, best available, high quality scientific and scholarly data and information” to inform sound decisionmaking.

Given the potential errors in the January 15, 2021, Final Rule, as well as concerns that the rule's implementation will hasten the decline of this imperiled species and diminish its prospects for recovery, we have concluded that the January 15, 2021, Final Rule should not become effective before our further review and reconsideration is completed and we have had the opportunity to fully address the issues summarized herein. As discussed further below, to do otherwise risks the removal of that habitat in the interim. Giving the benefit of the doubt to the species when designating critical habitat reflects the institutionalized caution embedded in the ESA, which gives primacy to the protection of 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”). Also as discussed below, to allow the exclusions to become effective while we undertake additional rulemaking to revise or withdraw them will cause confusion and disruption with Federal agencies in the ESA section 7(a)(2) consultation process. The comments expressing concern with the delay in the implementation of the January 15, 2021, Final Rule focused in particular on the perceived impacts to timber production from Federal lands and effects that may flow from that. These commenters assert that the 3.4 million acres of exclusions were either appropriate or legally required under the O&C Act, and that further delay will continue to hamper Federal agency efforts to authorize and implement timber harvest on Federal lands. As we noted in the January 15, 2021, Final Rule, we acknowledge this perception of the impact of the critical habitat designation for the northern spotted owl on timber production. However, as noted in our January 15, 2021, Final Rule, “the implementation of critical habitat occurs within a complex set of factors, including volatility in global demand for wood products, general timber industry transformation, and existing regulatory and statutory requirements, among other factors” (IEc 2020). See our discussion of economic issues in the January 15, 2021, Final Rule (at 86 FR 4825-4828) and in the December 4, 2012, final critical habitat rule (at 77 FR 71945-71947). Since the species listing itself influences the impacts to timber production, we determine the economic effects that result from the critical habit designation beyond the economic effects that result from listing and other regulations (50 CFR 17.90(a)). The courts have upheld this approach, also referred to as an “incremental impacts analysis,” to determine the economic impacts of critical habitat designations ( e.g., Arizona Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160 (9th Cir. 2010)).

Even with the listing of the northern spotted owl and the designation of critical habitat on Federal lands, timber continues to be produced from Federal lands within the areas designated. For example, between 2013 and 2018, the Service completed section 7 consultations on over 100,000 acres (40,469 hectares) of timber sales within the critical habitat designation across Washington, Oregon, and California (USFWS, unpub. data). And, as described in the response to Comment 21( b ) in the January 15, 2021, Final Rule (at 86 FR 4827), average annual timber harvest on Federal lands in the range of the northern spotted owl has increased significantly in the years after the 2012 critical habitat designation, when compared with such harvest during the preceding decade.

In regard to concerns raised about limitations on fuels management and increased risk of wildfire, in the 2012 critical habitat rule the Service accounted for the drier provinces and parts of the range and recognized that forest management needs to be tailored to the forest type and climatic conditions, including the dry forests in California and the Eastern Washington Cascades. As part of the critical habitat rule, the Service expressly encouraged land managers to consider implementation of active forest management, using “ecological forestry” practices, and to restore natural ecological processes where they have been disrupted or suppressed ( e.g., natural fire regimes). This flexibility is provided to reduce the potential for adverse impacts associated with commercial timber harvest when such harvest is planned within or adjacent to critical habitat and consistent with land use plans (USDI FWS 2012b: 77 FR 71877, December 4, 2012). The Service recognizes that land managers have a variety of forest management goals, including maintaining or improving ecological conditions where the intent is to provide long-term benefits to forest resiliency and restore natural forest dynamic processes (USDI FWS 2011, p. III-45). The Service has consulted on fuels reduction, stand resiliency, and pine restoration projects in dry forest systems, for example in the Klamath Province of southern Oregon, that promote ecological restoration and are expected to reduce future losses of spotted owl habitat and improve overall forest ecosystem resilience to climate change. We concluded in these consultations that the actions do not adversely modify critical habitat. Many of these treatment areas include reduction in forest canopy to obtain desired silvicultural outcomes and meet the purpose and need of the project. In sum, the critical habitat designation supports and encourages active management of forests to address catastrophic wildfire risk where planned appropriately and informed by the best available science in order to protect communities from property losses, restore forest health, and for the long-term recovery of the owl.

Regarding the impact of a delay on Tribal activities on forest lands, the Service is available to assist Tribes in developing their forest management plans and any related consultation needs to address management and economic concerns. The Service has been working with the Tribes to address their concerns since the initial proposal to exclude areas from the critical habitat designation, and that has continued through the time of the March 1, 2021, Delay Rule. The Service is committed to upholding Secretarial Order 3206.

Lastly, with regard to comments received that the failure to implement the January 15, 2021, Final Rule precludes the BLM and USFS from implementing their obligations under the O&C Act, as we noted in the January, 15, 2021, Final Rule, there is ongoing litigation challenging BLM's management of O&C lands under the 2016 Resource Management Plans (RMPs) (BLM 2016a, 2016b). One district court has concluded that the 2016 RMPs (including their consideration of the ESA) do not conflict with the O&C Act, see Pac. Rivers v. U.S. Bureau of Land Mgmt., No. 6:16-CV-01598-JR, 2019 WL 1232835 (D. Or. Mar. 15, 2019), aff'd sub nom. Rivers v. Bureau of Land Mgmt., 815 F. App'x. 107 (9th Cir. 2020). In a separate proceeding, the U.S. District Court for the District of Columbia, in a consolidated set of cases, found that the BLM RMPs violate the O&C Act because BLM excluded portions of O&C timberland from sustained yield harvest ( i.e., the BLM allocated some timberlands to reserves instead of the Harvest Land Base); see, e.g., American Forest Resource Council et al. v. Hammond, 422 F. Supp. 3d 184 (D.D.C. 2019). The parties briefed the court on the appropriate remedy, but the court has not yet issued an order. In the absence of a remedy order or resolution of any further proceedings in that litigation, we decline to speculate on the outcome as a reason to implement the January 15, 2021, Final Rule immediately.

In sum, substantial issues have been raised that our January 15, 2021, Final Rule may be detrimental to the conservation of the northern spotted owl, a species we recently found warrants reclassifying as an endangered species in danger of extinction throughout its range. There are also substantial concerns that we failed to provide the public with adequate notice and opportunity to review and comment on the extent of, and reasons for, the change from our proposed exclusion of approximately 200,000 acres (80,937 hectares) to the approximately 3.4 million acres (1.3 million hectares) excluded by our January 15, 2021, Final Rule. This additional delay to consider these exclusions and conduct rulemaking to either revise or withdraw them will not result in a long-term or irreversible economic impact; timber harvest already scheduled to occur on BLM and USFS land will continue to proceed as planned. We are, therefore, further delaying the effective date of the January 15, 2021, Final Rule that revised the designation of critical habitat for the northern spotted owl to give us the needed time to fully consider questions of law, policy, and fact in regard to that final rule, and allow us to take action to remedy procedural and substantive defects identified in order to provide for conservation of the species and avoid undue disruption in the required consultation process with Federal agencies. The effective date of the January 15, 2021, Final Rule, as modified by the March 1, 2021, Delay Rule (86 FR 11892), was April 30, 2021. With this document, we are delaying the effective date of the January 15, 2021, Final Rule, until December 15, 2021. During this time, we expect to complete our review and reconsideration of the January 15, 2021, Final Rule, and to undertake and complete new notice and comment rulemaking as needed to address the substantive and procedural questions raised.

We note that the Office of Management and Budget deemed the January 15, 2021, Final Rule to be economically significant under Executive Order 12866. However, we do not consider this delay rule to be economically significant.

In our March 1, 2021, Delay Rule, we invited public comments on the impact of the initial delay of the January 15, 2021, Final Rule. We also expressly sought comment on whether we should extend the effective date of the January 15, 2021, Final Rule beyond April 30, 2021, and, if so, for how long and what, if any, the impacts of that delay would be. In addition, we identified the legal authority under which we promulgated it, and we described the subjects and issues involved. As a result, “[f]ormal labels aside, the [March 1, 2021, Delay rule] contained all of the elements of a notice of proposed rulemaking as required by the APA” ( Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2384 (2020)). We have now considered and addressed in this final rule the comments regarding the initial delay and the potential impacts of an additional delay. As a result, seeking additional public comment on the delay until December 15, 2021, would be unnecessary and duplicative, and is not required by the APA. It is, therefore, not necessary to assess whether this second delay in the effective date of the January 15, 2015, Final Rule meets the “good cause” exceptions to notice and comment rulemaking of the APA. Nonetheless, out of an abundance of caution, we again review our action here against the good-cause exception. We also in this section evaluate whether we have good cause to make this final rule effective immediately, rather than make it effective in 30 days.

Our implementation of this action extending the effective date of the January 15, 2021, Final Rule from April, 30, 2021, to December 15, 2021, without opportunity for further public comment, effective immediately upon publication in the Federal Register , is consistent with the good-cause exceptions provided in the APA. Pursuant to 5 U.S.C. 553(b)(3)(B) and (d)(3), we have determined that good cause exists to forgo the requirements to provide additional prior notice and an opportunity for public comment on this delay in the effective date of the January 15, 2021, Final Rule, and to make this action announcing the delay effective immediately upon publication.

Under the totality of the circumstances presented here, notice and comment would be unnecessary, as well as impracticable and contrary to the public interest, because the public has had notice of and opportunity to comment on further extension of the effective date of the January 15, 2021, Final Rule, and taking the time to provide for additional public notice and comment would thwart the conservation purposes of the ESA, create confusion and disruption for Federal agencies in implementing the ESA section 7(a)(2) consultation process, and prevent the Service from performing its functions.

First, additional notice and comment is unnecessary. As noted above, our March 1, 2021, Delay Rule expressly provided notice that we might further delay the effective date, and also sought public comment on that possibility. We received public comments on that question and considered them in this final rule. As also noted above, this is all that the APA requires. But even if this process did not constitute technical compliance with the APA, and a showing of good cause were required, good cause exists here because further public notice and additional comment is unnecessary given the opportunity provided pursuant to the March 1, 2021, Delay Rule.

Second, additional notice and comment is also impractical and contrary to the public interest. As noted in our March 1, 2021, Delay Rule (86 FR 11892), we were reviewing whether the determinations made in the January 15, 2021, Final Rule were a “logical outgrowth” of the August 11, 2020, Proposed Rule. In addition, there has been substantial litigation in the past on critical habitat designations for this species, and we have now in fact been sued regarding the legality of the January 15, 2021, Final Rule. As identified above, we conclude that there are likely procedural and substantive defects in 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 undertaking efforts to address and rectify the defects in the January 15, 2021, Final Rule. 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 ESA to provide required protections for listed species. 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 proceed to undertake (or to authorize others to undertake) activities that would remove that habitat before the Service could 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 January 15, 2021, Final 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 Federal agency activities.

In designated critical habitat for the northern spotted owl in Washington, Oregon, and California, at least 35 separate section 7 consultations have been completed or are underway for ongoing and proposed Federal actions addressing a range of activities—including both forest management to improve fire resiliency and oversee commercial timber harvest. If the 3.4 million acres (1.3 million hectares) were excluded from the critical habitat designation on April 30, 2021, those Federal agencies would no longer be required to address whether the activities destroy or adversely modify the excluded critical habitat and could proceed with such activities. If the Service, following its review of the January 15, 2021, Final Rule, again modifies the exclusions or withdraws them through rulemaking, these Federal agencies would need to reinitiate section 7 consultation to determine if their ongoing activities impact the revised critical habitat, and would be constrained by section 7(d) of the ESA from certain “irreversible or irretrievable commitment of resources” during the consultation period. This kind of uncertainty in knowing what areas are within or outside of the critical habitat designation creates project delays that can be avoided by maintaining the status quo of the current designated habitat while the Service reconsiders the January 15, 2021, exclusions.

The ESA does not require exclusion of areas from critical habitat—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 January 15, 2021, Final Rule excluding areas from critical habitat for the northern spotted owl does not delay compliance with a mandate of the ESA. Delaying the effective date of the January 15, 2021, Final Rule, which purported to exercise that discretionary section 4(b)(2) authority, simply preserves the status quo while we undertake additional review and undertake additional actions as needed 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 fact that notice and comment have now occurred with regard to a delay in the effective date of the January 15, 2021, Final Rule; the now-pending judicial review; our concerns about substantive defects in the rule and the associated potential to affect the Service's execution of its statutory functions by having an impact on ESA-listed species; the likelihood of a “logical outgrowth” deficiency in the January 15, 2021, Final Rule; and concerns expressed by affected States regarding a lack of opportunity to comment, among other issues—indicate that there is good cause to forgo notice and comment procedures because it is unnecessary, impracticable, and contrary to the public interest for the Service to provide another notice and opportunity to comment on a further extension of the effective date 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's legislative history indicates that the purpose of the notice requirement at 5 U.S.C. 553(d)(3) is to “afford persons affected a reasonable time to prepare for the effective date of a rule or rules or to take any other action which the issuance of rules may prompt.” S. Rep. No. 752, 79th Cong., 1st Sess. 201 (1946) and H.R. Rep. No. 1980, 79th Cong., 2nd Sess. 259 (1946). 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. Delaying the effective date provides certainty for the Federal agencies involved in ESA section 7 consultations during the delay period while the Service addresses issues with the January 15, 2021, Final Rule. The Service is committed to ensuring transparency and providing certainty in the adequacy and finality of the January 15, 2021, Final Rule. Thus, it would be contrary to the public interest for the January 15, 2021, Final Rule to go into effect, with its accompanying changes in analyses of impacts, while the January 15, 2021, Final Rule remains under review and subject to revision or withdrawal. The potential for fluctuating between the presence and absence of a requirement for Federal agencies to consult would lead to uncertainty and confusion and a potential and unnecessary increase in administrative costs.

