The FRTIB administers the Thrift Savings Plan (TSP), which was established by the Federal Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514. The TSP provisions of FERSA are codified, as amended, largely at 5 U.S.C. 8351 and 8401-79. The TSP is a tax-deferred retirement savings plan for Federal civilian employees and members of the uniformed services. The TSP is similar to cash or deferred arrangements established for private-sector employees under section 401(k) of the Internal Revenue Code (26 U.S.C. 401(k)).

The FRTIB has reorganized the Office of Participant Services and Office of Communications and Education into a new Office of Participant Experience. This amendment to 5 CFR 1631.3 revises references to former offices of the FRTIB to reflect their new name.

The FRTIB is promulgating these corrections without advance notice or an opportunity for comment because the FRTIB for good cause finds that notice and public comment are unnecessary, impracticable, or contrary to the public interest under the “good cause” exemption of the Administrative Procedure Act (“APA”). 5 U.S.C. 553(b)(B). The FRTIB finds that notice and comment are unnecessary here because these corrections are merely typographical and technical; they effect no substantive changes to any rule. For the same reason, these corrections fall within the “good cause” exception to the delayed effective date provisions of the APA and the Congressional Review Act. 5 U.S.C. 553(d)(3) and 808(2). Accordingly, these corrections are effective upon publication in the Federal Register .

This regulation will not have a significant economic impact on a substantial number of small entities. This regulation will affect Federal employees, members of the uniformed services who participate in the TSP, and beneficiary participants.

This regulation does not require additional reporting under the criteria of the Paperwork Reduction Act.

Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 632, 653, and 1501-1571, the effects of this regulation on State, local, and tribal governments and the private sector have been assessed. This regulation will not compel the expenditure in any one year of $100 million or more by State, local, and tribal governments, in the aggregate, or by the private sector. Therefore, a statement under 2 U.S.C. 1532 is not required.

Pursuant to 5 U.S.C. 801(a)(1)(A), the FRTIB submitted 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 before publication of this rule in the Federal Register . This rule is not a major rule as defined at 5 U.S.C. 804(2).

For the reasons stated in the preamble, the FRTIB amends 5 CFR Chapter VI as follows:

I. Background

The RHS, an agency of the USDA, offers a variety of programs to build or improve housing and essential community facilities in rural areas. RHS offers loans, grants, and loan guarantees for single- and multi-family housing, childcare centers, fire and police stations, hospitals, libraries, nursing homes, schools, first responder vehicles and equipment, and housing for farm laborers. RHS also provides technical assistance loans and grants in partnership with non-profit organizations, Indian Tribes, State and Federal government agencies, and local communities.

Title V of the Housing Act of 1949 (Act) authorized the USDA to make housing loans to farmers to enable them to provide habitable dwellings for themselves or their tenants, lessees, sharecroppers, and laborers. The USDA then expanded opportunities in rural areas, making housing loans and grants to rural residents through the Single-Family Housing (SFH) and Multi-Family Housing (MFH) Programs.

The RHS operates the MFH section 515 RRH direct loan program. The section 515 program employs a public-private partnership by providing subsidized loans at an interest rate of one percent to developers to construct or renovate affordable rental complexes in rural areas. This one percent loan keeps the debt service on the property sufficiently low to support below-market rents affordable to low-income tenants. Many of these projects also utilize low-income housing tax credit proceeds.

The RHS also operates the MFH FLH direct loan and grant programs under sections 514 and 516 which provide low interest loans and grants to provide housing for farmworkers. These eligible farmworkers may work either at the borrower's farm (“on-farm”) or at any other farm (“off-farm”). This final rule is designed to increase flexibility in project refinancing for additional capital improvements needed for a section 515 or 514, 516 MFH property.

RHS published a proposed rule on January 9, 2023 [88 FR 1149], in the Federal Register to solicit comments on the proposed updates to 7 CFR part 3560 and changes related to the administration of property reserve accounts under the MFH section 515, RRH, and section 514, 516 FLH programs. The MFH direct loan project's general operating account is deemed to contain surplus funds when the balance at the end of the housing project's fiscal year, after all payables, exceeds 20 percent of the operating and maintenance expenses. When a MFH property's Agency-approved budget results in surplus cash at the end of the year, this change to the current regulation will allow the borrower to use surplus cash to fund Agency-approved soft debt. MFH approved soft-debt is a type of debt that generally (1) is not immediately due and payable, (2) has lenient repayment terms, and/or (3) has no-interest or low-interest rates, for example a “cash flow note”. Soft debt is often provided by State or local government as vital, additional sources of MFH direct loan property rehabilitation funding. This final rule change will allow owners the flexibility to access surplus cash notes as a new source of capital for property improvements, and to implement operating cost increases in property reserve contributions. It is designed to increase flexibility in project refinancing for additional capital improvements under 7 CFR 3560.306 to implement changes related to the administration of property reserve accounts under the MFH section 515, RRH, and section 514, 516 FLH programs.

In response to the published proposed rule on January 9, 2023 [88 FR 1149], RHS received two identical comments from one respondent with positive feedback on the MFH programs. The comment did not include direct statements regarding the proposed changes and is not applicable to the contents of the rule. The comments did not result in the Agency changing plans for the final rule.

The changes to amend 7 CFR 3560.306 include reducing debt service on other third-party debt, as an allowable use of funds, including payments toward cash flow notes. Allowing borrowers to use surplus funds to repay third-party debt would allow those borrowers to access State and local government funding available as a capital source for property improvements. Acceptable third-party debt, including cash flow notes, will take the form of a written agreement for the payment of an Agency-approved debt obligation, with or without interest. Payments may occur only after approval has been granted by the Agency. These changes are designed to improve property condition and increase tools available to borrowers to preserve properties as affordable housing resources. This final rule no longer includes the reduction in rents as an allowable use of surplus funds, as rent-setting is part of the annual proposed budget process and should not be included in the reserve account section of this regulation. These changes are designed to improve property condition and increase tools available to borrowers to preserve properties as affordable housing resources.

The RRH and FLH programs are authorized under sections 514, 515, 516 of title V of the Housing Act of 1949, as amended (42 U.S.C. 1484-86); and implemented under 7 CFR part 3560. Section 510(k) of Title V the Housing Act of 1949 (42 U.S.C. 1480(k)), as amended, authorizes the Secretary of Agriculture to promulgate rules and regulations as deemed necessary to carry out the purpose of that title.

These loans are subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. RHS conducts intergovernmental consultations for each loan in accordance with 2 CFR part 415, subpart C.

This final rule has been determined to be non-significant and, therefore, was not reviewed by the Office of Management and Budget (OMB) under Executive Order 12866.

This final rule has been reviewed under Executive Order 12988. In accordance with this rulemaking: (1) Unless otherwise specifically provided, all State and local laws that conflict with this rulemaking will be preempted; (2) no retroactive effect will be given to this rulemaking except as specifically prescribed in the rule; and (3) administrative proceedings of the National Appeals Division of the Department of Agriculture (7 CFR part 11) must be exhausted before suing in court that challenges action taken under this rulemaking.

The policies contained in this final rule do not have any 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. This final rule does not impose substantial direct compliance costs on State and local governments; therefore, consultation with States is not required.

This executive order imposes requirements on RHS in the development of regulatory policies that have Tribal implications or preempt Tribal laws. RHS has determined that the final rule does not have a substantial direct effect on one or more Indian Tribe(s) or on either the relationship or the distribution of powers and responsibilities between the Federal Government and Indian Tribes. Thus, this final rule is not subject to the requirements of Executive Order 13175. If Tribal leaders are interested in consulting with RHS on this rulemaking, they are encouraged to contact USDA's Office of Tribal Relations or RD's Tribal Coordinator at: AIAN@usda.gov to request such a consultation.

This document has been reviewed in accordance with 7 CFR part 1970, subpart A, “Environmental Policies.” RHS determined that this action does not constitute a major Federal action significantly affecting the quality of the environment. In accordance with the National Environmental Policy Act of 1969, Public Law 91-190, an Environmental Impact Statement (EIS) is not required.

This final rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). The undersigned has determined and certified by signature on this document that this final rule will not have a significant economic impact on a substantial number of small entities since this rulemaking action does not involve a new or expanded program nor does it require any more action on the part of a small business than required of a large entity.

Title II of the UMRA, Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and on the private sector. Under section 202 of the UMRA, Federal agencies generally must prepare a written statement, including cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires a Federal agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule.

This final rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and Tribal governments or for the private sector. Therefore, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA.