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 April 30, 2021. That effective date would create the same issues as discussed in the preceding paragraphs, i.e., thwart the conservation purposes of the ESA, create confusion and disruption for Federal agencies in implementing the ESA section 7(a)(2) consultation process, and prevent the Service from performing its functions under the Act.

In the March 1, 2021, Delay Rule, the Service anticipated that a second delay might be necessary (see 86 FR 11892). For the reasons stated above, we 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 December 15, 2021.

A list of the references cited in this document may be found at http://www.regulations.gov under Docket No. FWS-R1-ES-2020-0050.

The authorities for this action are 5 U.S.C. 553 and 16 U.S.C. 1531-1544 unless otherwise noted.

Atlantic HMS are managed under the dual authorities of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act (ATCA). The implementing regulations for the 2006 Consolidated Atlantic HMS FMP and its amendments are at 50 CFR part 635.

In response to requests from HMS Advisory Panel members and other members of the public, NMFS undertook this rulemaking to provide consistency between the three open access swordfish handgear permits, all of which allow similar gears to be used within U.S. Atlantic and Caribbean waters, and to provide increased fishing opportunities for sharks in the U.S. Caribbean. Overall, this final rule should increase administrative efficiencies and increase management flexibility by managing the swordfish commercial open access permits in the different regions similarly. Additionally, this final rule should improve the efficiency of swordfish and shark management in all regions, while continuing to prevent overfishing.

The proposed rule published on April 27, 2020 (85 FR 23315). The details of this rulemaking can be found in that proposed rule, and are not repeated here. Additional information can be found in the Final EA supporting this action, along with the 2006 Consolidated HMS FMP and its amendments [see ADDRESSES ].

The comment period for the proposed rule closed on June 26, 2020. NMFS held two public hearings via webinar, and consulted with the HMS Advisory Panel. In addition to the comments received during the webinars and from the HMS Advisory Panel, NMFS received 29 written comments, including comments from the Puerto Rico Department of Natural Resources, Florida Fish and Wildlife Conservation, environmental non-governmental organizations, recreational and commercial fishermen, and the general public. The comments received, and responses to those comments, are summarized below in the Response to Comments section.

After considering the management goals of this final action and public comments, NMFS is adjusting some of the proposed measures. Specifically, for swordfish, this final rule will increase the default retention limit to 18 swordfish per vessel per trip for the HMS Commercial Caribbean Small Boat and Swordfish General Commercial permit holders, and HMS Charter/Headboat permit holders with a commercial endorsement on a non-for hire ( i.e., commercial) trip in all regions except for the Florida Swordfish Management Area, which will remain at 0 swordfish per vessel per trip. This measure is a change from the proposed retention limit of six swordfish per vessel per trip for all regions except for the Florida Swordfish Management Area. For sharks, this rule will establish a default retention limit of three non-prohibited smoothhound sharks, non-blacknose small coastal sharks, or large coastal (other than hammerhead, silky, and sandbar) sharks (combined) per vessel per trip for the HMS Commercial Caribbean Small Boat permit holders. This measure is a change from the proposed default retention limit of three smoothhound and/or tiger sharks (combined) per vessel per trip for the HMS Commercial Caribbean Small Boat permit holders. Lastly, this action will establish inseason adjustment procedures for the HMS Commercial Caribbean Small Boat permit swordfish and shark retention limits. This measure is unchanged from the proposed rule, and will allow NMFS to make inseason adjustments to the retention limits, as is already allowed for other swordfish and shark permits. These final actions are expected to provide fishermen with greater flexibility, establish greater consistency across regions, and improve the efficiency of swordfish and shark management, while continuing to prevent overfishing.

NMFS received 29 written comments from commercial and recreational fishermen, Regional Fishery Management Councils (FMCs), states and territories, environmental non-governmental organizations, scientists, the Atlantic HMS Advisory Panel members, and other interested parties during the public comment period. All written comments can be found at http://www.regulations.gov. Comments are summarized below by major topic, together with NMFS' responses.

Comment 1: NMFS received multiple comments stating that NMFS should prefer the No Action alternative (Alternative A1) regarding the inseason adjustment process. In addition, the Puerto Rico Department of Natural and Environmental Resources (PR DNER stated that the inseason retention limit adjustment process should not be changed because of the lack of data in the U.S. Caribbean region.

Response: NMFS disagrees that a lack of data in the U.S. Caribbean region negates the ability to adopt inseason adjustment criteria. Alternatives A2 and A3 simply establish inseason adjustment criteria. Any inseason adjustment to the retention limits would be based upon the best scientific information available, consistent with the Magnuson-Stevens Act and other applicable laws. These data include the relevant shark and swordfish status information, dealer reports, and U.S. Caribbean trip ticket data. Similarly, if NMFS maintains the No Action alternative and adjusts the retention limit via a framework action, NMFS would use the same data. Under NMFS' preferred alternatives A2 and A3, the adjustment process would be more flexible and the retention limits could be adjusted more quickly than would be done under the existing process. These alternatives could result in an increased likelihood that the retention limits would be adjusted as needed throughout the year, reducing administrative costs and potentially providing more timely management changes to swordfish and shark fishermen. This flexibility in reacting to the available data can assist in maintaining sustainable stocks and ensuring quotas are not exceeded.

Additionally, National Standard 3 requires that, to the extent practicable, an individual stock of fish be managed as a unit throughout its range and interrelated stocks of fish be managed as a unit or in close coordination. The preferred alternatives (Alternatives A2 and A3) make management consistent throughout the range of the swordfish and shark stocks within the U.S. Exclusive Economic Zone (EEZ) as well as in state waters, because Federal HMS permit holders must comply with Federal regulations no matter where they fish, unless a state has measures that are more restrictive.

Comment 2: NMFS received suggestions regarding potential ways to adjust the swordfish retention limit in order to ensure the swordfish quota is not exceeded. One suggestion was starting with an 18 fish per vessel per trip retention limit for all affected permit holders and reducing that to six fish per vessel per trip when 80 percent of the quota is reached. Another suggestion was a 15 swordfish retention limit that drops to six fish once 50,000 lb of swordfish has been landed. Another suggestion was a 25-mt set-aside quota for the affected permit holders; the retention limit would be reduced to zero once that set-aside quota was reached.

Response: Currently, before making any inseason adjustments to regional retention limits for the Swordfish General Commercial permit, NMFS considers the inseason adjustment criteria and other relevant factors codified in 50 CFR 635.24(b)(4)(iv)(A) through (G). NMFS uses these criteria when determining whether retention limits need to be modified in the middle of a fishing season. Under preferred Alternative A2, NMFS would adopt identical inseason adjustment criteria to allow for the adjustment of the regional swordfish retention limit for the HMS Commercial Caribbean Small Boat permit as well. While the suggestions provided are not explicitly incorporated into the inseason adjustment criteria, they are consistent with the factors NMFS considers before making any inseason adjustments. For instance, if NMFS determines that the retention limit for Swordfish General Commercial, HMS Commercial Caribbean Small Boat, and/or HMS Charter/Headboat permit holders could lead to an overharvest of the swordfish quota or lead to limited opportunities for vessels in other regions, as indicated under criteria C (the estimated amounts by which quotas for other categories of the fishery might be exceeded) or criteria F (effects of catch rates in one region precluding vessels in another region from having a reasonable opportunity to harvest a portion of the overall swordfish quota), NMFS can reduce the retention limit inseason to reduce the rate of landings under the inseason adjustment criteria in this final action. Based on current domestic quota utilization trends and the fact that the swordfish quota has not been fully utilized since 2003, NMFS does not see a reason to create a separate quota category at this time.

Comment 3: NMFS received comments supporting an increase in the swordfish retention limit to 18 fish per vessel per trip for the Swordfish General Commercial, HMS Commercial Caribbean Small Boat, and HMS Charter/Headboat permit holders. Commenters noted that the United States does not fully harvest the swordfish quota and that increasing the swordfish retention limit for these vessels could better utilize the quota. Commenters, including the Florida Fish and Wildlife Conservation Commission, also supported maintaining the zero swordfish retention limit in the Florida Swordfish Management Area.

Response: As a result of public comments and further consideration of the primary objectives of this rulemaking, NMFS changed the preferred swordfish retention limit alternative from Alternative B2 to Alternative B4. Under Alternative B4, the default swordfish retention limit for HMS Commercial Caribbean Small Boat permit holders, and Swordfish General Commercial, and HMS Charter/Headboat permit holders outside of the Florida Swordfish Management Area would be 18 swordfish per trip. In the Florida Swordfish Management Area, the default swordfish retention limit would be zero fish for Swordfish General Commercial and HMS Charter/Headboat permit holders. NMFS noted in the proposed rule that, with regard to Alternatives B3 and B4, it was not yet clear that Swordfish General Commercial permit holders or HMS Commercial Caribbean Small Boat permit holders would benefit from a retention limit range of 0 to 18 swordfish per vessel per trip or if a default retention limit of 6 to 18 swordfish per trip was appropriate for the U.S. Caribbean region. Public comments indicated that a retention limit range of 0 to 18 swordfish per vessel per trip and a default retention limit of 18 swordfish per trip for the U.S. Caribbean region would be beneficial and appropriate for Swordfish General Commercial permit holders and HMS Commercial Caribbean Small Boat permit holders.

The change in preferred alternatives from B2 to B4 was based on five considerations. First, one of the goals of this rulemaking is to provide consistency in swordfish retention limits among the three open access swordfish handgear permits. Thus, if an increased default retention limit for one permit is implemented, a similar default retention limit increase for the other permits would be implemented, provided such a change is also supported. Second, the North Atlantic swordfish stock is not overfished nor is it experiencing overfishing, and therefore the stock can support higher removal levels within established quotas without jeopardizing the sustainability of the stock. Third, an increase in the retention limit to 18 swordfish per vessel per trip for Swordfish General Commercial and HMS Charter/Headboat permit holders outside of the Florida Swordfish Management Area could provide additional fishing opportunities because trips that target swordfish farther offshore will be more likely to be profitable due to the higher number of swordfish that could be landed and sold. Fourth, the HMS Commercial Caribbean Small Boat (CCSB) permit is currently underutilized by commercial fishermen in the region, and a greater retention limit of swordfish that matches the retention limit of other permits could incentivize use of the HMS Commercial Caribbean Small Boat permit. If more fishermen in the region obtain the permit and comply with the reporting requirements, NMFS and territorial governments might receive better, more complete landings information. Fifth, this rule is also finalizing adaptive management measures (Alternative A2) that would allow NMFS to quickly adjust swordfish retention limits regionally (down to zero fish, if necessary) in response to landings information.

Comment 4: NMFS received comments that swordfish and shark retention limits (Alternatives C1-C4) should not be increased until affected vessels are required to report catch in logbooks and have a vessel monitoring system (VMS) unit on board.

Response: While logbooks and VMS units can provide important information for sustainable management of HMS, their application may not be appropriate in all fisheries. In the case of HMS Commercial Caribbean Small Boat permit holders, revenues are not high enough to justify the high price of a VMS unit, which has an initial cost of over $3,000 in addition to monthly and annual service fees. The HMS Commercial Caribbean Small Boat permit was implemented to facilitate improved HMS landings data. While a logbook could provide important information in the future, the near-term priority is to gather basic landings data to help track HMS fishing mortality. Furthermore, additional logbook and VMS requirements could disincentivize fishermen from obtaining the HMS Commercial Caribbean Small Boat permit, which would be counterproductive to the permit's purpose. Currently, Commercial Caribbean Small Boat permit holders are required to report landings through territorial reporting programs.