The information collection requirements contained in this regulation have been approved by OMB and have been assigned OMB control number 0575-0189. This final rule contains no new reporting and recordkeeping requirements that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).

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

RD has reviewed this final rule in accordance with USDA Regulation 4300-4, Civil Rights Impact Analysis, to identify any major civil rights impacts the final rule might have on program participants on the basis of age, race, color, national origin, sex, or disability. After review and analysis of the final rule and available data, it has been determined that implementation of the rulemaking will not adversely or disproportionately impact very low, low- and moderate-income populations, minority populations, women, Indian Tribes, or persons with disability by virtue of their race, color, national origin, sex, age, disability, or marital or familial status. No major civil rights impact is likely to result from this final rule.

The program affected by this regulation is listed in the Assistance Listing Catalog (formerly Catalog of Federal Domestic Assistance) under number 10.415-Rural Rental Housing Loans.

In accordance with Federal civil rights laws and USDA civil rights regulations and policies, the USDA, its Mission Areas, agencies, staff offices, employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Program information may be made available in languages other than English. Persons with disabilities who require alternative means of communication to obtain program information ( e.g., Braille, large print, audiotape, American Sign Language) should contact the responsible Mission Area, agency, or staff office; or the 711 Relay Service.

To file a program discrimination complaint, a complainant should complete a Form AD-3027, USDA Program Discrimination Complaint Form, which can be obtained online at https://www.usda.gov/sites/default/files/documents/ad-3027.pdf from any USDA office, by calling (866) 632-9992, or by writing a letter addressed to USDA. The letter must contain the complainant's name, address, telephone number, and a written description of the alleged discriminatory action in sufficient detail to inform the Assistant Secretary for Civil Rights (ASCR) about the nature and date of an alleged civil rights violation. The completed AD-3027 form or letter must be submitted to USDA by:

a. Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410; or

b. Fax: (833) 256-1665 or (202) 690-7442; or

c. Email: program.intake@usda.gov.

For the reasons discussed in the preamble, the Agency amends 7 CFR part 3560 as follows:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Canada Limited Partnership (Type Certificate previously held by C Series Aircraft Limited Partnership (CSALP); Bombardier, Inc.) Model BD-500-1A10 and BD-500-1A11 airplanes. The NPRM published in the Federal Register on August 14, 2023 (88 FR 54949). The NPRM was prompted by AD CF-2022-70, dated December 21, 2022, issued by Transport Canada, which is the aviation authority for Canada (Transport Canada AD CF-2022-70) (also referred to as the MCAI). The MCAI states there have been several findings of mechanical wear damage on the motive flow fuel-feed tubes that were secured by bonding clamps and clamp blocks inside the collector tank. In some instances, the wear damage led to a hole in a motive flow fuel-feed tube resulting in a fuel imbalance during flight that required the flightcrews to correct the imbalance using the gravity transfer system. Failure of the affected motive flow fuel-feed tubes and a subsequent failure of the gravity transfer system could lead to a fuel imbalance condition resulting in a reduction in airplane functional capabilities and increased crew workload.

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

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1709.

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

The FAA received additional comments from one commenter, Delta Air Lines (Delta). The following presents the comments received on the NPRM and the FAA's response to each comment.

Delta requested that an exception be added to paragraph (h) of the proposed AD to clarify the steps in vendor service bulletin referenced in Airbus Service Bulletin BD500-282015 Issue 003, dated November 10, 2022, until Issue 004 is published. Delta noted that when Airbus Service Bulletin BD500-282015 Issue 004 is published, operators can use Issue 004 as specified in Transport Canada AD CF-2022-70, which includes the text “ACLP SB BD500-282015, Issue 003, dated 10 November 2022, or later revisions approved by the Chief, Continuing Airworthiness, Transport Canada.”

The FAA agrees that operators can use Airbus Service Bulletin BD500-282015 Issue 004 that was published on December 4, 2023, which includes changes to the steps in the vender service bulletin referenced in Airbus Service Bulletin BD500-282015 Issue 003, dated November 10, 2022. However, the FAA has not added an exception to this AD because the MCAI, which is incorporated by reference, already permits later approved revisions of the service information. In any event, operators can use Airbus Service Bulletin BD500-282015 Issue 003, dated November 10, 2022, without exceptions, to address the unsafe condition.

Delta requested another exception be added to paragraph (h) of the proposed AD to allow performing step 2.7 in lieu of step 2.6 of Airbus Service Bulletin BD500-282015 Issue 003, dated November 10, 2022. Step 2.6 states “On the fuel tube (1), if there is damage to the paint only (with no bare metal visible)” and Step 2.7 states “On the fuel tube (1), if there is damage and bare metal is exposed.” Determining paint damage to a fuel tube is subjective and difficult to ensure just paint was removed. Delta would like to replace the motive flow tubes instead of repairing them as required in Step 2.6. Delta stated that during the accomplishment of Step 2.5 that requires a visual inspection of the fuel tube (1) for damage, the option to replace the fuel tube(s) should be made available.

The FAA agrees with the request. Paint damage assessment is subjective and replacing the fuel tube(s) is an acceptable method of compliance instead of repairing the fuel tube(s). The FAA has changed this AD to include an additional exception to paragraph (h) of this AD.

Delta requested that the FAA identify required for compliance (RC) steps in the vendor service information referenced in Airbus Service Bulletin BD500-282015 Issue 003, dated November 10, 2022. Delta stated there is no RC paragraph in the vendor service information and that there are errors in the open-up steps. Delta stated that it is important for the FAA to identify RC steps so that operators can correctly gain access to the motive flow tubes in collector tanks common to Ribs 5-6 of the left-hand and right-hand wing.

The FAA acknowledges the commenter's request; however, although the vendor service information does not identify RC steps, it does allow operators to use alternative access. In the job set-up section of the vendor service information, it specifies that “The steps in the Job set-up section of this service bulletin are recommended steps. The steps give a recommendation to get access to the work area. This recommendation is to give a safe work area and to minimize possible damage to surrounding aircraft parts. Alternative steps can be used at the discretion of the operator.” The FAA has not changed this AD in this regard.

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

Transport Canada AD CF-2022-70 specifies procedures for performing a repetitive operational check of the gravity cross flow shut-off valve and, for certain airplanes, inspecting the motive flow fuel-feed tubes for mechanical wear damage (damage includes cracks, scores, scratches, nicks, and gouges) and pre-load condition, and, based on findings, replacing the motive flow fuel-feed tube. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

The FAA estimates that this AD affects 84 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2018-14-09, Amendment 39-19329 (83 FR 34034, July 19, 2018) (AD 2018-14-09). AD 2018-14-09 applied to certain Airbus SAS Model A318 series airplanes; Model A319 series airplanes; Model A320-211, -212, -214, -216, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. AD 2018-14-09 required repetitive inspections for cracking of the fastener holes in certain fuselage frames, and depending on airplane configuration, provides an optional terminating action to the repetitive inspections. The FAA issued AD 2018-14-09 to address cracking at two upper rows of fasteners of the crossbeam splicing at frame (FR)16 and FR20, on both the left-hand (LH) and right-hand (RH) sides, which can result in reduced structural integrity of the airplane due to the failure of structural components.

The NPRM published in the Federal Register on November 6, 2023 (88 FR 76147). The NPRM was prompted by AD 2023-0150, dated July 20, 2023 (EASA AD 2023-0150) (also referred to as the MCAI), issued by EASA, which is the Technical Agent for the Member States of the European Union. The MCAI states that repetitive inspections were instituted due to reports of cracks on the four holes of the crossbeam splicing at FR16 and FR20 on both LH and RH sides. Following further assessments, the need was determined for additional inspections, reduced compliance times, and an additional terminating action option.

In the NPRM, the FAA proposed to continue to require repetitive inspections for cracking of the fastener holes in certain fuselage frames, and depending on airplane configuration, to provide an optional terminating action to the repetitive inspections, as specified in EASA AD 2023-0150. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-2144.

The FAA received comments from American Airlines and United Airlines. The following presents the comments received on the NPRM and the FAA's response.

American Airlines and United Airlines requested that the proposed AD be changed to allow the use of previously issued AMOCs including global AMOC AIR-731-23-00448, dated September 19, 2023, for certain actions of AD 2018-14-09 that are retained in this AD.

The FAA agrees and has redesignated paragraph (j)(1) of the proposed AD as paragraphs (j)(1) and (j)(1)(i) of this AD and has added paragraph (j)(1)(ii) of this AD to allow the use of applicable previously issued AMOCs.

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

EASA AD 2023-0150 specifies procedures for repetitive rototest inspections for cracking of the holes in certain fuselage frames and crossbeams and applicable corrective actions (including repairing cracking and replacing fasteners); and, for certain airplanes, procedures for modifying the airplane, including cold working instructions in certain fuselage frames and crossbeams, which would terminate the inspections (optional terminating action). This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 1,680 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A318, A319, A320, and A321 airplanes. The NPRM published in the Federal Register on October 31, 2023 (88 FR 74376). The NPRM was prompted by AD 2023-0138, dated July 13, 2023 (EASA AD 2023-0138) (also referred to as the MCAI), issued by EASA, which is the Technical Agent for the Member States of the European Union. The MCAI states that new airworthiness limitations are necessary.

In the NPRM, the FAA proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, as specified in EASA AD 2023-0138.

The FAA is issuing this AD to address safety-significant latent failures (that are not annunciated), which, in combination with one or more other specific failures or events, could result in a hazardous or catastrophic failure condition.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-2138.

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

The FAA also received comments from Delta Air Lines. The following presents the comments received on the NPRM and the FAA's response to each comment.

Delta requested clarification of the statement in paragraph (i) of the proposed AD that references later-approved revisions within the “Ref. Publications” section of EASA AD 2023-0138. Delta requested adding an exception in paragraph (h) of the proposed AD that replaces the language in the EASA AD 2023-0138 section “Ref. Publications” from “the above-mentioned document, or of an ALS revision” to “the above-mentioned document, or of an ALS revision or variation.” Delta stated this change would help clarify whether an AMOC (alternative method of compliance) is required to use future variations of Airbus A318/A319/A320/A321 ALS Part 3 Certification Maintenance Requirements (CMR), Revision 08 (Var 8.3 or later).

Delta also requested clarification of the statement within the section “Ref. Publications” of EASA AD 2023-0138, referred to in paragraph (i) of the proposed AD, that references later-approved revisions “which include the technical content of the variation.” Delta wanted to know if a later-approved variation or revision is acceptable to use if the technical content of the variation is updated in some way, and not exactly the same. The commenter requested this clarification to better understand the allowance provided by the provisions of the “Ref. Publications” section of EASA AD 2023-0138.

The FAA disagrees with changing paragraph (h) of this AD. The later version of Airbus A318/A319/A320/A321 ALS Part 3 Certification Maintenance Requirements (CMR) would be acceptable for compliance as long as EASA has also approved it. Any subsequent issue of that document containing the technical information presented in that variation that has been approved by the certifying authority can be used without the need to obtain an AMOC. For confirmation regarding the appropriateness of using service information associated with this AD, Delta may contact their local FAA office for further guidance.

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

The FAA reviewed EASA AD 2023-0138, which specifies new or more restrictive airworthiness limitations for airplane structures and safe life limits. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 1,680 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Accordingly, pursuant to the authority delegated to me, 14 CFR part 97 is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

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

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

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

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

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

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

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

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

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

On February 24, 2016, President Obama signed into law the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), which contains Title IV—Prevention of Evasion of Antidumping and Countervailing Duty Orders (short title “Enforce and Protect Act of 2015” or “EAPA”) (Pub. L. 114-125, 130 Stat. 122, 155 (Feb. 24, 2016) (19 U.S.C. 4301 note)). EAPA established a formal process for U.S. Customs and Border Protection (CBP) to investigate allegations of evasion of antidumping and countervailing duty (AD/CVD) orders. Section 421 of TFTEA amended the Tariff Act of 1930 by establishing a new framework for CBP to investigate allegations of evasion of AD/CVD orders, under newly created section 517 (“Procedures for Investigating Claims of Evasion of Antidumping and Countervailing Duty Orders”), and required that regulations be prescribed as necessary, and provisions be implemented within 180 days of TFTEA's enactment. See 19 U.S.C. 1517.

On August 22, 2016, CBP published an interim final rule (the “IFR”) (CBP Dec. 16-11) in the Federal Register (81 FR 56477), setting forth procedures for the investigation of claims of evasion of antidumping and countervailing duty orders in a new part 165 in title 19 of the Code of Federal Regulations (19 CFR part 165), with a 60-day public comment period. The IFR became effective on August 22, 2016. On September 8, 2016, CBP published a technical correction in the Federal Register (81 FR 62004) to correct language in the definition of “evade or evasion” in 19 CFR 165.1, by adding a comma that was inadvertently omitted. On October 21, 2016, CBP published an extension of the comment period in the Federal Register (81 FR 72692), providing an additional 60 days for interested persons to submit comments in response to the IFR in order to have as much public participation as possible in the formulation of the final rule.

The first EAPA allegation was submitted to CBP in September 2016, approximately one month after the interim regulations became effective. Between September 2016 and the end of fiscal year 2021, CBP's Trade Remedy Law Enforcement Directorate (TRLED) has processed approximately 490 EAPA allegations and initiated 179 investigations; in addition, CBP has processed 39 requests for administrative review and issued 19 final administrative determinations.

In these past few years, CBP has gained considerable expertise processing EAPA allegations and has continued to ensure that EAPA proceedings are transparent and that all parties are afforded an opportunity for full participation and engagement during the investigation. To enhance convenience and provide further transparency, on April 1, 2021, CBP deployed the EAPA Portal, an electronic case management system for the filing, tracking, and adjudicating of EAPA allegations, and maintaining an administrative record, in one centralized location, which may be accessed on CBP's website at https://www.cbp.gov/trade/trade-enforcement/tftea/eapa when clicking on the field titled “Filing an EAPA Allegation.”  1

In the EAPA Portal, parties to the investigation may view decisions and public administrative record documents (including public versions of documents associated with the investigation), check the status of the investigation, and submit factual information, written arguments, and documents relevant to the investigation. The EAPA Portal also sends notifications to the parties to the investigation with deadline reminders and actions to be taken. In addition, when this final rule is effective, an alleger will be able to withdraw an allegation and a Federal agency will be able to withdraw a request for an investigation (referral) in the EAPA Portal. 2 With a new case management system in place, and CBP's extensive experience with the current EAPA process, CBP is now ready to finalize the interim regulations, with several modifications as described below.

Although the interim regulatory amendments were promulgated without prior public notice and comment procedures pursuant to the agency organization, procedure, and practice exemption in 5 U.S.C. 553(b)(A), the IFR provided for the submission of public comments that would be considered by CBP before adopting the interim amendments as final. The 60-day public comment period was set to end on October 21, 2016, but was extended that day for an additional 60 days. The extended comment period closed on December 20, 2016.

CBP received 17 submissions in response to the publication of the interim regulations, each of them including comments on multiple topics. The comments involved various aspects of the EAPA process, from the initiation of an investigation to the administrative review of a determination as to evasion. CBP reviewed all public comments received in response to the interim final rule and made some changes to the interim regulations based on those comments. In addition, CBP has included some clarifications where needed to ensure a transparent investigation process. A description of the public comments received, along with CBP's analysis, are set forth below. The comments and responses have been grouped together by subpart of the EAPA regulations, where appropriate.

Subpart A (General Provisions) provides definitions of terms relevant to the EAPA process, specifies the entries that may be the subject of an allegation, identifies when a power of attorney is required, and addresses the submission of business confidential information. This subpart further sets forth the means by which CBP may obtain information for EAPA proceedings, addresses the circumstances when CBP may apply adverse inferences in an EAPA investigation and in an administrative review, and details the reporting responsibilities in case of public health and safety issues associated with an investigation. Multiple comments were received regarding subpart A, dealing with questions on the various definitions in § 165.1, and the submission requirements in §§ 165.3 and 165.5. Some commenters requested clarification on certain aspects of the application of adverse inferences in case of a party's failure to comply with CBP's request for information.

Comment: Multiple commenters stated that CBP should not require the identification of an importer as a condition for initiation of an investigation. The commenters noted that Congress did not require the identification of an importer of record and that by doing so, CBP could be encouraging the proliferation of shell or paper companies to act as importers. The commenters further stated that TFTEA instructed CBP to investigate any allegation that reasonably suggests that covered merchandise has been entered into the customs territory of the United States through evasion. Therefore, the commenters suggest that CBP should remove the phrase “by an importer” in § 165.1 in the “allegation” definition, and, for the same reason, remove references to the identification of an importer in various sections of part 165, such as §§ 165.4(c)(3), 165.11(b)(3) and 165.14(b)(1). One commenter referenced the Trade Secrets Act (18 U.S.C. 1905) and the statute's goal to bar against unauthorized disclosure by government officials of confidential information received in the course of their employment or official duties, which could include the identity of an importer. The commenter argued that CBP may protect the identity of an importer without having to narrow the scope of the investigation by simply not requiring the specific identification of an importer of record in an allegation.