Similarly, revenue in the Swordfish General Commercial and commercial HMS Charter/Headboat swordfish fisheries do not justify the high cost of a VMS unit. With an initial cost of $3,000 (not including monthly and annual service fees), a fisherman would need to sell 615 lb dw of swordfish to cover the cost (assuming average ex-vessel price of $4.88 per pound of swordfish). The current swordfish minimum length is equivalent to a 33 pound dressed weight fish, thus, the fishermen would need to land and sell 19 swordfish just to cover the cost of the VMS unit (615 lb dw/33 lb minimum size = 18.6), which is more than the maximum retention limit. Thus, a fisherman would need to take approximately two trips just to cover the cost of the VMS unit. Data indicate that between 2014 and 2020, Swordfish General Commercial permit holders who retain swordfish conduct on average 29 trips per year. During that same time period, on average, approximately 15 vessels (out of 665 permitted vessels) were active annually in the fishery. Thus, the typical Swordfish General Commercial permit holder engages in fewer than two trips per year, and the cost of a VMS unit would exceed their annual ex-vessel revenue. The Agency expects this to be the case with HMS Commercial Caribbean Small Boat permit holders too, but does not have the data necessary to perform an analogous economic analysis. As participation in these fisheries increases, data collection methodologies will be reassessed.

Regarding logbook requirements, NMFS continues to monitor the fisheries and may increase logbook reporting requirements in the future, especially given the move towards electronic logbooks throughout the Agency and overlapping requirements between regions. For example, effective January 5, 2021, all South Atlantic Fishery Management Council and Gulf of Mexico Fishery Management Council Charter/Headboat permit holders are required to report in an electronic logbook (July 21, 2020; 85 FR 44005). Gulf of Mexico Council permit holders will also be required to submit hail in and hail out declarations via a VMS or VMS-type device that is capable of logging location data, although that requirement is delayed indefinitely per the July 21, 2020 final rule (85 FR 44005). Any HMS Charter/Headboat permit holders that are also permitted in for-hire South Atlantic or Gulf of Mexico Council fisheries will be required to abide by these reporting requirements.

Comment 5: NMFS received multiple comments stating that the swordfish retention limit for HMS Commercial Caribbean Small Boat permit holders should not be increased above six fish per trip because the vessels engaged in that fishery cannot safely carry more than six swordfish. One commenter suggested that vessels too small to carry six or more swordfish may transfer the fish to another vessel while at sea, and that such transfers could encourage excessive landings and reduce prices in the local markets, causing economic harm. Other commenters stated that some vessels can safely hold more than 6 swordfish and that vessel safety weight limits should be left to the discretion of the vessel operator.

Response: At the proposed rule stage, NMFS preferred the alternative that would increase the retention limit range to zero to six swordfish per vessel per trip and the default retention limit to six swordfish per vessel per trip, for all three permits, because it was not clear that these permit holders would be able to benefit from a higher retention limit range. NMFS specifically requested public comments on the swordfish retention limits for these permits, and in particular, whether vessels with these permits could support the extra weight of additional swordfish. Public comments indicated that Swordfish General Commercial permit holders, HMS Charter/Headboat permit holders, and HMS Commercial Caribbean Small Boat permit holders would benefit from a retention limit range of 0 to 18 swordfish per vessel per trip, and that a default retention limit of 18 swordfish per trip was appropriate for the U.S. Caribbean region because some vessels can safely hold more than 6 swordfish. After reviewing all the public comments, NMFS feels Alternative B4, setting a retention limit range of 0 to 18 swordfish per vessel per trip and a default retention limit of 18 swordfish per vessel per trip, is the most appropriate alternative to implement. In part, this is because it will give fishermen the greatest opportunity to harvest the North Atlantic swordfish quota. Additionally, an increase in the default retention limit to 18 swordfish per vessel per trip for Swordfish General Commercial and HMS Charter/Headboat permit holders outside of the Florida Swordfish Management Area could provide additional fishing opportunities, because trips that target swordfish farther offshore will now be profitable. Furthermore, the HMS CCSB permit is currently underutilized by commercial fishermen in the region, and a greater swordfish retention limit that matches the retention limit of other permits could incentivize use of the HMS CCSB permit. If more fishermen in the region obtain the permit and comply with the reporting requirements, NMFS and territorial governments might receive better, more complete landings information. These social, economic, and administrative benefits would not undermine the sustainable harvest of North Atlantic swordfish. As detailed in Section 3.1 of the Final EA, the North Atlantic swordfish stock is not overfished and overfishing is not occurring. The United States has not harvested its domestic allocation of the stock in a number of years and the increased harvest by Swordfish General Commercial permit holders, HMS Charter/Headboat permit holders, and HMS Commercial Caribbean Small Boat permit holders would not jeopardize the sustainability of the fishery. Furthermore, the inseason adjustment criteria give NMFS the ability to adjust retention limits regionally (down to zero fish, if necessary) in response to landings information. The healthy status of the North Atlantic swordfish stock, in concert with the inseason adjustment criteria, provide confidence that Alternative B4 would not lead to overfishing.

Safety at sea is an important consideration in fisheries management, and National Standard 10 compels the Agency to consider the issue. To reduce safety at sea concerns, management measures are specifically designed to give fishermen the flexibility to safely operate their vessels. In HMS fisheries, mitigating safety concerns has not included regulations limiting catch retention based on vessel weight capacity. Instead, retention limits are set based on analyses of ecological and socioeconomic impacts, leaving the weight capacity compliance to the discretion of the vessel operator. Provided compliance with applicable U.S. Coast Guard regulations, the HMS Management Division typically defers to vessel operators as to how best to safely operate their vessels and will do so in this rule as well.

The transfer of any HMS at sea or in port from one vessel to another vessel is expressly prohibited in the regulations at 50 CFR 635.29(a) and 635.71(a)(61).

Comment 6: One commenter expressed concern about setting the swordfish retention limit on a per trip basis because fishermen could take multiple trips per day, increasing the harvest of swordfish. As a solution, the commenter suggested a daily swordfish retention limit.

Response: A daily swordfish retention limit is not needed, because it is unlikely that fishermen would engage in multiple trips per day and gears authorized under the relevant permits are unlikely to catch large numbers of swordfish. As indicated in the response to Comment 3 above, there are limited geographic areas where swordfish are available close enough to shore to allow fishermen to make multiple trips per day. One of these areas is the south Florida region. However, the retention limit in that area under the Swordfish General Commercial permit is zero swordfish. The authorized gears use a limited number of hooks and are constantly tended by fishermen who quickly boat the swordfish once hooked. For these reasons, the gears authorized under these permits are unlikely to catch large numbers of swordfish. Swordfish General Commercial permit holders may use bandit, handline, harpoon, rod and reel, and green-stick gear when targeting and retaining swordfish. HMS Charter/Headboat vessel permit holders with a commercial sale endorsement may use rod and reel and handline under open-access swordfish commercial retention limits when on a commercial trip. HMS Commercial Caribbean Small Boat permit holders may use bandit, handline, harpoon, rod and reel, and buoy gear when targeting and retaining swordfish. Note that buoy gear in the context of HMS fisheries is defined in 50 CFR 635.2 as a fishing gear consisting of one or more floatation devices supporting a single mainline to which no more than two hooks or gangions are attached. The Caribbean Fishery Management Council is currently considering authorizing up to 25 hooks per vertical line in Council managed fisheries. More than two hooks would not be allowed when targeting and retaining swordfish, and NMFS will communicate this difference with targeted outreach in the U.S. Caribbean.

Furthermore, the North Atlantic swordfish stock is not overfished and not experiencing overfishing. The United States has not harvested its domestic allocation of swordfish quota in a number of years, and there is plenty of room under the quota for additional effort and landings. Thus, even if a small number of fishermen are able to make multiple trips per day, the increase in harvest would not impact the sustainability of the North Atlantic swordfish stock.

Comment 7: NMFS received several comments about the stock status of North Atlantic swordfish, including whether a sub-population of swordfish existed in the U.S. Caribbean. These comments questioned whether the North Atlantic swordfish stock was healthy enough to support increased effort and harvest. The PR DNER submitted a comment stating that the size of sexual maturity has decreased for females, which could be a sign of an overfished stock. The PR DNER stated that the retention limit for swordfish should not be increased until Caribbean-specific research is performed on the stock.

Response: The North Atlantic swordfish stock is not overfished and is not experiencing overfishing. The International Commission for the Conservation of Atlantic Tunas (ICCAT) Standing Committee on Research and Statistics (SCRS) most recently assessed the stock in 2017. This assessment informed an Atlantic-wide total allowable catch (TAC) and the resulting domestic allocation of swordfish quota. Collectively, ICCAT Contracting Parties have not harvested the Atlantic-wide swordfish TAC in a number of years. Similarly, the United States has not harvested its full domestic allocation of swordfish quota. Thus, additional effort and landings would not jeopardize the sustainability of the North Atlantic swordfish stock.

The 2017 ICCAT SCRS North Atlantic swordfish stock assessment, which is the best scientific information available, considered all swordfish north of five degrees north latitude to be a single stock. The data considered in the assessment did not indicate any sub-populations in the Caribbean. NMFS is unaware of any reports, data, or publications suggesting a decrease in size of maturity for female swordfish. Furthermore, ICCAT has not indicated that there are any signs of a decrease of size at maturity for female swordfish, with the North Atlantic swordfish stock currently not overfished or undergoing overfishing.

Comment 8: NMFS received a number of comments regarding the shark retention limit for the HMS Commercial Caribbean Small Boat permit. Several commenters supported the No Action alternative to not allow shark retention under the HMS Commercial Caribbean Small Boat permit. Some of these commenters stated that sharks in the U.S. Caribbean are more valuable for tourism (including recreational SCUBA diving), recreational fishing, and ecological services than as a harvested resource. Other commenters indicated that a thorough analysis on the impacts to shark stocks and protected resources is needed before increasing the shark retention limit. NMFS also received a number of comments generally supporting the retention of sharks under the HMS Commercial Caribbean Small Boat permit. Some commenters stated that a shark fishery exists in the region, with vessels being able to safely hold two to six sharks, so authorizing the retention of sharks could incentivize fishermen to obtain the appropriate permit and to report their catch for quota tracking, species diversity estimates, and fishery-dependent data collection. NMFS also received multiple comments stating that a combination of Alternatives C2 and C3 should be implemented for HMS Commercial Caribbean Small Boat permit holders. Commenters stated that the species included under Alternative C2 (smoothhounds and tiger sharks) are too limited and do not include the full range of species that can be sustainably harvested in the U.S. Caribbean. Commenters stated that smoothhound catch data reflect incidental catch and that fishermen are more likely to target tiger sharks than smoothhound sharks. Thus, an allowance for the combined retention of smoothhound sharks and tiger sharks will likely direct fishing pressure only to tiger sharks, possibly leading to unsustainable catch. Commenters suggested allowing retention of more authorized shark species including small coastal, large coastal, pelagic, and smoothhound sharks. The commenters also stated that the species list under Alternative C3 (non-prohibited large coastal, small coastal, pelagic, and smoothhound sharks) was closer to the appropriate list of allowable shark species, but the retention limit of six sharks was too high, with HMS Commercial Caribbean Small Boat vessels being able to hold two to six sharks. These commenters suggested a hybrid of the two alternatives would work, with an adjustable retention limit of up to three sharks of the following species groups: Non-prohibited large coastal sharks (no hammerhead, silky, or sandbar sharks), small coastal sharks, and smoothhound sharks. Some of these commenters, including PR DNER, were also specifically concerned about the stock status of hammerhead, oceanic whitetip, and shortfin mako sharks, and suggested waiting until more is known about whether these species can tolerate increased harvest levels before any changes are made to the regulations. Some commenters stated that retention of pelagic sharks should not be authorized.

Response: NMFS agrees that allowing a limited amount of shark retention could incentivize fishermen, who are already landing sharks, to obtain the appropriate permit and report landings. NMFS disagrees that the commercial harvest of shark should not be allowed solely based on the potential economic benefits of tourism and recreational fishing. Under the Magnuson-Stevens Act, NMFS strives to balance the needs of recreational and commercial fishing communities while also allowing for the opportunity to catch optimum yield. Given that many shark quotas are currently not being fully harvested, allowing for limited landings, which is also expected to improve compliance and data collection, is appropriate. Therefore, based on public comment regarding the species that should be allowed, NMFS developed a new preferred alternative, Alternative C4. This new preferred alternative is a hybrid of proposed Alternative C2 and Alternative C3. Under Alternative C4, NMFS establishes a retention limit range of zero to three non-prohibited large coastal, small coastal, and/or smoothhound sharks (combined) per vessel per trip, with a default retention limit of three sharks per vessel per trip. Prohibited sharks and pelagic (including shortfin mako and oceanic whitetip sharks), hammerhead, silky, blacknose, and sandbar sharks may not be retained under this alternative. This alternative is preferred because it would be responsive to public comments and would meet management goals by providing increased fishing opportunities to harvest sustainably managed sharks at incidental levels while still avoiding overharvest of specific species. This alternative is similar to Alternatives C2 and C3, with regional retention limits within the range discussed for all of the alternatives. Alternative C4 is anticipated to have neutral direct ecological impacts to shark stocks in the short- and long-term for several reasons. First, the quotas for the different shark management groups are not being modified, and fishermen would continue to be limited by the established shark quotas for these sustainably managed species. The quotas for many of these species have not been fully harvested in recent years. Therefore, additional retention of species under the large coastal (except hammerhead, silky, and sandbar sharks), small coastal (except blacknose sharks), and smoothhound shark management groups should not impact the sustainability of the stocks. Second, the retention limits in Alternative C4 would not likely increase landings to a level that may adversely affect shark populations given the limited range and hold capacity of the small-scale vessels involved. Additionally, shortfin mako and oceanic whitetip sharks, which are both in the pelagic shark management group, would not be authorized for retention and would not be adversely impacted by this action. Third, this rule is also finalizing adaptive management measures (Alternative A3) that would allow NMFS to quickly adjust shark retention limits regionally (down to zero fish, if necessary) in response to landings information. Fourth, NMFS anticipates that allowing the retention of sharks under the HMS CCSB permit will not only provide increased fishing opportunities to harvest sustainably managed sharks, but also improve catch and landings data in the U.S. Caribbean shark fishery as NMFS expects more fishermen to acquire the HMS CCSB permit given the ability to retain sharks. Increased participation and permitting would likely lead to improved data collection, more accurate stock assessments, and better management of the U.S. Caribbean shark fishery. Lastly, NMFS would carry out extensive outreach and education to fishermen and government agencies in the U.S. Caribbean region following implementation of this final action to address species identification and compliance concerns.