Response: CBP disagrees with the commenters' suggestion to remove language in the regulations that requires that an alleger provide the identity of the importer against whom an allegation is filed. The text of 19 U.S.C. 1517(b)(2) refers to “. . . an allegation that a person has entered covered merchandise . . .” (emphasis added), which requires the specific identification of an importer. Removing the reference to “a person,” i.e., an importer, in the regulations, would require a statutory change prior to making a change in the regulation. Furthermore, CBP considers the requirements in the regulations to be consistent with the Trade Secrets Act. While the Trade Secrets Act protects against the unauthorized disclosure of confidential information, CBP does not consider the identity of the importer to be confidential. In fact, § 165.4(c)(3) specifically states that the name and address of an importer against whom the allegation is brought is not protected as business confidential information.

Comment: One commenter requested that an illustrative list of examples of evasion schemes be included in the definition of “evade or evasion” in § 165.1.

Response: CBP agrees with the commenter that it would be helpful to add some examples of evasion to the definition, such as the transshipment, misclassification and/or undervaluation of covered merchandise. Accordingly, CBP has added such language at the end of the definition of “evade or evasion” in § 165.1.

Comment: One commenter expressed concern that the EAPA provisions would be misused by domestic interested parties or competitors in an effort to disrupt the supply chains of foreign producers and U.S. importers. Another commenter raised the concern that the EAPA provisions have the potential to brand innocent importers as evaders of the law, regardless of their good faith efforts to comply with AD/CVD orders.

Response: While CBP understands these concerns, CBP carefully investigates and reviews the evidence, in accordance with all applicable legal requirements, at each stage of the process before making a determination as to evasion.

Comment: Multiple commenters asked CBP to expand the list of interested parties who are allowed to participate in EAPA investigations. The commenters argued that the limitation in the interim regulations deprives CBP of the resources, experience, and insights from other domestic producers or importers, especially in cases when Federal agencies request an investigation, such that the domestic industry affected by the evasion would have no right to provide information or otherwise participate in the investigation. One of the commenters suggested to amend the regulation to include in an EAPA investigation, whether initiated pursuant to the filing of an allegation by an interested party or pursuant to a request by a Federal agency, “any other party meeting the definition of “interested party” in § 165.1 that submits an entry of appearance to CBP in a timely fashion,” in addition to the interested party who filed an allegation and the importer who allegedly engaged in evasion. Two other commenters stated that CBP should expand the regulatory definition of “interested party” to align with the broader statutory definition of the “United States importer” in section 517(a)(6)(A)(i) of the Tariff Act of 1930.

Response: CBP disagrees with the commenters' requests to expand the list of interested parties who are allowed to participate in EAPA investigations. The primary focus of CBP's determination in an EAPA investigation is narrow, i.e., whether evasion, as defined by 19 U.S.C. 1517(a)(5), occurred or not. CBP's current EAPA process does not allow for interested parties other than the alleger to participate during the first 90 days of an investigation.

Moreover, the regulatory definition of the term “interested party” aligns with the statutory definition. See 19 U.S.C. 1517(a)(6)(A) and 19 CFR 165.1. Both provisions allow for interested parties to participate in an investigation by filing an allegation. The statutory definition for “interested party” includes, inter alia, the United States importer of covered merchandise. The regulatory definition of an “interested party” in § 165.1, which is not limited to importers of record, but includes any importer of covered merchandise, including the party against whom the allegation is brought, is consistent with the statutory definition.

Comment: One commenter suggested to limit the definition of the term “importer” to an importer of record of covered merchandise and amend the definition of “interested party” in § 165.1 accordingly. The commenter argued that CBP did not provide any reason for expanding the definition beyond the importer of record, and thus only the alleger and alleged evader should be included in the definition.

Response: CBP disagrees with the commenter's definition of “importer.” In current practice, allegations are usually made against importers of record of covered merchandise, in accordance with the statute. However, CBP has defined the term “importer” by regulation in 19 CFR 101.1 as the importer of record, the consignee, the actual owner of the merchandise, or the transferee of the merchandise, and CBP may initiate investigations against such parties if an allegation reasonably suggests that evasion is occurring.

Comment: Multiple commenters asked for clarification of the interaction of the evasion provisions with the penalties provision (section 592 of the Tariff Act of 1930, as amended (19 U.S.C. 1592)), the impact of a prior disclosure pursuant to section 592(c)(4) on an EAPA investigation, and identification of appropriate cases involving AD/CVD orders where penalties would be contemplated and potentially assessed. One of the commenters opined that an EAPA investigation is not a section 592 investigation and cannot lead to a section 592 penalties matter; thus, the investigation definition in § 165.1 should be deleted. Another commenter suggested that CBP clarify in § 165.28(a) that CBP is not required to initiate any other actions, including a section 592 proceeding. Lastly, a commenter asked for the revision of § 165.11 to expressly provide that the filing of an evasion allegation operates as a “formal investigation” to preclude the acceptance of a prior disclosure, with regard to the same set of facts, importer(s), entries and AD/CVD orders, under 19 U.S.C. 1592.

Response: CBP welcomes the opportunity to provide some clarification in response to the comments received on the interaction between an EAPA investigation and section 592 actions, as well as the impact of a prior disclosure on an EAPA investigation. An importer may be precluded from filing a prior disclosure for violations discovered during the course of an EAPA investigation but may not be precluded from filing a prior disclosure for violations discovered outside of the course of the EAPA investigation. The determination of whether a prior disclosure is accepted requires a fact-specific assessment as to the importer(s), entries and AD/CVD order(s) involved. In addition, CBP disagrees with the commenter's request for a regulatory change to the “investigation” definition in § 165.1 as the definition is accurate and should not be removed. CBP retains the discretion to accept or reject a prior disclosure for any facts that were not discovered during the course of an EAPA investigation.

Further, CBP does not agree with the amendment of § 165.28(a), as one of the commenters suggested. CBP appreciates the opportunity to clarify that CBP is not required to initiate any other actions, including section 592 proceedings. If CBP finds that entries are already liquidated when an affirmative determination as to evasion is made, then CBP's recourse to recover the lost duties is to initiate a section 592 proceeding or any other appropriate action separate from the EAPA proceeding. If TRLED makes an affirmative determination of evasion, pursuant to § 165.27, a Center of Excellence and Expertise (Center) will be directed to collect cash deposits and take other enforcement actions as necessary. TRLED may also refer the case to other components within CBP and partner government agencies (PGAs) to review the facts and perhaps assess a penalty, depending on the circumstances.

Finally, CBP disagrees with the last commenter, that an EAPA investigation operates as a formal investigation and precludes prior disclosure under 19 U.S.C. 1592. The importer who is alleged to have engaged in evasion will have the burden to show that it is not aware of an ongoing investigation. If the importer is able to do so, and meets all other relevant criteria, then the importer may have the opportunity to file a prior disclosure with CBP.

Comment: Multiple commenters stated that the one-year threshold for entries that may be the subject of an allegation is too narrow as it severely restricts the allegations that can be pursued, and thus should be eliminated. One of the commenters argued that there is no statutory support for this limitation. Another commenter suggested the application of a statute of limitations (SOL) that is consistent with the SOL for violations of section 592 of the Tariff Act of 1930, as amended, in order to provide interested parties with sufficient time to uncover evasion and prepare an allegation. See 19 U.S.C. 1621. Finally, one commenter expressed support for the regulation and claimed that only entries made within one year before receipt of an allegation may be the subject of an allegation.

Response: CBP appreciates the comments but disagrees that CBP is limited to investigating entries of merchandise made within one year before the receipt of an allegation. As stated in the preamble of the IFR, CBP deemed a one-year period for an EAPA investigation appropriate as it would allow for a timely determination using current and readily available information, and prevent situations where CBP would encounter entries that were already liquidated, or importers that are no longer active. See 81 FR 56477, at 56479. Notwithstanding the above, the regulations provide CBP with the discretion to investigate other entries of such covered merchandise, and CBP will exercise such authority on a case-by-case basis. See 19 CFR 165.2.

Comment: One commenter stated that § 165.3 does not specify what action CBP will take if the required proof of execution of a power of attorney is missing.

Response: CBP agrees with the commenter's statement and, accordingly, has added a new paragraph (f) in § 165.3, clarifying that CBP will reject any submission, and not consider or place such submission on the administrative record, if a party has not provided proof of execution of a power of attorney to CBP, as required pursuant to the first sentence of paragraph (e) of § 165.3, within five business days of an interested party's first submission during an investigation or administrative review. CBP further added language in the new paragraph (f), that CBP will reject any submission, and not consider or place such submission on the administrative record, if a party has not provided proof of authority to execute a power of attorney pursuant to paragraph (c) of § 165.3 upon CBP's request.