Comment 9: Some commenters, including the PR DNER, expressed concern that fishermen in the U.S. Caribbean are unable to properly identify shark species. These commenters, including the PR DNER, suggested that shark identification education is an important priority for management.

Response: NMFS is aware of the difficulty shark fishermen, including those in the U.S. Caribbean region, may have in accurately identifying shark species, and agrees with the commenters that education and outreach is a priority for management. As part of this rulemaking, NMFS will aim to improve species identification through extensive training, outreach, and education to fishermen and territorial partners in the U.S. Caribbean region. Specifically, NMFS plans to work with State and territorial agencies as well as the Caribbean Fishery Management Council to ensure that outreach and education materials on shark identification, safe handling, shark fishing regulations, and proper reporting reaches shark fishermen. In addition, NMFS intends to make all outreach and educational material are available in both English and Spanish. This may include further developing educational materials, such as Caribbean HMS identification guides and brochures, that will be distributed at locations that fishermen frequent, and to individuals that acquire the HMS Commercial Caribbean Small Boat permit. NMFS anticipates that the extensive education and outreach measures will improve species identification and accurate reporting of catches of sharks in the U.S. Caribbean region.

Comment 10: NMFS received a comment expressing concern about shark catch in pupping and nursery areas. The commenter indicated that juveniles of threatened and endangered sharks are known to be caught incidentally during local small-scale fisheries interactions within pupping and nursery areas of coastal areas of Caribbean Islands. The commenter stated that shallow mangrove habitats and estuarine areas are easily accessible to local net fishermen and anglers from shore. However, the number and effort of these gears is unknown due to lack of species-specific data on recreational fisheries. The presence of small juvenile specimens of multiple shark species ( e.g., blacktip, lemon, hammerheads, oceanic whitetip, silky, and dusky) in the commercial fisheries suggest that U.S. Caribbean waters serve as critical nursery habitats for sharks. As such, NMFS should consider the importance of the U.S. Caribbean for the sustainability or recovery of the shark species and factor this information into the stock assessments. The commenter is concerned that human related impacts may limit the survival of juvenile sharks, undermining the populations' ability to maintain sustainable fisheries.

Response: NMFS agrees that, based on the limited information available, there are likely pupping and nursery areas of sharks found within the U.S. Caribbean, and that some juvenile sharks will likely be caught by commercial and recreational fishermen. Some of these sharks may be threatened species, but there are no endangered shark species found within the U.S. Caribbean. Specifically, within the U.S. Caribbean, two shark species are listed as threatened under the Endangered Species Act (ESA). These species are the Central and Southwest Atlantic distinct population segment (DPS) of scalloped hammerhead sharks (which is a different distinct population segment than that found along the mainland) and oceanic whitetip sharks throughout their range. At this time, there are no species of sharks listed as endangered in the U.S. Caribbean. As described above under Comment 8, NMFS is finalizing a different alternative than proposed. Specifically, NMFS is finalizing Alternative C4. Under this alternative, neither oceanic whitetip nor scalloped hammerhead sharks may be harvested, and NMFS will work to provide education and outreach materials to improve shark identification in the area. This action is consistent with the results of the 2020 Biological Opinion issued under Section 7 of the ESA. On May 15, 2020, NMFS released a Biological Opinion for all Atlantic HMS fisheries except pelagic longline, which stated that the continued operation of the fisheries analyzed in the Biological Opinion (including handgear fisheries) is not likely to jeopardize the continued existence of sea turtles, sawfish, Atlantic sturgeon, scalloped hammerhead shark (Caribbean and Central Atlantic DPS), oceanic whitetip shark, and giant manta ray. NMFS is implementing the Reasonable and Prudent Measures and Terms and Conditions of that 2020 Biological Opinion. This action is not anticipated to affect the above-referenced ESA-listed species in any way not previously analyzed for existing regulations and there is no new information that would alter this conclusion. Furthermore, the Agency does not anticipate any increased risks to overfished sharks or their habitats in the region. The gears authorized with an HMS Commercial Caribbean Small Boat permit in Federal waters are bandit, handline, harpoon, rod and reel, and buoy gear (see discussion of the definition of buoy gear in HMS fisheries and possible hook limit changes for buoy gear in Caribbean FMC-managed fisheries in the response to comment 6). Each of these is a tended gear that has low bycatch and bycatch mortality, which allows for quick release of shark species while minimizing adverse impact protected species, incidentally-caught species, or essential fish habitat. Additionally, NMFS believes that allowing for a limited number of sharks to be harvested will provide additional information, including effort and gear information, that can be used in stock assessments as well as improve our understanding of the species and any nursery and pupping areas in the U.S. Caribbean.

Comment 11: One commenter expressed concern that allowing shark retention in the U.S. Caribbean could attract fishermen from the mainland United States to the region to fish, increasing fishing effort.

Response: Currently, federally permitted commercial shark fishermen are able to fish in the U.S. Caribbean region, with the retention limits for the directed and smoothhound shark permits being higher than those allowed by the HMS Commercial Caribbean Small Boat permit. Therefore, NMFS disagrees that the allowance of up to three sharks per vessel per trip under the HMS Commercial Caribbean Small Boat permit would attract fishermen to the Caribbean and substantially increase fishing effort. The final retention limit is a conservative limit that is analogous to the lowest retention limit of the existing Federal HMS permits authorized for commercial shark fishing both off the mainland of the U.S. and in the U.S. Caribbean region. The distance for commercial fishermen from the U.S. mainland to travel to the U.S. Caribbean is over 900 miles (from Miami to U.S. Caribbean waters off the northwest of Puerto Rico) which is a considerable investment in time and fuel for any vessel, but especially one that is under 45 feet in length. The harvest of three sharks per vessel per trip would likely not offset the cost of fuel and therefore would not make a commercial fishing trip profitable. In addition, the HMS Commercial Caribbean Small Boat permit is valid only in the U.S. Caribbean region on vessels that are less than 45 feet long and cannot be held in conjunction with any other HMS permit in a calendar year. The HMS Commercial Caribbean Small Boat permit also allows fishermen to directly sell their HMS catch without possessing a dealer permit, provided that the fishermen report the harvest and sale of these fish to their respective territorial governments, which will report these data to the NMFS. This permit was implemented to provide fishermen in the region a way to comply with Federal HMS regulations while taking into account the unique and artisanal nature of the local fishery. It is unlikely that the conservative trip limit in this rulemaking would attract more fishermen from the mainland United States to the U.S. Caribbean region given the higher trip limits and vessel capacity other commercial shark permits afford them outside of the U.S. Caribbean region.

Comment 12: Multiple comments were submitted expressing concern about enforcement of swordfish and shark fishing regulations in the U.S. Caribbean. Commenters stated that there are not enough enforcement officers to monitor all fishing areas and ports. Some commenters, including PR DNER, commented that NMFS should focus on enforcement of existing regulations and outreach before implementing changes to authorized species and increasing retention limits under the HMS Commercial Caribbean Small Boat permit.

Response: NMFS and the U.S. Coast Guard continue to enhance enforcement resources in the U.S. Caribbean and to enforce all Federal fisheries regulations with assistance from territorial governments through joint enforcement agreements. NMFS also provides outreach and training as part of those agreements. NMFS will provide targeted outreach and training on the measures of this final action to ensure compliance by fishermen. NMFS believes that one of the benefits of the preferred alternatives, including the increased swordfish retention limit and the ability to retain some shark species, will be an increase in the number of HMS Commercial Caribbean Small Boat permit holders. As a condition of the permit, fishermen will be required to know and comply with Federal regulations.

Comment 13: Comments were submitted supporting separate shark quotas for the U.S. Caribbean instead of combining the quota with the Gulf of Mexico region.

Response: These comments are outside the scope of this rulemaking because the purpose of this rulemaking is to modify the swordfish and shark retention limits for certain commercial swordfish and shark permits. The quotas and general management measures were established in the final rules to implement Amendment 2 to the 2006 Consolidated HMS FMP (73 FR 35778, June 24, 2008; corrected on 73 FR 40658; July 15, 2008), Amendment 5a to the 2006 Consolidated HMS FMP (78 FR 40318; July 3, 2013), Amendment 6 to the 2006 Consolidated HMS FMP (80 FR 50073; August 18, 2015), and Amendment 9 to the 2006 Consolidated HMS FMP (80 FR 73128; November 24, 2015), and Amendment 5b to the 2006 Consolidated HMS FMP (21 FR 14678).

Comment 14: One commenter suggested including mechanisms to ensure that sharks harvested in the U.S. Caribbean region will be contained in the local markets or for personal consumption. Other commenters stated that there is little to no market for shark meat in the U.S. Caribbean region and that allowing the retention of sharks under the HMS Commercial Caribbean Small Boat permit could promote the clandestine export of shark fins.

Response: During the rulemaking process for Amendment 4 (77 FR 59842, October 1, 2012) to the 2006 Consolidated HMS Fishery Management Plan, NMFS created the Commercial Caribbean Small Boat permit. At the time, NMFS recognized the need for a unique Caribbean permit in part because of the smaller vessels, shorter trips, limited profit margins, and high local consumption of catches associated with Caribbean commercial fisheries. Currently, NMFS does not believe that large amounts of sharks and shark products would be sold outside of local U.S. Caribbean markets because the retention limit is too low for vessels to make a profit shipping and selling the sharks outside of the U.S. Caribbean. Based on comments received from the HMS Advisory Panel, NMFS believes that there are sharks being sold in the U.S. Caribbean, and therefore, there is a local market for shark meat. Increasing commercial shark fishing opportunities in the U.S. Caribbean in a limited manner under this action could expand the market for sustainably harvested shark meat in the region. With regard to the export of shark fins, trade of shark fins that are harvested from sharks legally landed with their fins attached is legal in the United States and its Caribbean territories, and can contribute to supporting a sustainable shark fishing industry. Although no retention of sharks is currently allowed under the HMS Commercial Caribbean Small Boat permit, vessels with other commercial shark permits can currently retain sharks in the U.S. Caribbean and can legally sell their fins if they are sold to a federally permitted dealer. Increasing the number of sharks that can be legally harvested by HMS Commercial Caribbean Small Boat permit holders is not expected to correspond with a rise in illegal harvest of sharks or promotion of a clandestine fin trade. Rather, allowing the legal retention of sharks by HMS Commercial Caribbean Small Boat permit holders should provide for more legal markets of shark products, which is expected to incentivize fishermen to obtain the HMS Commercial Caribbean Small Boat permit and ultimately correspond with additional data to continue managing those species sustainably, consistent with the Magnuson-Stevens Act.

Comment 15: One commenter expressed concern about contaminants in shark flesh and stated that research on the subject has not been performed in Puerto Rican waters.

Response: The United States Food and Drug Administration's (FDA) Hazard, Analysis, and Critical Control Points (HACCP) published regulations (December 18; 1995; 60 FR 65197) that mandate the application of the HACCP principles to ensure the safe and sanitary processing of seafood products. Dealers are responsible for ensuring products they purchase and sell are in compliance with FDA HACCP regulations.

Comment 16: One commenter stated that one of the outcomes of the Caribbean Challenge Initiative summit in the British Virgin Islands in May 2013, which included the participation of the Secretary of the PR DNER was a Communiqué emphasizing the urgent need to create protection for sharks and rays across the entire Caribbean Region. As a result, PR DNER agreed to protect sharks and rays in PR waters. Therefore, promoting a shark fishery is contrary to Puerto Rico's policy.

Response: Federal conservation and management measures have been and continue to be in place in Federal waters of the U.S. Caribbean. These measures, which will continue under this action, have resulted in sustainable managed shark fisheries. As a condition of their permits, federally permitted fishermen must abide by Federal regulations wherever they fish, including state waters, unless the state (or territory in this case) has more restrictive regulations (see 50 CFR 635.4(a)(10)). NMFS works closely with the states and territories to ensure consistent regulations for shark fishing, to the extent practicable. In some cases, the regulations are not consistent. As such, federally permitted fishermen operating from and/or landing fish in Puerto Rico or the U.S. Virgin Islands must abide by any territorial commercial shark fishing regulations that are more restrictive. It is up to the fishermen to understand the regulations that are applicable to their situation.

Additionally, this rule does not require Puerto Rico to promote a shark fishery. Rather, one of the purposes of this rulemaking is to adjust the shark retention limits of the existing HMS Commercial Caribbean Small Boat permit to better provide fishing opportunities for shark fishermen to harvest sustainably managed shark species. This permit is one of several existing Federal commercial shark permits that allow the retention of sharks in Federal waters of the United States, including the U.S. Caribbean region.

Comment 17: The PR DNER submitted a comment stating that shark, tuna, and swordfish in territorial waters are managed under Federal HMS regulations, and that commercial fishermen targeting or retaining these species must hold a Federal HMS permit. However, few commercial fishermen in Puerto Rico comply with this requirement, thus, PR DNER believes that data used in developing this action may be incomplete, and there is no evidence that an increase in the swordfish and shark retention limit is needed. In addition, PR DNER stated that data collection requirements should be enforced before increasing the swordfish and shark retention limits. Other commenters, including PR DNER, stated that additional research on U.S. Caribbean shark species is needed, and that HMS landings should be closely tracked. Several commenters stated that the Agency should carry out Caribbean-specific stock assessments for all sharks authorized for retention under the HMS Commercial Caribbean Small Boat permit. Some commenters specifically noted that stock status information is needed for smoothhound sharks in the Caribbean. Although the recent smoothhound shark stock assessments found that the stocks are healthy, not overfished, and with no overfishing occurring, the commenter stated that data from the U.S. Caribbean was not incorporated into the stock assessment. Two species of smoothhound sharks have been described in the U.S. Caribbean, but the assessment failed to recognize the presence of a different subspecies ( Mustelus canis insularis Heemstra, 1997) that occurs in the region and may be the bulk of the incidental catches.

Response: NMFS agrees that reporting of HMS landings in the region could continue to be improved. NMFS specifically implemented the HMS Commercial Caribbean Small Boat permit in 2012 (77 FR 59842; October 1, 2012) in part to improve the Agency's capability to monitor and sustainably manage the fishery. The HMS Commercial Caribbean Small Boat permit provides several advantages for U.S. Caribbean fishermen, including the ability to act as a dealer and sell catch directly to consumers and restaurants, thus better meeting the type of markets that exist in the U.S. Caribbean. Since 2012, the reporting of landings of HMS in the territorial trip ticket programs has improved; however, fishermen seem to remain reluctant to obtain the permit. NMFS believes that one benefit of the preferred alternatives, including the increased swordfish retention limit and the ability to retain some shark species under the HMS Commercial Caribbean Small Boat permit, will be an increase in the number of HMS Commercial Caribbean Small Boat permit holders because the authorized species and retention limits may make the permit more desirable and may more closely match the existing fishing practices in the region. If more fishermen in the region obtain the permit and comply with the reporting requirements, NMFS and territorial governments would get better, more complete landings information. For this reason, the Agency disagrees with the assertion that reporting compliance must be addressed before changes to the retention limits are made. Instead, changes to the retention limit would make the HMS Commercial Caribbean Small Boat permit more desirable since it increases the potential profitability and flexibility of each trip. This is expected to increase the adoption of the HMS Commercial Caribbean Small Boat permit, leading to increased reporting compliance, and increased HMS fishery data from the region.

Regarding the need for additional research and Caribbean-specific stock assessment for sharks authorized for retention under the HMS Commercial Caribbean Small Boat permit, management of the Atlantic shark fisheries is based on the best available science to achieve optimum yield while preventing overfishing and to rebuild overfished shark stocks. Domestic shark stock assessments are generally conducted through the Southeast Data, Assessment, and Review (SEDAR) process, in which NMFS participates. This process is also used by the South Atlantic, Gulf of Mexico, and Caribbean Fishery Management Councils and is designed to provide transparency throughout the stock assessment process. Additionally, there are some shark stocks that are assessed internationally via the process established by ICCAT. In all cases, NMFS ensures the data and models used are appropriate, all sources of mortality are considered, and that the end result constitutes the best available science, consistent with National Standard 2 and other requirements. To that end, this final action is allowing limited retention of non-prohibited sharks under the HMS Commercial Caribbean Small Boat permit, with shark landings being carefully monitored through the HMS e-Dealer reporting system and via the existing territorial reporting system to ensure timely quota monitoring. NMFS anticipates, as mentioned above, that allowing the retention of sharks under the HMS Commercial Caribbean Small Boat permit will not only provide increased fishing opportunities to harvest sustainably managed sharks, but also improve catch and landings data in the U.S. Caribbean shark fisheries as NMFS expects more fishermen to acquire the HMS Commercial Caribbean Small Boat permit given the ability to retain sharks. Increased participation and permitting is expected to lead to improved data collection, more accurate stock assessments, and better management of the U.S. Caribbean shark fishery.

With regard to the concern on stock status information needed for smoothhound sharks in the Caribbean, the stocks of most Atlantic HMS span broad areas both within and beyond the Caribbean and regional stock assessments are not appropriate in such cases. A few shark species are found mainly in the Caribbean and in such cases regional stock assessments may be appropriate and are conducted accordingly as data are available. However, as is the case of species of smoothhound sharks, NMFS has only limited data for some species, which requires management to be based on species within a complex of species. Because of the overlap in range between the different species and the extreme difficulty in distinguishing species of smoothhound sharks from one another without genetic analysis to distinguish between the species, NMFS grouped all smoothhound species (all Mustelus species that are currently known and those that may be discovered within the U.S. EEZ of the Atlantic, Gulf of Mexico, and Caribbean) together within the term “smoothhound sharks” for management purposes and manages them as a complex and one stock. Thus, the term “smoothhound sharks” collectively refers to smooth dogfish ( Mustelus canis ), Florida smoothhound ( M. norrisi ), Gulf smoothhound ( M. sinusmexicanus ), small eye smoothhound ( M. higmani ), and any other Mustelus species that might be found in U.S. waters of the Atlantic, Gulf of Mexico, and/or Caribbean. Any Mustelus shark species retained by commercial fishermen in the U.S. Caribbean region under the new HMS Commercial Caribbean Small Boat shark retention limits in this final action will continue to be counted towards the smoothhound shark complex quota, which in turn will help inform future stock assessments.

This section explains the changes in the regulatory text from the proposed rule to the final rule. These changes were made in response to public comment.

1. Section 635.24(b)(3), (b)(4) introductory text, and (b)(4)(iii). Modification of the Swordfish Retention Limit.

In the proposed rule, NMFS proposed a default retention limit of 6 swordfish per vessel per trip for all regions except the Florida Swordfish Management Area (which would retain the default retention limit of 0 swordfish per vessel per trip) and a retention limit of 0-6 swordfish per vessel per trip for all permits. After considering public comment, NMFS is instead finalizing a default retention limit of 18 swordfish per vessel per trip for all regions except the Florida Swordfish Management Area (which would retain the default retention limit of 0 swordfish per vessel per trip) and a retention limit of 0-18 swordfish per vessel per trip for all permits. NMFS feels this action is appropriate because it will give fishermen the greatest opportunity to harvest the North Atlantic swordfish quota and will not create differences in retention limits among different permits in the U.S. Caribbean. Public comments indicated that Swordfish General Commercial permit holders and HMS Commercial Caribbean Small Boat permit holders would benefit from a retention limit range of 0 to 18 swordfish per vessel per trip, and that a default retention limit of 18 swordfish per trip was appropriate for the U.S. Caribbean region. As described above in the response to Comment 3, this change in the retention limit was based on the following five considerations—the goal of this rulemaking to provide consistency in swordfish retention limits among the three open access swordfish handgear permits, the healthy status of the North Atlantic swordfish stock, the potential for additional fishing opportunities because trips that target swordfish farther offshore will now be profitable, an increased opportunity for more fishermen in the Caribbean region to obtain the HMS Commercial Caribbean Small Boat permit and thus provide better, more complete landings information, and that this rule is also finalizing adaptive management measures that would allow NMFS to quickly adjust swordfish retention limits regionally (down to zero fish, if necessary) in response to landings information.

2. Section 635.24(a)(4)(iv). Modification of the Shark Retention Limit.

In the proposed rule, NMFS proposed a default retention limit of three smoothhound and/or tiger sharks (combined) per vessel per trip for any vessel that holds the HMS Commercial Caribbean Small Boat permit. After considering public comment, NMFS is finalizing a default retention limit of three total non-prohibited smoothhound, small coastal sharks (other than blacknose), or large coastal (other than hammerhead, silky, or sandbar) sharks (combined) per vessel per trip for any vessel that holds a HMS Commercial Caribbean Small Boat permit. Specifically, HMS Commercial Caribbean Small Boat permit holders could retain and sell tiger, blacktip, bull, spinner, lemon, Atlantic sharpnose, finetooth, bonnethead, and smoothhound sharks. This change is responsive to public comments, and meets management goals by providing increased fishing opportunities to harvest sustainably managed sharks at incidental levels while still avoiding overharvest of specific species. As described above in the response to Comment 8, in making this change, NMFS considered several factors including that fishermen would continue to be limited by the established and currently underutilized shark quotas, that the final retention limits would not likely increase landings to a level that may adversely affect shark populations given the limited range and hold capacity of the small-scale vessels involved, that this rule is also finalizing adaptive management measures that would allow NMFS to quickly adjust shark retention limits regionally (down to zero fish, if necessary) in response to landings information, and that providing additional opportunities to retain sharks could improve catch and landings data in the U.S. Caribbean shark fishery if more fishermen acquire the HMS Commercial Caribbean Small Boat permit. Lastly, as part of the final action, NMFS intends to conduct extensive outreach and education to fishermen and government agencies in the U.S. Caribbean region to address species identification and compliance concerns.

The NMFS Assistant Administrator has determined that this final rule is consistent with the 2006 Consolidated Atlantic HMS FMP and its amendments, the Magnuson-Stevens Act, ATCA, and other applicable law.

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

A final regulatory flexibility analysis (FRFA) was prepared for this rule. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, our responses to those comments, and a summary of the analyses completed to support the action. The full FRFA is available from NMFS (see ADDRESSES ). A summary is provided below.

Section 604(a)(1) of the RFA requires Agencies to state the need for and objective of, the final action.

The objectives of this rulemaking are to provide consistency between the three open access swordfish handgear permits, all of which allow similar gears to be used within U.S. Atlantic and Caribbean waters, and to provide increased fishing opportunities for sharks in the U.S. Caribbean. Furthermore, this final action would increase administrative efficiencies and increase management flexibility by managing the open access swordfish commercial permits similarly.

Section 604(a)(2) requires that a FRFA include a summary of significant issues raised by public comment in response to the IRFA and a summary of the assessment of the Agency of such issues, and a statement of any changes made in the rule as a result of such comments.

During the public comment period, commenters requested NMFS implement a higher swordfish retention limit given the health of the stock, the availability of the resource, and the capacity and need of some permit holders to transport more than six swordfish when traveling further offshore to fishing grounds. Based on public comment, NMFS now prefers Alternative B4, instead of the preferred alternative in the Draft EA, Alternative B2, as this alternative will provide consistency in swordfish retention limits among the three open access swordfish handgear permits and a higher retention limit than the one proposed, which would provide additional fishing opportunities because trips that target swordfish farther offshore will be profitable under the higher retention limit.

During the public comment period, some commenters expressed support for the preferred alternative in the Draft EA, Alternative C2, but also argued that smoothhound sharks are only caught incidentally and are not a target species. As a result, these commenters were concerned that Alternative C2 would place any shark meat demand solely on tiger sharks. The commenters also felt Alternative C2 could potentially result in fishermen discarding sharks until tiger or smoothhound sharks were landed, potentially increasing fishing effort, discards, and shark mortality. The commenters also opposed the retention of any prohibited species along with some specific species, including pelagic and hammerhead sharks, given concerns regarding those species' vulnerability to fishing pressure, stock status, and effects on reef systems and ecotourism. Some commenters indicated that NMFS should combine Alternative C2 with Alternative C3 to allow for fishing opportunities to harvest sustainably managed sharks, with a retention limit not to exceed six sharks given the capacity and size of the vessels, while avoiding overharvest of specific shark species, including pelagic and hammerhead sharks. Commenters also requested NMFS provide extensive outreach and education to fishermen and government agencies on species identification and permit requirements. After considering public comment, NMFS created a new alternative, Alternative C4 to address the issues raised by the public.

NMFS did not receive any comments from the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule or the IRFA. All of the comments and responses to the comments are summarized in Appendix I of the Final EA.