Comment: One commenter stated that CBP did not specify what action it may take if a submission fails to meet the form requirements of § 165.5(b)(1), and thus proposed to add a paragraph (b)(4) to include the rejection of a submission as a consequence for failure to meet those requirements.

Response: CBP welcomes the opportunity to clarify that CBP will reject a submission that does not fulfill the form requirements of § 165.5(b)(1), and will not consider or place it on the administrative record. Accordingly, CBP added a new paragraph (b)(4) in § 165.5 to reflect this clarification. For the same reasons, CBP amended § 165.41(f) to clarify that CBP will reject a request for administrative review if the content requirements in paragraph (f) are not met.

Comment: One commenter stated that it is unclear whether the person making a submission pursuant to § 165.5(b)(2) can be the authorized representative of the party, the party itself, or both. The commenter stated that the final regulation should clarify who needs to sign each type of certification.

Response: CBP disagrees with the commenter's statement. The interim regulation is clear as it reads “on behalf of,” allowing for an authorized representative, such as an attorney, in addition to the party itself to make the certification. Moreover, this has not been an issue in practice.

Comment: One commenter expressed concern that adverse inferences may be imposed on a party if an importer complies with CBP's request, but the foreign supplier does not. The commenter requested clarification as to whether evasion could be found in the described scenario with regard to the foreign supplier, but not the importer, and what such a finding would mean in terms of the application of duties or other measures. Another commenter expressed a similar concern and asked for § 165.5 to be amended to include a requirement that CBP notify the importer whenever CBP issues a questionnaire to a foreign supplier to give the importer the opportunity to leverage its relationship with the supplier to obtain the supplier's full cooperation and avoid adverse inferences.

Response: A determination of evasion is based on an analysis of the record, including responses to requests for information by both the U.S. importer and foreign manufacturer. The scenario where one party cooperates to the best of its ability, and another does not, creates a difficult situation for CBP to conduct its analysis, and thus evasion could still be found, depending on the available information. CBP evaluates carefully on a case-by-case basis and may apply adverse inferences as to the party not acting to the best of its ability to cooperate with the investigation, in accordance with 19 U.S.C. 1517(c)(3)(B). The consequences, if any, that flow from such a finding will vary on a case-by-case basis. With regard to the suggestion to include a notification requirement in § 165.5, CBP provides the public versions of all documents, including questionnaires, to all parties to the investigation and does not believe that any additional notifications are necessary.

Comment: Two commenters noted that the use of a party's behavior in a prior proceeding should not be an indicator for whether to apply adverse inferences in the current proceeding, as stated in § 165.6(b), arguing that only the party's behavior in the current proceeding should be relevant for adverse inferences. Another commenter asked CBP to amend paragraph (b) to clarify the distinction between the intent of paragraph (a) and paragraph (b) by stating that CBP may select from facts otherwise available, including information from a prior determination in another CBP investigation, when applying adverse inferences under paragraph (a).

One of the commenters also stated that the way paragraph (c) of § 165.6 is written, it unfairly applies adverse inferences even if the information sought is already on the record. According to the commenter, it should be irrelevant which party provided the information as long as the information was provided to CBP.

Response: CBP disagrees; section 165.6, as written, accurately reflects the statutory language. Both the statute and the regulation distinguish between adverse inferences to be applied when a party fails to cooperate and comply with CBP's request for more information in the current proceeding (§ 165.6(a) and section 412(b)(1)(A) of TFTEA), and adverse inferences to be applied based on a prior determination in another CBP proceeding, or any other available information (§ 165.6(b) and section 412(b)(2)(B) and (C) of TFTEA). However, to be clearer and avoid any confusion, CBP has revised § 165.6(b) so the regulatory language more closely resembles the statutory language in section 412(b)(2) of TFTEA, without making any changes to the substance of the language. In addition, CBP further amended § 165.6(b) to clarify that CBP may only consider “any other available information” that has been placed on the administrative record for purposes of applying adverse inferences.

CBP believes that when it comes to adverse inferences, the determination to be made is whether the party from whom CBP requested information provided the information. The fact that another party had already provided information to CBP does not relieve the party of its obligation to provide the requested information, as the other party's submission may have been incorrect or incomplete. Lastly, as to the commenter's unfairness argument, the regulations allow for due process via administrative review by CBP and judicial review by the U.S. Court of International Trade (CIT) in case an interested party believes that adverse inferences were inappropriately applied.

Comment: One commenter talked about instances where CBP requests information from a foreign government and receives no response, and stated that, in such situations, CBP would need to examine the facts available on the record to determine how to address the failure to respond, and reach a determination based on those facts available.

Response: CBP agrees as 19 U.S.C. 1517(c)(2)(a)(iv) and (c)(3) clearly state that CBP cannot apply adverse inferences as a result of failure of a foreign government to respond to a CBP information request. CBP will make a determination based on the facts available on the administrative record, which may include, among other things, adverse inferences made against other interested parties.

Comment: One commenter stated that the “to the best of its ability” standard in § 165.6(a) is vague and lacks a definition. The commenter argued that it is unclear as to what level of cooperation with CBP's information request is acceptable and what level is insufficient, making the regulatory language unfair.

Response: CBP disagrees with the commenter's statement. CBP ensures that the request procedure is transparent to those parties involved in an EAPA investigation by providing all documents on the administrative record. Further, the parties to the investigation, which include the party filing the allegation and the importer, and the foreign producer or exporter of the covered merchandise, are given sufficient time during an EAPA investigation to gather and provide the requested information to CBP. CBP then carefully evaluates the information on a case-by-case basis to determine whether the party cooperated and complied with CBP's request to the best of its ability and takes into account the specific circumstances surrounding each request before deciding whether adverse inferences are appropriate. The regulations also provide for due process in the form of administrative review and judicial review in cases where the importer is of the opinion that the “to the best of its ability” standard was met, but CBP nonetheless applied adverse inferences.

Subpart B (Initiation of Investigations) deals with the initiation of an investigation, such as the filing of an allegation by an interested party or a request for investigation (referral) by another Federal agency, specifies the date of receipt of an allegation, and discusses the consolidation of allegations, as well as referrals to the Department of Commerce (Commerce) to determine whether merchandise described in the allegation is properly within the scope of an AD/CVD order. Commenters submitted questions on the availability of technical assistance and guidance for small businesses and requested additional methods for withdrawal of allegations and requests from Federal agencies. CBP also received several comments surrounding the process of the consolidation of allegations, and CBP's notification procedures. Lastly, commenters asked for additional information about the timing of CBP's scope referral and Commerce's scope proceeding.

Comment: While one commenter supported the requirement in § 165.11(e) for CBP to provide technical assistance and guidance to small businesses, another commenter was concerned with the provision and stated that CBP should not assist small businesses with the preparation and filing of an allegation. The commenter argued that it should be the filing party's responsibility to meet the filing requirements in order to maintain a fair and transparent investigation.

Response: CBP appreciates the comments. Small businesses are entitled to technical assistance, upon request, from CBP if they satisfy the applicable standards set forth in 15 U.S.C. 632 and 13 CFR part 121. CBP notes that section 411(b)(4)(E) of TFTEA requires the provision of technical assistance and advice to eligible small businesses to prepare and submit an allegation. Furthermore, CBP encourages filings by small and medium businesses and continues to provide technical assistance to those businesses upon request.

Comment: One commenter suggested that CBP include a paragraph (f) in § 165.11, limiting communications with CBP to the parties to the investigation. The commenter asked CBP not to publicize the filing of an allegation or accept or respond to any unsolicited oral communication concerning the allegation or investigation from any person other than from a party to the investigation prior to a determination to not initiate an investigation under § 165.15, or a determination as to evasion under § 165.27(a).

Response: CBP disagrees with the commenter's request to include a paragraph (f) in § 165.11 that would limit communications to the parties to the investigation. CBP believes that the notice of initiation of an investigation, which includes facts and evidence from the submitted allegation, is the best time at which to notify all parties to the investigation, as well as the public, in an effort to make the EAPA proceedings as transparent as possible. If, and when, unsolicited information is submitted to CBP regarding an allegation or investigation, CBP has the discretion to decide, throughout the investigation, if it will place this information on the administrative record or not (including prior to the notice of initiation of an investigation).