Section 604(a)(4) of the Regulatory Flexibility Act requires Agencies to provide an estimate of the number of small entities to which the rule would apply. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the United States, including fish harvesters. Provision is made under SBA's regulations for an agency to develop its own industry-specific size standards after consultation with Advocacy and an opportunity for public comment (see 13 CFR 121.903(c)). Under this provision, NMFS may establish size standards that differ from those established by the SBA Office of Size Standards, but only for use by NMFS and only for the purpose of conducting an analysis of economic effects in fulfillment of the agency's obligations under the RFA. To utilize this provision, NMFS must publish such size standards in the Federal Register (FR), which NMFS did on December 29, 2015 (80 FR 81194, December 29, 2015). In this final rule effective on July 1, 2016, NMFS established a small business size standard of $11 million in annual gross receipts for all businesses in the commercial fishing industry (NAICS 11411) for RFA compliance purposes. NMFS considers all HMS permit holders to be small entities because they had average annual receipts of less than $11 million for commercial fishing.

As discussed in Section 6.2.1 of the Final EA, the final rule would apply to the 665 Swordfish General Commercial permit holders, 30 HMS Commercial Caribbean Small Boat permit holders, and 3,839 HMS Charter/Headboat permit holders with a commercial sale endorsement. Active permit holders are defined as those with valid permits that landed one swordfish based on HMS electronic dealer reports. Of those 665 Swordfish General Commercial permit holders, 19 landed swordfish in 2020. Of 30 HMS Commercial Caribbean Small Boat permit holders, two landed swordfish in 2020. Of the 3,839 HMS Charter/Headboat vessels, 23 had an active commercial sale endorsement, and landed swordfish in 2020. NMFS has determined that the final rule would not likely affect any small governmental jurisdictions. More information regarding the description of the fisheries affected, and the categories and number of permit holders can be found in Chapter 6 of the Final EA.

Section 604(a)(5) of the RFA requires Agencies to describe any new reporting, record-keeping and other compliance requirements. The action does not contain any new collection of information, reporting, or record-keeping requirements.

Under section 604(a)(6) of the RFA requires Agencies in the FRFA to describe the steps 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 in the final rule 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. These impacts are discussed below and in Chapters 4 and 6 of the Final EA.

The alternatives considered and analyzed are described below. The FRFA assumes that each vessel will have similar catch and gross revenues to show the relative impact of the final action on vessels.

Alternative A1 would maintain the current ability to adjust the regional swordfish retention limits for vessels possessing the HMS Commercial Caribbean Small Boat permit only through framework adjustment procedures. See 50 CFR 635.34(b). This alternative would not result in any change in economic impacts, and would have neutral economic impacts on HMS permit holders.

Alternative A2, the preferred alternative, would provide NMFS the ability to adjust the swordfish retention limit for the HMS Commercial Caribbean Small Boat fishery on an inseason basis, as needed. NMFS already has the ability to adjust the swordfish retention limits under the Swordfish General Commercial and HMS Charter/Headboat permits. Under this alternative, NMFS would have more flexibility in the regulations to be more responsive to the changes needed in the swordfish fishery within the fishing season. The alternative would provide for a new regulatory process that would not change the actual retention limits. Therefore, this alternative would have neutral economic impacts to HMS permit holders.

Alternative A3, the preferred alternative, would provide NMFS the ability to adjust the shark retention limit for the HMS Commercial Caribbean Small Boat fishery on an inseason basis, as needed. NMFS already has the ability to adjust the shark retention limits under shark inseason trip limit adjustment authorization criteria for commercial shark fishermen. Under this alternative, NMFS would have more flexibility in the regulations to be more responsive to the changes needed in the shark fishery within the fishing season. The alternative would provide for a new regulatory process that would not change the actual retention limits. Therefore, this alternative would have neutral economic impacts to HMS permit holders.

Under Alternative B1, the No Action alternative, NMFS would maintain the existing swordfish retention limits within the swordfish management regions for all vessels possessing an HMS Commercial Caribbean Small Boat permit, a Swordfish General Commercial permit, or an HMS Charter/Headboat permit on a commercial trip. For vessels possessing a Swordfish General Commercial permit or vessels with an HMS Charter/Headboat permit on a commercial trip, the current range of swordfish retention limits is zero to six swordfish per vessel per trip for all regions with the default retention limits (see Table 4.1 of the Final EA). For the HMS Commercial Caribbean Small Boat permit, the retention limit is two swordfish per vessel per trip. As discussed in Chapter 3 of the Final EA, a single swordfish is estimated to be worth $336.72 (ex-vessel), on average, whereas six swordfish are estimated to be worth $2,020.32 (ex-vessel). Under this alternative, the potential gross revenue per trip for each HMS Commercial Caribbean Small Boat vessel landing the trip limit would be approximately $673.44 based on the average ex-vessel price of swordfish. Similarly, the potential gross revenue per trip for vessels possessing a Swordfish General Commercial permit or HMS Charter/Headboat permit on a commercial trip fishing in either the U.S. Caribbean, Northwest Atlantic or Gulf of Mexico and landing the full trip limit would be $2,020.32, with gross revenue from swordfish ranging from either $673.44662 under a two swordfish limit or $1,010.16 under a three swordfish limit to $2,020.32 under a six swordfish limit. Alternative B1 would result in neutral economic impacts in the short- and long-term since there is no change in the management structure of the swordfish fishery.

Under Alternative B2, NMFS would maintain the default swordfish retention limit of zero swordfish per vessel per trip for the Florida Management Region and establish a default swordfish retention limit of six swordfish per vessel per trip for all other regions and for HMS Commercial Caribbean Small Boat and Swordfish General Commercial permit holders, and HMS Charter/Headboat permit holders with a commercial sale endorsement. For these permit holders in all regions, the retention limit range would be zero to six swordfish per vessel per trip. Under this alternative, the potential gross revenue per trip for each vessel that has landed the maximum allowed trip limit under either of the three swordfish commercial swordfish permits (HMS Commercial Caribbean Small Boat permit, Swordfish General Commercial permit, and HMS Charter/Headboat permit, on a commercial trip) and within the U.S. Caribbean, Northwest Atlantic, and Gulf of Mexico would be $2,020.32 per vessel per trip (Table 4.1 of the Final EA). For example, for a vessel making ten trips per year and retaining the six swordfish limit each trip, the annual gross revenue derived from swordfish would generate up to $20,203.20. By having a higher default trip limit for swordfish, this alternative would continue to provide a seasonal, or secondary, fishery for most participants as well as new economic benefits to some fishermen as well as fishing tackle manufacturers and suppliers, bait suppliers, fuel providers, and swordfish dealers. Alternative B2 would likely result in overall neutral economic impacts in the short- and long-term. NMFS has increased the swordfish retention limit in the Northwest Atlantic and Gulf of Mexico, and the U.S. Caribbean regions to six every year since the implementation of the Swordfish General Commercial permit, thus any economic impact would be neutral for Swordfish General Commercial permit holders and HMS Charter/Headboat permit holders with a commercial sale endorsement. For the HMS Commercial Caribbean Small Boat permit holders, there would be a minor increase in revenue, but this minor increase would not have significant economic impacts for the fishery overall.

Under Alternative B3, the retention limit range would be increased for Swordfish General Commercial permit holders and HMS Charter/Headboat permit holders with a commercial sale endorsement, from zero to six swordfish per vessel per trip to 0-18 swordfish per vessel per trip for all regions with the same default retention limits as Alternative B2. For the HMS Commercial Caribbean Small Boat permit, NMFS would establish a swordfish retention limit range of 0-18 swordfish per vessel per trip with a default retention limit of six swordfish per vessel per trip. Similar to Alternative B2, this alternative would establish a default swordfish retention limit of six swordfish per vessel per trip for the HMS Commercial Caribbean Small Boat permit holder within the U.S. Caribbean region. However, unlike Alternative B2, this alternative would increase the default swordfish retention limit from 6 swordfish per vessel per trip to 18 swordfish per vessel per trip for vessels possessing a Swordfish General Commercial permit, or vessels with an HMS Charter/Headboat permit with a commercial sale endorsement within the Northwest Atlantic, Gulf of Mexico, and the U.S. Caribbean swordfish management regions. The default swordfish retention trip limit for the Florida Swordfish Management Area would remain at zero. Under this alternative, the potential gross revenue for each vessel that has landed the maximum allowed trip limit under an HMS Commercial Caribbean Small Boat permit within the U.S. Caribbean region would be $2,020.32 per vessel per trip with gross revenue per trip from swordfish ranging from $2,020.32 to $6,060.96 under a 6 and 18 swordfish limit, respectively (Table 4.1 of the Final EA). Similarly, the potential gross revenue per trip for vessels possessing a Swordfish General Commercial permit or vessels with an HMS Charter/Headboat permit on a commercial trip fishing in either the U.S. Caribbean, Northwest Atlantic or Gulf of Mexico swordfish management regions retaining the maximum allowed limit on each trip would be $6,060.96 per vessel per trip (Table 4.1 of the Final EA). For example, for a vessel making ten trips per year and retaining the maximum allowable limit ( i.e., an 18 swordfish retention limit) each trip, the annual gross revenue derived from swordfish would generate up to $60,609.60. By having a higher default trip limit for swordfish, this alternative would continue to provide a seasonal, or secondary, fishery for most participants as well as new economic benefits to some fishermen as well as fishing tackle manufacturers and suppliers, bait suppliers, fuel providers, and swordfish dealers. Alternative B3 would likely result in minor beneficial direct economic impacts on HMS Caribbean Commercial Small Boat permit holders, Swordfish General Commercial permit holders or HMS Charter/Headboat permit holders with a commercial sale endorsement in the short- and long-term since the retention limit is set above the default limit for all swordfish management region, resulting in fishermen potentially realizing higher trip revenues since fishermen would have more swordfish to sell.

Under Alternative B4, the preferred alternative, NMFS would increase the retention limit range to 0-18 swordfish per vessel per trip for all regions ( i.e., Florida Swordfish Management area, and the U.S. Caribbean, the Gulf of Mexico, and the Northwest Atlantic regions) for all three swordfish commercial permits. The default swordfish retention limit for these permit holders in all regions would be set at 18 swordfish per vessel per trip, except for the Florida Swordfish Management Area, which would have a default swordfish retention limit of zero. As noted above, Alternative B3 would make the same modifications, but with a lower (six swordfish) default retention limit for the HMS Commercial Caribbean Small Boat permit within the U.S. Caribbean region. Similar to Alternative B3, the potential gross revenue per trip for each vessel that has landed the maximum allowed trip limit ( i.e., an 18 swordfish retention limit) with an HMS Commercial Caribbean Small Boat permit, a Swordfish General Commercial permit, or a vessel with an HMS Charter/Headboat permit on a commercial trip fishing in either the U.S. Caribbean, the Northwest Atlantic or the Gulf of Mexico swordfish management regions would be $6,060.96 (Table 4.1 of the Final EA). For example, for a vessel making ten trips per year and retaining the maximum allowable limit ( i.e., an 18 swordfish retention limit) each trip, the annual gross revenue derived from swordfish would generate up to $60,609.60. Similar to Alternative B3, by having a higher default trip limit for swordfish, this alternative would continue to provide a seasonal, or secondary, fishery for most participants. Increasing the retention limit above the default limit for all swordfish management regions would realize higher trip revenues since fishermen would have more swordfish to sell. Alternative B4 would likely result in minor beneficial direct economic impacts on HMS Commercial Caribbean Small Boat permit holders, Swordfish General Commercial permit holders or HMS Charter/Headboat permit holders with a commercial sale endorsement in the short- and long-term since the retention limit is set above the default limit for all swordfish management regions, resulting in fishermen potentially realizing higher trip revenues since fishermen would have more swordfish to sell.

Under Alternative C1, the No Action alternative, NMFS would maintain the current retention limit of zero sharks per vessel per trip for vessels issued an HMS Commercial Caribbean Small Boat permit. Thus, this alternative would result in neutral direct economic impacts to HMS Commercial Caribbean Small Boat permit holder in the short- and long-term. However, the No Action alternative would maintain management measures that may not be addressing multiple requests (see Chapter 1 of the Final EA) by commercial shark fishermen to land a limited number of sharks, restricting NMFS' ability to provide additional fishing opportunities to fishermen when other factors, such as availability of fish on the grounds and available quota, support such an increase.

Under Alternative C2, NMFS would establish a default shark retention limit of three smoothhound and/or tiger sharks (combined) per vessel per trip for the HMS Commercial Caribbean Small Boat permit holders. The retention limit range would be zero to three smoothhound and/or tiger sharks (combined) per vessel per trip. The retention of any other shark species would not be allowed under this alternative. Table 4.3 in the Final EA summarizes the potential increase in annual ex-vessel revenue based on average weight and price data of smoothhound and tiger sharks. If a fisherman landed the maximum trip limit, with only tiger sharks being caught, and takes two trips per month (24 trips per year), then the annual revenue per vessel associated with this activity would be $5,067. If the vessel landed the full trip limit and conducted two trips per month (24 trips per year), with only smoothhound sharks being caught, then the annual revenue per vessel would be $835. Because the Agency would have the authority to adjust the shark retention limit from zero to three, the annual ex-vessel revenue estimates could vary from $0 (under a zero fish limit) to as much as $835 to $5,067, depending on the species composition of the catch. This minor increase in per trip and annual revenue would result in neutral economic impacts in the short- and long-term to the HMS Commercial Caribbean Small Boat permit holders because any potential increase would be relatively minor.