Comment: Multiple commenters disagreed with the term “date of receipt” in § 165.12(a). The commenters argued that the overall intent of TFTEA is for CBP to proceed swiftly and adhere to strict deadlines, but claimed that the way the interim regulation is written, the date of receipt is entirely within CBP's control, and thus the regulatory language runs counter to the statutory language that states unambiguously that not later than 15 business days after receiving an allegation, CBP shall initiate an investigation. See 19 U.S.C. 1517(b)(1). For the same reasons, additional commenters requested that CBP specify the exact number of days within which CBP is required to issue an acknowledgment of receipt, one of the suggestions being that the deadline is no later than two days after receipt of the allegation.

Response: CBP disagrees with the commenters' request to redefine the term “date of receipt” and specify an exact number of days within which CBP issues an acknowledgment of receipt of an allegation. It is clearly stated in the regulation that an allegation is received when CBP acknowledges a properly filed allegation. An allegation cannot be considered to be received until it is properly filed, i.e., the allegation contains all the information and certifications required pursuant to § 165.11. The statute and interim regulations provide CBP the flexibility to properly examine the allegations as resources allow. Initiating an investigation within 15 business days of an allegation being in CBP's possession could lead to an inefficient use of CBP's resources, as poorly filed allegations or incomplete allegations would cause CBP to perform work that should have been done by the alleger.

Comment: One commenter called attention to a scenario that could arise in the context of an interaction between § 165.12 (date of receipt of an allegation) and § 165.2 (entries dating back to one year before receipt of an allegation). The commenter stated that, depending on the time of receipt of the allegation by CBP pursuant to § 165.12, the time period for investigating entries made within one year prior to CBP's receipt of the allegation could become shorter unintentionally if CBP takes time to acknowledge the receipt of the allegation, and thus entries of allegedly covered merchandise could potentially end up outside of the one-year period from the date of receipt, as specified in § 165.2.

Response: CBP disagrees that the regulation should be changed to cover entries made within one year before the original date of submission of the allegation, instead of the date of receipt of the allegation. CBP acknowledges that the scenario described above could make it difficult in certain instances to cover the alleged actions in the time frame set forth in § 165.2. However, as mentioned above in response to another comment, it is in CBP's discretion to investigate other entries of covered merchandise, i.e., entries outside of the one-year time frame, if the circumstances warrant.

Comment: One commenter stated that CBP should amend § 165.12(b) to provide for consequences for withdrawing an allegation, such as prohibiting re-submission of a new allegation for a specified time period after withdrawal. In addition, the commenter stated that there should be consequences for providing false allegations.

Response: CBP disagrees with the commenter that consequences should be tied to a withdrawal of an allegation. CBP further notes that consequences for making false statements in EAPA investigations are provided for in § 165.5(b)(3).

Comment: One commenter asked CBP to amend § 165.12(b) and § 165.14(a) to allow for the withdrawal of a submission through any other method approved or designated by CBP, in addition to email, to make these provisions consistent with other provisions, such as § 165.5(b)(1) and § 165.11(a).

Response: CBP agrees with the commenter. One of the new functionalities of the EAPA Portal is the ability for parties to submit withdrawal requests through this system as a method approved or designated by CBP. Accordingly, CBP has amended the language in §§ 165.12(b) and 165.14(a) to allow for additional methods for the submission of withdrawal requests. As mentioned above, this functionality will be available in the EAPA Portal upon effectiveness of this final rule.

Comment: One commenter asked CBP to consolidate allegations prior to the initiation of an investigation, noting that the “reasonably suggests” standard in § 165.15(b)(2) is met in a case where multiple importers are contributing to an evasion scheme, but each importer-specific allegation may present, on its own, insufficient information to satisfy the initiation standard. The commenter stated that it would be imperative under those circumstances for CBP to consider and consolidate the multiple allegations to meet the “reasonably suggests” standard.

Response: Under § 165.13(a), CBP has the authority to consolidate allegations at any point prior to the issuance of a determination (even prior to the initiation of an investigation) and may do so if certain criteria set forth in § 165.13(b) are met.

Comment: One commenter suggested that CBP modify its regulations to grant the parties to the investigation an opportunity to comment on (or object to) consolidation prior to any decision to consolidate. The commenter argued that such a regulatory change would promote engagement with the parties as to why or why not consolidation would be beneficial or burdensome.

Response: CBP disagrees with the commenter's suggestion to modify the regulatory language. The interim regulations already include the ability for comments to be placed on the administrative record regarding consolidation of allegations once interim measures are announced. Pursuant to § 165.23(c), the parties to the investigation have the opportunity to submit factual information up to day 200 of the investigation. Relatedly, CBP has revised the regulatory language in § 165.23(c)(2) providing CBP with the discretion to officially extend the 200-day deadline for providing factual information, as discussed in more detail in section III below.

Comment: One commenter wrote that a consolidation of allegations does not seem appropriate in evasion investigations because only the importer is submitting the import declaration as to whether merchandise is covered by an AD/CVD order, and only the importer may evade an AD/CVD order. The commenter opined that a mere similarity of covered merchandise should not be the basis for a claim of evasion and, thus, not a basis for consolidation.

Response: CBP disagrees with the commenter. Each EAPA allegation regarding an importer stands on its own merit. CBP judiciously uses the consolidation ability and bases consolidation on various criteria, such as those listed in § 165.13(b)(1)-(4). When allegations against importers are consolidated at the interim measures point, it is because there is reasonable suspicion that all the importers are engaged in evasion.

Comment: Two commenters stated that CBP should allow for the filing of one allegation against multiple importers if they are involved together in a duty evasion scheme. Given that the entities involved in an evasion may use a host of different importers of record as alter egos by which to improperly enter goods, limiting an allegation to a single importer would decrease efficiency for filers of allegations and CBP, and increase the burden to determine which importer was involved in an evasion. One of the commenters added that if confidentiality is a concern, CBP should implement an administrative protective order (APO) process in such cases.

Response: CBP disagrees with both commenters. Every EAPA allegation stands on its own. Allowing one allegation against multiple importers would be problematic if the alleger did not correctly name one of the importers or provided insufficient facts against one of the importers. In that instance, the alleger would have to withdraw the allegation against all the importers in order to re-submit an allegation against only one or more importers. In addition, since the statutory language in 19 U.S.C. 1517(b)(2) (“. . . allegation that a person has entered covered merchandise . . .”) (emphasis added) is written in singular form, allowing allegations against more than one importer would be inconsistent with the current statutory language and would require a statutory change. Nonetheless, CBP may consolidate allegations under certain circumstances. However, as explained in more detail below, CBP will provide for the use of APOs as part of the EAPA process going forward.

Comment: Multiple commenters voiced a concern regarding the 95-day period for notification of CBP's decision to initiate an investigation pursuant to § 165.15(d)(1). The commenters argued that such a lengthy delay in notifying the alleged evader about the initiation of an investigation could impede an importer's due process rights by significantly limiting the time to prepare a defense. It could deprive the alleged evader of an opportunity to provide information or arguments until after the interim measures are in effect. For similar reasons, another commenter asked for immediate publication of notice of the initiation of an investigation to enhance transparency.

Response: CBP disagrees with the commenters' suggestion that CBP issue a notice of initiation of an investigation earlier than 95 calendar days after a decision to initiate has been made. CBP needs adequate time to investigate the alleged evader's actions, before notifying the parties to the investigation about the initiation of an investigation. Issuing a notice of initiation early would allow the alleged evader to change its tactics in order to disrupt CBP's investigatory efforts. Pursuant to 19 U.S.C. 1517(b)(1), CBP must make a decision as to whether the allegation reasonably suggests evasion within 15 business days of receiving a properly filed allegation in order to initiate an investigation. No later than 90 calendar days after commencing an investigation, CBP must make a decision as to whether there is reasonable suspicion that covered merchandise has been entered into the U.S. customs territory through evasion. If CBP finds reasonable suspicion, CBP issues a combined notice of initiation of investigation and interim measures within five business days of that decision. Alternatively, if no interim measures are taken, CBP may issue a notice of initiation of investigation only, by day 95 of the case. Thus, for ease of administrability of this regulation and others in part 165 that provide for the notification of decisions five business days after a decision has been made, CBP has revised § 165.15(d)(1). The revised regulation states in the first sentence that CBP will issue a notice of its decision to initiate an investigation to all parties to the investigation no later than five business days after day 90 of the investigation, removing the current reference to the 95-calendar-day period. For consistency purposes, CBP also has changed the second sentence in paragraph (d)(1) to state that in case of interim measures, a notice to all parties to the investigation will occur no later than five business days after day 90 of the investigation.

Furthermore, this change will make the regulatory language consistent with the statutory language, which only mentions a 90-day timeline, and will also create uniformity for the processes for initiating and notifying of an investigation, and for taking and notifying of interim measures. Notwithstanding those time frames, CBP may make a decision earlier than 90 days if it is ready to do so after a thorough investigation and notify the parties to the investigation within five business days of that decision. Additionally, when revising § 165.15(d)(1), CBP has replaced the word “notification” in the existing regulation with “notice” since CBP serves an actual notice of initiation of an investigation on the parties to the investigation, as opposed to notification of the parties in some other fashion.

Comment: One commenter asked CBP to amend § 165.15(d) to provide that CBP notify not only the interested party who filed the allegation, but also the importer alleged to have engaged in evasion in a case where CBP determines to not initiate an investigation.

Response: CBP does not agree with the commenter to amend the regulation. In order to discourage any potential retaliatory actions by the alleged evader against the alleging party, CBP will not notify the alleged evader in case of a decision to not initiate an investigation. If CBP determines to not initiate an investigation due to insufficient evidence that there is a likelihood of evasion, CBP does not see a need to make the alleged evader's name public in a notice to not initiate an investigation.

Comment: One commenter asked that CBP provide for the opportunity to request an administrative review of a decision to not initiate an investigation so that the Commissioner of CBP may assess whether the decision was rendered in accordance with the legislative intent of a functioning mechanism for potential duty evasion and the plain language of the EAPA.

Response: Under the plain language of paragraph (f) of 19 U.S.C. 1517, administrative review may be requested for determinations made under 19 U.S.C. 1517(c). No provision in the statute authorizes CBP to conduct an administrative review of a decision to not initiate an investigation, which is not a determination under 19 U.S.C. 1517(c). Furthermore, CBP provides technical assistance to allegers on strengthening their allegations as a matter of practice and allegers have the opportunity to refile insufficient allegations as more information becomes available which would show that potential evasion is occurring.

Comment: One commenter recommended that the regulations be revised to create a single time frame for the notification of decisions to initiate and to not initiate an investigation and suggested both time frames be within 30 days of receipt of an allegation.

Response: CBP disagrees with the commenter's recommendation for the creation of a single time frame for the notification of CBP's decisions to initiate and to not initiate. Due to the different nature of these decisions, it is not practical to have one single timeframe for CBP to follow. There are different evidentiary standards and different timing requirements attached to the two types of decisions. As mentioned above, CBP has 15 business days to determine whether to initiate or to not initiate an investigation under the “reasonably suggests” standard. If CBP determines that it will not initiate an investigation, it will notify the alleger within five business days of that decision pursuant to § 165.15(d). If CBP determines within 15 business days of a properly filed allegation that it will initiate an investigation, CBP usually takes 90 calendar days to determine whether “reasonable suspicion” exists before making a decision to implement interim measures (or not) and informing the alleger and importer in case of a decision to implement interim measures. Thus, a notification 30 days after receipt of an allegation, as suggested by the commenter, is generally too short a time frame for CBP to examine all the facts and both determine whether to initiate an investigation and whether there is reasonable suspicion that evasion is occurring.

Comment: One commenter asked CBP to specify how CBP will notify of its decision to initiate, and asked CBP to require parties making allegations to provide certain information, such as the name of a contact person, mailing and email address of the importer alleged to have evaded, the foreign producer or exporter of covered merchandise, and the government of the country from which the covered merchandise was exported.

Response: CBP has been providing notices of initiation of an investigation to the parties to the investigation pursuant to § 165.15(d)(1) via email. With the implementation of the EAPA Portal, CBP notifies the parties to the investigation through the system via an email to the alleging party and the alleged evader. In addition, CBP publishes public versions of the notices of initiation of an investigation on its website. Further, to respond to the second part of the comment, CBP already requires name and address for importers; any additional specific contact information would be too burdensome for allegers to include in an allegation, as not all the contact information the commenter listed above is relevant, and, in some instances, it is already publicly available. CBP believes that requiring this additional information would hinder the submission of allegations, without benefit to the EAPA investigation process.

Comment: One commenter stated that CBP should add language that would authorize CBP to self-initiate cases where the criteria in § 165.15(b) are met.

Response: CBP disagrees with the commenter. An amendment of § 165.15(b) would require a statutory change, as 19 U.S.C. 1517(b)(1) and (b)(3) allow for the initiation of an investigation pursuant to the submission of an allegation by an interested party or a request by another Federal agency, but not self-initiation by CBP.

Comment: One commenter stated that the “reasonably suggests” standard in § 165.15(b)(2) burdens domestic producers having to prove evasion at the outset in order to have an investigation initiated, whereas the statute only asks for information reasonably available to the party who filed the allegation. See 19 U.S.C. 1517(b)(2)(B).

Response: CBP disagrees with the commenter. Pursuant to 19 U.S.C. 1517(b)(2)(B), the allegation must be accompanied by information reasonably available to the party who filed the allegation. However, the threshold for initiating an investigation is that the information provided by the alleger reasonably suggests that evasion occurred, pursuant to 19 U.S.C. 1517(b)(1), which is the same standard as in § 165.15(b)(2). The regulatory language does not unduly burden the alleger by imposing a stricter standard. Moreover, CBP evaluates on a case-by-case basis the merits of each allegation and decides if the “reasonably suggests” standard for initiation of an investigation is met.

Comment: One commenter suggested that CBP periodically publish examples of information that was deemed reasonably available to the interested party and sufficient to support an allegation in prior investigations, as well as examples of information sufficient to meet the initiation standard.

Response: CBP currently informs the public through outreach to the industry in the form of presentations on EAPA and provides technical assistance and guidance when allegations are filed. In addition, as mentioned above, CBP publishes public versions of notices of initiation of an investigation on CBP.gov, providing examples of information that meets the initiation standard.

Comment: One commenter stated that CBP should urge Commerce to make public the procedures it intends to use in case of a covered merchandise referral and include provisions to allow interested parties to file comments.

Response: CBP disagrees with the commenter. Commerce decides how to best respond to covered merchandise referrals in EAPA investigations, according to its authority and current practices. Moreover, the referral process has been working well between the two agencies and CBP does not see a need for a change.

Comment: One commenter supported the requirement in § 165.16 that CBP refer a scope issue to Commerce at any point after receipt of the allegation, whereas a second commenter stated that CBP should, where possible, wait until after the issuance of interim measures to request a covered merchandise determination from Commerce. The second commenter argued that if CBP requested a covered merchandise determination prior to interim measures, then the covered merchandise referral might be the first time that an importer or other party learned about the evasion proceedings, which could undermine CBP's law enforcement interest to quickly investigate the allegations and gather information prior to issuing interim measures. In addition, the second commenter asked CBP to encourage Commerce to act expeditiously when processing a covered merchandise referral.

Response: CBP appreciates the comments. CBP decides on a case-by-case basis whether there is a need to refer scope issues to Commerce. According to § 165.16(a), CBP may refer the issue to Commerce for Commerce to determine whether imported merchandise constitutes covered merchandise, at any point after receiving the allegation. The statute (19 U.S.C. 1517(b)(4)) does not limit CBP's ability to refer a scope matter to Commerce within a certain time frame but allows CBP to make this decision depending on the circumstances of the specific investigation. With regard to the second part of the last comment, CBP has no jurisdiction over Commerce's authority to set timelines, and no influence over another agency's internal processes.

Comment: One commenter asked that CBP modify the interim regulations to further explain Commerce's covered merchandise proceeding, clarify whether or not interested parties would be able to participate in that proceeding, and whether Commerce's scope determination is appealable.

Response: Commerce processes covered merchandise referrals and determinations according to its own statutory and regulatory authority and CBP cannot amend CBP's regulations to discuss or clarify Commerce's authority and procedures. Nor is CBP in a position to opine on judicial review related to Commerce proceedings. We note, however, that Commerce has promulgated regulations to address covered merchandise referrals from CBP, at 19 CFR 351.227.

Comment: One commenter asked that CBP add a definition in § 165.16(c) for the word “promptly.” The commenter also suggested that CBP make a referral to Commerce within 30 days of initiation of the investigation, and CBP provide notice of the referral within five days of the referral.

Response: CBP disagrees with the commenter's request to add a definition for the word “promptly.” CBP makes determinations regarding covered merchandise referrals on a case-by-case basis and refers scope issues to Commerce as appropriate. As stated above, CBP may refer to Commerce at any point after receipt of an allegation. Further, CBP notifies the parties to the investigation as to when CBP sends the covered merchandise referral to Commerce.