Under Alternative C3, NMFS would establish a default retention limit of six non-prohibited large coastal, small coastal, pelagic, and/or smoothhound sharks (combined) per vessel per trip for HMS Commercial Caribbean Small Boat permit holders. The retention limit range would be zero to six for non-prohibited large coastal, small coastal, pelagic, and smoothhound sharks (combined) per vessel per trip. Table 4.4 in the Final EA summarizes the potential increase in annual ex-vessel revenue based on average weight and price data of non-prohibited large coastal, small coastal, pelagic, and smoothhound sharks. If a fisherman landed the maximum trip limit, with only large coastal sharks being caught, and takes two trips per month (24 trips per year), then the annual revenue per vessel associated with this activity would be $10,135 (Table 4.4 in the Final EA). Assuming a successful trip and two trips per month, the annual revenue per vessel associated with fishermen landing the full trip limit of either, small coastal, pelagic or smoothhound sharks would be $969, $12,817, and $1,669, respectively. Because the Agency would have the authority to adjust the shark retention limit from zero to six, the annual ex-vessel revenue estimates could vary from $0 (under a zero fish limit) to as much as $969 to $12,817, depending on the species composition of the catch. This minor increase in per trip and annual revenue would result in neutral economic impacts to the HMS Commercial Caribbean Small Boat permit holders in the short- and long-term because any potential increase would be relatively minor.

Under Alternative C4, the preferred alternative, NMFS would establish a retention limit range of zero to three non-prohibited large coastal, small coastal, and/or smoothhound sharks (combined) per vessel per trip, with a default retention limit of three sharks per vessel per trip. The retention of pelagic, hammerhead, silky, blacknose, sandbar, and prohibited sharks is not allowed under this alternative. Table 4.5 in the Final EA summarizes the potential increase in annual ex-vessel revenue based on average weight and price data of non-prohibited large coastal, small coastal, and smoothhound sharks. Assuming a successful trip and two trips per month (24 trips per year), the annual revenue per vessel associated with fishermen landing the full trip limit of either non-prohibited large coastal, small coastal, or smoothhound sharks would be $5,067, $484, and $835 respectively. Because the Agency would have the authority to adjust the shark retention limit from 0 to three, the annual ex-vessel revenue estimates could vary from $0 (under a 0 fish limit) to as much as $484 to $5,067, depending on the species composition of the catch. This minor increase in per trip, and annual revenue would result in neutral direct socioeconomic impacts in the short- and long-term to the HMS Commercial Caribbean Small Boat permit holders because any potential increase would be relatively minor.

At the proposed rule stage, NMFS preferred Alternative C2, limiting the harvest to up to three tiger and/or smoothhound shark (combined) per vessel per trip for HMS CCSB permit holders. During the public comment period, some commenters expressed support for Alternative C2, but also argued that smoothhound sharks are only caught incidentally and are not a target species. As a result, these commenters were concerned that Alternative C2 would place any shark meat demand solely on tiger sharks. The commenters also felt Alternative C2 could potentially result in fishermen discarding sharks until tiger or smoothhound sharks were landed, potentially increasing fishing effort, discards, and shark mortality. The commenters also opposed the retention of any prohibited species along with some specific species, including pelagic and hammerhead sharks, given concerns regarding those species' vulnerability to fishing pressure, stock status, and effects on reef systems and ecotourism. Some commenters indicated that NMFS should combine Alternative C2 with Alternative C3 to allow for fishing opportunities to harvest sustainably managed sharks, with a retention limit not to exceed six sharks given the capacity and size of the vessels, while avoiding overharvest of specific shark species, including pelagic and hammerhead sharks. Commenters also requested NMFS provide extensive outreach and education to fishermen and government agencies on species identification and permit requirements. After considering public comment, NMFS created this new alternative, Alternative C4. This alternative is preferred because it is responsive to public comments and would meet the management goals highlighted in Chapter 1 of the Final EA by providing increased fishing opportunities to harvest sustainably managed sharks at incidental levels while still avoiding overharvest of specific species.

Given the amount of time that transpired from the Draft EA to the Final EA, the analyses in the Final EA were updated with an additional year of fisheries data, where appropriate. In addition, the total annual revenue calculations in the Final EA were revised from the Draft EA to better estimate the total annual revenue for each alternative by focusing on the average number of trips taken by the fleet multiplied by the ex-vessel revenue per trip. These updates did not change the conclusions of the analyses in the Draft EA regarding ecological, economic and social impacts of the alternatives.

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 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. As part of this rulemaking process, NMFS has prepared a listserv notice summarizing fishery information and regulations for the changes to the swordfish and shark commercial permits affected in this rule. This listserv notice also serves as the small entity compliance guide. Copies of the compliance guide are available from NMFS (see ADDRESSES ).

For the reasons set out in the preamble, 50 CFR part 635 is amended as follows:

Atlantic HMS fisheries, including BFT fisheries, are managed under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ). The 2006 Consolidated Atlantic HMS Fishery Management Plan (FMP) and its amendments are implemented by regulations at 50 CFR part 635. Section 635.27 divides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) and as implemented by the United States among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Atlantic HMS FMP and its amendments. NMFS is required under the MSA to provide U.S. fishing vessels with a reasonable opportunity to harvest quotas under relevant international fishery agreements such as the ICCAT Convention, which is implemented domestically pursuant to ATCA.

As a method for limiting fishing mortality on juvenile BFT, ICCAT recommendations have adopted a tolerance limit on the annual harvest of BFT measuring less than 115 centimeters (cm) (45.3 inches) (straight fork length) to no more than 10 percent by weight of a Contracting Party's total BFT quota. Any overharvest of such tolerance limit from one year must be subtracted from the tolerance limit applicable in the next year or the year after that. NMFS implements this provision by limiting the harvest of school BFT (measuring 27 to less than 47 inches curved fork length) to 127.3 metric tons (mt)) annually (10 percent of the U.S. quota)

In 2018, NMFS implemented a final rule that established the U.S. BFT quota and subquotas consistent with ICCAT Recommendation 17-06 (83 FR 53191, October 11, 2018). In 2020, following a stock assessment update, ICCAT adopted Recommendation 20-06, which maintained the overall total allowable catch of 2,350 mt and the associated U.S. quota. As such, as described in § 635.27(a), the current baseline U.S. quota continues to be 1,247.86 mt (not including the 25-mt ICCAT allocated to the United States to account for bycatch of BFT in pelagic longline fisheries in the Northeast Distant Gear Restricted Area). The Angling category quota continues to be 232.4 mt (127.3 mt for school BFT, 99.8 mt for large school/small medium BFT, and 5.3 mt for large medium/giant BFT).

The Angling category season opened on January 1, 2021, and continues through December 31, 2021. The size classes of BFT are summarized in Table 1. Large school and small medium BFT traditionally have been managed as one size class, i.e., a limit of one large school/small medium BFT (measuring 47 to less than 73 inches). Similarly, large medium and giant BFT traditionally have been managed as one size class that is also known as the “trophy” class. Currently, the default Angling category daily retention limit of one school, large school, or small medium BFT is in effect and applies to HMS Angling category and HMS Charter/Headboat permitted vessels (when fishing recreationally for BFT) (§ 635.23(b)(2)).

As defined at § 600.10, “charter boat” means a vessel less than 100 gross tons (90.8 mt) that meets the requirements of the U.S. Coast Guard to carry six or fewer passengers for hire ( i.e., uninspected) and “headboat” means a vessel that holds a valid Certificate of Inspection issued by the U.S. Coast Guard to carry passengers for hire ( i.e., greater than six).

Table 2 summarizes the recreational quota, subquotas, landings, and retention limit information for 2019 and 2020, by size class.

Under § 635.23(b)(3), NMFS may increase or decrease the Angling category retention limit for any size class of BFT after considering regulatory determination criteria under § 635.27(a)(8). Also under § 635.23(b)(3), recreational retention limits may be adjusted separately for specific vessel type, such as private vessels, headboats, or charter boats.

NMFS has considered all of the relevant determination criteria and their applicability to the change in the Angling category retention limit. The criteria and their application are discussed below.

Regarding the usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock (§ 635.27(a)(8)(i)), biological samples collected from BFT landed by recreational fishermen continue to provide NMFS with valuable parts and data for ongoing scientific studies of BFT age and growth, migration, and reproductive status. Additional opportunity to land BFT would support the continued collection of a broad range of data for these studies and for stock monitoring purposes.

NMFS also considered the catches of the Angling category quota to date and the likelihood of closure of that segment of the fishery if no adjustment is made (§ 635.27(a)(8)(ii)). Additionally, NMFS considered Angling category landings in 2019 and 2020, which were approximately 78 percent and 87 percent of the 232.4-mt annual Angling category quota, respectively, including landings of 56 percent and 64 percent of the available school BFT quota, respectively, under the same daily retention limits as implemented in this action. Thus, absent retention limit adjustment, NMFS anticipates that the full 2021 Angling category quota would not be harvested under the default retention limit.

NMFS also considered the effects of the adjustment on the BFT stock and the effects of the adjustment on accomplishing the objectives of the 2006 Consolidated HMS FMP (§ 635.27(a)(8)(v) and (vi)). These retention limits would be consistent with established quotas and subquotas, which are implemented consistent with ICCAT recommendations, (established in Recommendation 17-06 and maintained in Recommendation 20-06), ATCA, and the objectives of the 2006 Consolidated HMS FMP and amendments. In establishing these quotas and subquotas and associated management measures, ICCAT and NMFS considered the best scientific information available, objectives for stock management and status, and effects on the stock. These retention limits are in keeping with those established quotas and management measures. It is also important that NMFS limit landings to the subquotas both to adhere to the FMP quota allocations and to ensure that landings are as consistent as possible with the pattern of fishing mortality ( e.g., fish caught at each age) that was assumed in the latest stock assessment, and these retention limits are consistent with those objectives.

Another principal consideration in setting the retention limit is the objective of providing opportunities to harvest the available Angling category quota without exceeding the annual quota, based on the objectives of the 2006 Consolidated HMS FMP and amendments, including to achieve optimum yield on a continuing basis and to optimize the ability of all permit categories to harvest available BFT quota allocations (related to § 635.27(a)(8)(x)).

NMFS considered input on recreational limits from the HMS Advisory Panel at its May and September 2020 meetings and that ICCAT recommendations and HMS implementing regulations limit the allowance for landings of school bluefin tuna to ten percent of the U.S. baseline quota ( i.e., 127.3 mt). The 2020 school BFT landings represented approximately 6 percent of the total U.S. quota for 2020, well under the ICCAT recommended 10-percent limit. NMFS is not setting higher school BFT limits than the adjustments listed in Table 1 due to the potential risk of exceeding the ICCAT tolerance limit on school BFT and other considerations, such as potential effort shifts to BFT fishing as a result of current recreational retention limits for New England groundfish and striped bass as well as high variability in bluefin tuna availability.

Given that the Angling category landings fell short of the available quota in 2019 and 2020, even with the retention limit adjustments, and considering the regulatory criteria above, NMFS has determined that the Angling category retention limits applicable to participants in the HMS Angling category and HMS Charter/Headboat permitted vessels should be adjusted upwards from the default levels.

NMFS has also concluded that implementation of separate limits for private, charter boat, and headboat vessels is appropriate, recognizing the different nature, socio-economic needs, and recent landings results of the two components of the recreational BFT fishery. For example, charter operators historically have indicated that a retention limit greater than the default limit of one fish is vital to their ability to attract customers. In addition, Large Pelagics Survey estimates indicate that charter/headboat BFT landings averaged 24 percent of recent recreational landings for 2019 through 2020, with the remaining 76 percent landed by private vessels. NMFS has further concluded that a higher limit for headboats (than charter boats) is appropriate, given the limited number of headboats participating in the bluefin tuna fishery.

Given these considerations, for private vessels with HMS Angling category permits, this action adjusts the limit upwards to two school BFT and one large school/small medium BFT per vessel per day/trip ( i.e., two BFT measuring 27 to less than 47 inches, and one BFT measuring 47 to less than 73 inches). For charter boat vessels with HMS Charter/Headboat permits, this action adjusts the limit upwards to three school BFT and one large school/small medium BFT per vessel per day/trip when fishing recreationally for BFT ( i.e., three BFT measuring 27 to less than 47 inches, and one BFT measuring 47 to less than 73 inches). For headboat vessels with HMS Charter/Headboat permits, this action adjusts the limit upwards to six school BFT and two large school/small medium BFT per vessel per day/trip when fishing recreationally for BFT ( i.e., three BFT measuring 27 to less than 47 inches, and one BFT measuring 47 to less than 73 inches). Regardless of the duration of a fishing trip, the daily retention limit applies upon landing. For example, whether a private vessel (fishing under the Angling category retention limit) takes a two-day trip or makes two trips in one day, the day/trip limit of two school BFT and one large school/small medium BFT applies and may not be exceeded upon landing. This action does not change the retention limit for trophy size BFT.

NMFS anticipates that the BFT daily retention limits in this action will result in landings during 2021 that would not exceed the available subquotas. Lower retention limits could result in substantial underharvest of the codified Angling category subquota, and increasing the daily limits further may risk exceeding the available quota, contrary to the objectives of the 2006 Consolidated HMS FMP and amendments.

NMFS will continue to monitor the BFT fisheries closely through the mandatory landings and catch reports. HMS Angling category and HMS Charter/Headboat permitted vessel owners are required to report the catch of all BFT retained or discarded dead, within 24 hours of the landing(s) or end of each trip, by accessing hmspermits.noaa.gov, using the HMS Catch Reporting app, or calling (888) 872-8862 (Monday through Friday from 8 a.m. until 4:30 p.m.). Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional retention limit adjustments or closures are necessary to ensure available quota is not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the Federal Register . In addition, fishermen may call the Atlantic Tunas Information Line at (978) 281-9260, or access hmspermits.noaa.gov, for updates on quota monitoring and inseason adjustments.

HMS Angling category and HMS Charter/Headboat permit holders may catch and release (or tag and release) BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. All BFT that are released must be handled in a manner that will maximize their survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available at https://www.fisheries.noaa.gov/resource/outreach-and-education/careful-catch-and-release-brochure.

The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:

The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Affording prior notice and opportunity for public comment to implement the daily retention limit for the remainder of 2021 at this time is impracticable. Based on available BFT quotas, fishery performance in recent years, and the availability of BFT on the fishing grounds, immediate adjustment to the Angling category BFT daily retention limit from the default levels is warranted to allow fishermen to take advantage of the availability of fish and of quota. NMFS could not have proposed these actions earlier, as it needed to consider and respond to updated data and information from the 2020 Angling category. If NMFS was to offer a public comment period now, after having appropriately considered that data, it could preclude fishermen from harvesting BFT that are legally available consistent with all of the regulatory criteria, and/or could result in selection of a retention limit inappropriately high or low for the amount of quota available for the period.

Fisheries under the Angling category daily retention limit are currently underway and thus prior notice would be contrary to the public interest. Delays in increasing daily recreational BFT retention limit would adversely affect those HMS Angling category and HMS Charter/Headboat vessels that would otherwise have an opportunity to harvest more than the default retention limit of one school, large school, or small medium BFT per day/trip and may exacerbate the problem of low catch rates and quota rollovers. Analysis of available data shows that adjustment to the BFT daily retention limit from the default level would result in minimal risks of exceeding the ICCAT-allocated quota. NMFS provides notification of retention limit adjustments by publishing the notice in the Federal Register , emailing individuals who have subscribed to the Atlantic HMS News electronic newsletter, and updating the information posted on the Atlantic Tunas Information Line and on hmspermits.noaa.gov. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

This action is being taken under § 635.23(b)(3), and is exempt from review under Executive Order 12866.

The Northeast Multispecies Fishery Management Plan (FMP) defines a sector as a group of persons holding limited access Northeast multispecies permits that have voluntarily entered into a contract and agree to certain fishing restrictions for a specified period of time, and which has been granted a portion of the total allowable catch (TAC) in order to achieve objectives consistent with applicable FMP goals and objectives. A sector must be comprised of at least three Northeast multispecies permits issued to at least three different persons, none of whom have any common ownership interest in the permits, vessels, or businesses associated with the permits issued to the other two or more persons in that sector. Sectors are self-selecting, meaning each sector can choose its members.

The Northeast multispecies sector management system allocates a portion of the Northeast multispecies stocks to each sector. These annual sector allocations are known as annual catch entitlements (ACE) and are based on the collective fishing history of a sector's members. Sectors may receive allocations of large-mesh Northeast multispecies stocks with the exception of Atlantic halibut, windowpane flounder, Atlantic wolffish, and ocean pout, which are non-allocated species managed under separate effort controls. ACEs are portions of a stock's annual catch limit (ACL) available to commercial Northeast multispecies vessels. A sector determines how to harvest its ACE.

Because sectors elect to receive an allocation under a quota-based system, the FMP grants sector vessels several “universal” exemptions from the FMP's effort controls. These universal exemptions apply to: Trip limits on allocated stocks; Northeast multispecies days-at-sea (DAS) restrictions; the requirement to use a 6.5-inch (16.5-centimeters (cm)) mesh codend when fishing with selective gear on Georges Bank (GB); and portions of the Gulf of Maine (GOM) Cod Protection Closures. The FMP prohibits sectors from requesting exemptions from permitting restrictions, gear restrictions designed to minimize habitat impacts, and most reporting requirements.

In addition to the approved sectors, there are several state-operated permit banks, which receive allocations based on the history of the permits owned by the states. The final rule implementing Amendment 17 to the FMP allowed a state-operated permit bank to receive an allocation without needing to comply with the administrative and procedural requirements for sectors (77 FR 16942; March 23, 2012). Instead, permit banks are required to submit a list of participating permits to us, as specified in the permit bank's Memorandum of Agreement, to determine the ACE allocated to the permit bank. These allocations may be leased to fishermen enrolled in sectors. State-operated permit banks are no longer approved through the sector approval process, but current state-operated permit banks contribute to the total allocation under the sector system.

We received operations plans and preliminary contracts for fishing years 2021 and 2022 from 16 sectors. The operations plans included 19 exemptions previously requested by sectors, and approved by NMFS, in fishing year 2020. One sector also submitted a new exemption request for fishing year 2021. We have determined that the 16 sector operations plans and contracts that we received, and the 19 previously approved regulatory exemptions requested, are consistent with the FMP's goals and objectives, and meet sector requirements outlined in the regulations at § 648.87. Consequently, we are approving the 16 sector operations plans, as well as the 19 previously approved regulatory exemptions requested, in this final rule. We are not approving the new sector exemption requested for fishing year 2021. Copies of the operations plans and contracts, and the environmental assessment (EA), are available at: http://www.regulations.gov and from NMFS (see ADDRESSES ).

Last year, Framework 59 to the FMP set fishing year 2021 catch limits for 15 groundfish stocks (85 FR 45794; July 30, 2020). The 2021 catch limits for most stocks remain the same as, or similar, to 2020 limits. Framework 59 did not specify a 2021 catch limit for GOM winter flounder, Southern New England/Mid-Atlantic (SNE/MA) winter flounder, redfish, ocean pout, Atlantic wolffish, Eastern GB cod, or Eastern GB haddock. Eastern GB cod and haddock are management units of the GB cod and GB haddock stocks that NMFS manages jointly with Canada, and the shared quota is set annually.

This year, in Framework 61 to the FMP, the Council adopted new or adjusted fishing year 2021 catch limits for: GB haddock; GB yellowtail flounder; GB winter flounder; GOM winter flounder; SNE/MA winter flounder; redfish; Northern windowpane flounder; Southern windowpane flounder; ocean pout; Atlantic halibut; and Atlantic wolffish. Framework 61 would set 2021 catch limits for the two U.S./Canada stocks (Eastern GB cod and Eastern GB haddock). It would adjust the breakdown of sub-components for GB cod, GOM cod, SNE/MA yellowtail flounder, Cape Cod (CC)/GOM yellowtail flounder, witch flounder, and white hake. Framework 61 also included the exemption for sector vessels to target redfish with codend mesh as small as 5.5 inches (13.97 cm) as a universal exemption. We recently received Framework 61 for review from the Council and we will not be able to implement Framework 61 measures, if approved, before May 1, 2021.

As a result, the sector and common pool allocations in this rule are based on the 2021 catch limits set in Framework 59 that will be effective on May 1, 2021, and preliminary 2021 fishing year rosters (Table 1). If we approve Framework 61, the 2021 catch limits announced in this rule for these stocks will change when Framework 61 measures become effective.

The Framework 59 fishing year 2021 ACL for GB yellowtail flounder is 95.4 metric tons (mt), which will be in place on May 1. The Council recommended a fishing year 2021 ACL of 63.6 mt for GB yellowtail flounder in Framework 61. This is a 33-percent decrease, which will go into effect after May 1 if Framework 61 is approved. This adjustment is based on the recommendation of the Transboundary Management Guidance Committee, which is the joint U.S./Canada management body that meets annually to recommend shared quotas for the three transboundary stocks. The Council's recommendations will be further discussed in the Framework 61 proposed rule. We are highlighting this change in this rule because the GB yellowtail flounder sector allocations approved in this rule are based on the higher 2021 catch limits previously approved in Framework 59. If the Council's recommended catch limits become final with no changes, the ACE for this stock will be reduced when Framework 61 is implemented.

This rule also announces default catch limits for GOM winter flounder, SNE/MA winter flounder, redfish, ocean pout, Atlantic wolffish, Eastern GB cod, and Eastern GB haddock. These stocks do not already have a catch limit in place for fishing year 2021. The groundfish regulations implement default catch limits for any stock for which final specifications are not in place by the beginning of the fishing year on May 1. The FMP's default specifications provision sets catch at 35 percent of the previous year's (2020) catch limits, except in instances where the default catch limit would exceed the Council's recommendation. The fishing year 2021 state waters and other sub-components specified for redfish in Framework 59 exceed the Council's fishing year 2021 redfish recommendation in Framework 61 and, as such, these sub-components will be reduced accordingly. The default catch limits are effective from May 1 through July 31, or until the final rule for Framework 61 is implemented if prior to July 31. To comply with these regulations and minimize impacts on the fishery we are announcing these default specifications. If Framework 61 is not in place on or before July 31, all fishing for these stocks will be prohibited beginning August 1.

This rule allocates ACE to sectors based on the preliminary fishing year 2021 sector rosters and the 2021 catch limits established in Framework 59 and default specifications, as shown in Table 1 above. Any permits that change ownership after the enrollment deadline established by the Regional Administrator (March 8 for fishing year 2021) retain the ability to join a sector through April 30, 2021. All permit holders who have joined a sector for fishing year 2021 have until April 30, 2021, to withdraw and elect to fish in the common pool, although sectors may specify a more restrictive withdrawal date for their members. As a result, the total permits enrolled in sectors for fishing year 2021 could change from the preliminary rosters, although such changes are expected to be minimal based on past fishing years. For fishing year 2022, we will set similar roster deadlines, notify permit holders of the fishing year 2022 deadlines, and allow permit holders to change sectors separate from the annual sector operations plans approval process.

We calculate a sector's allocation for each stock by summing its members' potential sector contributions (PSC) for a stock and then multiplying that total percentage by the available commercial sub-ACL for that stock. Table 2 shows the preliminary total fishing year 2021 PSCs for each sector for fishing year 2021. Tables 3 and 4 show the initial allocations that each sector is allocated, in pounds and metric tons, respectively, for fishing year 2021 based on their preliminary fishing year 2021 rosters and the fishing year 2021 Framework 59 and default specifications. At the start of the 2021 fishing year, we provide final allocations, to the nearest pound, to each sector based on their final May 1 rosters. We use these final allocations, along with later adjustments for ACE transfers, reductions for overages, or increases for carryover from fishing year 2020, to monitor sector catch. We have included the preliminary common pool sub-ACLs in tables 2 through 4 for comparison. These tables do not represent the final allocations for the 2021 fishing year.

We do not assign each permit separate PSCs for Eastern GB cod or Eastern GB haddock; instead, we assign each permit a PSC for the GB cod stock and GB haddock stock. Each sector's GB cod and GB haddock allocations are then divided into an Eastern ACE and a Western ACE, based on each sector's percentage of the GB cod and GB haddock ACLs. For example, if a sector is allocated 4 percent of the GB cod ACL and 6 percent of the GB haddock ACL, the sector is allocated 4 percent of the commercial Eastern U.S./Canada Area GB cod TAC and 6 percent of the commercial Eastern U.S./Canada Area GB haddock TAC as its Eastern GB cod and haddock ACEs. These amounts are then subtracted from the sector's overall GB cod and haddock allocations to determine its Western GB cod and haddock ACEs. A sector may only harvest its Eastern GB cod and haddock ACEs in the Eastern U.S./Canada Area, but may “convert,” or transfer, its Eastern GB cod or haddock allocation into Western GB allocation and fish that converted ACE outside the Eastern GB area.

At the start of fishing year 2021, we may withhold 20 percent of each sector's fishing year 2021 allocation until we finalize fishing year 2020 catch information. We expect to finalize 2020 catch information in summer 2021. We allow sectors to transfer fishing year 2020 ACE for 2 weeks upon our completion of year-end catch accounting to reduce or eliminate any fishing year 2020 overages. If necessary, we reduce any sector's fishing year 2021 allocation to account for a remaining overage in fishing year 2020. Each year of the operations plans, we notify the Council and sector managers of this deadline in writing and announce our final ACE determination on our website at: https://www.greateratlantic.fisheries.noaa.gov/ro/fso/reports/h/groundfish_catch_accounting.