Comment: One commenter argued that CBP should provide for a mechanism for an interested party to seek relief when CBP improperly refuses to refer a scope issue to Commerce and for situations where CBP improperly suspends liquidation of entries when the scope issue is being disputed.

Response: CBP disagrees with the commenter's argument. CBP works with the appropriate internal subject matter experts during an EAPA investigation and, in addition, works with the Customs Liaison Unit at Commerce, and refers cases to Commerce regarding the scope of an AD/CVD order when appropriate. The covered merchandise referral to Commerce pursuant to 19 U.S.C. 1517(b)(4) is a specific authority for CBP to use in EAPA investigations, as needed, and should remain within CBP's discretion. Apart from CBP's authority to refer issues to Commerce for a covered merchandise determination, an interested party also has the ability to seek resolution of a scope issue before Commerce pursuant to Commerce's regulations found at 19 CFR 351.225 and 19 CFR 351.227. CBP does not believe that an additional mechanism is needed in this rulemaking. With regard to the second part of the comment, CBP does not believe that a process is needed for a situation where the importer alleges that CBP improperly suspended liquidation of entries when the scope was being disputed. If CBP determines that there is reasonable suspicion that the importer entered covered merchandise into the customs territory of the United States, TRLED will instruct the Center to suspend liquidation of entries of such covered merchandise that entered on or after the date of initiation of the investigation or extend the period for liquidating each unliquidated entry of such covered merchandise that entered before the date of the initiation of the investigation, and take other measures necessary to protect the revenue. CBP needs to conclude its investigation to issue a determination as to evasion, and does not overturn interim measures, such as the suspension of liquidation or the extension of the liquidation period, until a determination has been made.

Subpart C (Investigation Procedures) includes provisions setting forth the EAPA investigation procedures, such as the maintenance of an administrative record, the time period provided for an investigation and the deadline for making a determination, the types and requirements for the submission of factual information, and the issuance of interim measures. This subpart also describes CBP's authority to conduct verifications of information, deals with the submission of written arguments to CBP and responses to written arguments, and finally sets forth the process for the issuance of a determination as to evasion and the assessment of duties and other actions in case of an affirmative determination. Commenters submitted questions regarding public access to the administrative record, questions surrounding the submission of factual information, and the interim measures process, as well as the verification process.

Comment: One commenter stated that it is unclear from the regulations how and to what extent parties to the investigation would be able to access public information during the course of the investigation or administrative review. The commenter asked that CBP amend the regulations to include a provision that sets forth where CBP would maintain an up-to-date public administrative record, how CBP would guarantee access, and when and how CBP would share public information.

Response: The EAPA Portal provides the parties to the investigation with access to the public documents and public versions of documents relating to the EAPA proceeding and allows the parties to the investigation to view the public administrative record. In addition, CBP publishes public versions of notices of initiation of an investigation, notices of initiation of an investigation and interim measures, covered merchandise referrals, and determinations as to evasion on its website, in a timely manner. Finally, CBP appreciates the opportunity to announce that CBP has started publishing public versions of final administrative review determinations. 3 CBP has uploaded earlier public versions of final administrative review determinations to its website.

Comment: While one commenter supported the opportunity for parties to the investigation to submit factual information pursuant to § 165.23(b), another commenter asked CBP to clarify in § 165.23(a) that CBP may request information from any party who has relevant information.

Response: CBP appreciates the comments. However, CBP disagrees with the second commenter that a regulatory change is needed to clarify that CBP may request information from any party who has relevant information. The universe of persons from whom CBP may request information pursuant to § 165.23(a) is broad, and CBP does not believe that it needs to be specifically defined.

Comment: One commenter stated that it would be useful for the purpose of identifying an importer, especially in situations where importers are incorporated under multiple different names, or when several related companies act as importers of record through an agent, that CBP include in the scope of an EAPA investigation activities engaged in by companies related to an identified importer, which support the allegation.

Response: CBP disagrees with the commenter's suggestion. Although an alleger is free to include information about the activities of a company related to an identified importer in its allegation, the statutory language does not require the inclusion of such information. Furthermore, such a requirement would create an additional barrier that may inhibit the submission of some legitimate allegations.

Comment: One commenter supported the establishment of a service list for purposes of serving other parties with public versions of documents, and asked CBP to amend the regulations to set forth the requirements for the maintenance of such a list.

Response: CBP does not agree with the commenter's request to add a requirement for maintenance of a service list in the regulations. CBP currently releases public versions of documents to the parties to the investigation, which CBP believes is sufficient. Public documents and public versions of documents are also available to the parties to the investigation in the EAPA Portal.

Comment: Multiple commenters asked CBP to modify its regulations so that parties can submit confidential documents via a secure electronic filing system, as opposed to email, and allow attorneys and other interested parties to easily monitor the ongoing investigation. One commenter also asked CBP to provide for the hand delivery of documents if documents contain confidential information, or delivery by mail if the document to be submitted exceeds a certain size limit.

Response: The EAPA Portal allows parties to submit confidential documents, and the parties to the investigation, as well as their attorneys, are able to monitor the status of an EAPA proceeding. Further, CBP already allows for hand delivery on a case-by-case basis, in instances of voluminous submissions or the submission of confidential documents. A party who wishes to hand-deliver documents must file a request with TRLED and provide a reason why the documents cannot be filed electronically. The regulation does not need to be amended as the option of hand delivery is already included in § 165.5(b)(1) as a method approved or designated by CBP. Regarding the last comment, delivery by mail is not allowed, but if there are size limitation issues with the EAPA Portal, parties may contact the EAPA Investigations Branch at eapallegations@cbp.dhs.gov.

Comment: One commenter requested that CBP add a provision in the regulations to allow for the filing of a “Bracketing Not Final” version of a submission first, followed by the final, public version the next business day. The commenter believes that this additional time is necessary to review any business confidential information to make sure that the public version is correct. The commenter argued that this change would make CBP's regulations consistent with those of Commerce, the U.S. International Trade Commission (ITC), and the CIT.

Response: CBP disagrees with the commenter's request to allow for the filing of a “Bracketing Not Final” version first, followed by a final, public version the next business day. Section 165.4(a)(2) states that the public version should be filed on the same date as the business confidential version and gives CBP the opportunity to reject a public version, if needed. Simultaneous filing ensures that the other parties to the investigation timely receive documents, since only public versions are provided to other parties in an EAPA investigation. Commerce, ITC, and CIT procedures differ in this regard, in that confidential versions are provided to other parties under protective orders.

Comment: One commenter asked CBP to modify § 165.23(c)(1) to set a deadline for service of the public version of a submission of factual information, which currently is missing in the regulations.

Response: CBP disagrees with the commenter. Section 165.23, first sentence, refers to §§ 165.4 and 165.5 with regard to the submission requirements. Specifically, § 165.4(a)(2) addresses the requirement to submit a public version on the same date as the business confidential version.

Comment: One commenter asked CBP to clarify in § 165.23(c)(2) whether the service requirement applies to the submission of all factual information, or only to factual information submitted after a certain point in the investigation. The commenter stated that pursuant to § 165.23(c)(2), parties submitting factual information are required to serve on parties to the investigation a public version of the submission. The commenter went on to say that if an alleging party submitted factual information after the initial allegation, but prior to the issuance of interim measures, it would be unclear whether service of that information on other parties would interfere with CBP's enforcement efforts in case CBP had not yet notified certain parties of the investigation.

Response: CBP disagrees with the commenter's request to modify § 165.23(c)(2). The service requirements in § 165.4 apply throughout the investigation; there is no distinction in the regulation, or in practice, regarding the timing of the submission of factual information. However, CBP wishes to clarify that any documents submitted prior to the notice of initiation of an investigation will be served by TRLED on the parties to the investigation soon after the issuance of the notice, regardless of who submitted those documents. For additional clarity, CBP added a sentence to that effect at the end of § 165.15(e).

Comment: One commenter stated that CBP should adopt a regulation that imposes interim measures if Commerce finds that imported merchandise is covered by an AD/CVD order and that tolls the CBP deadlines for the completion of the investigation. Otherwise, the commenter noted, if Commerce issues a scope determination which is subject to judicial review and CBP's regulations do not toll CBP's administrative deadlines during the pendency of judicial review, it may be the case that an importer is labeled an “evader” even though the underlying facts for the scope determination are subject to dispute. The commenter opined that adding a regulation as described above would ensure that importers will not be labeled as duty evaders unless and until all their due process rights have been exhausted.

Response: CBP disagrees with the commenter. CBP considers decisions by various internal stakeholders as well as other government agencies when reaching the decision to take interim measures, but CBP has independent authority to determine if or when to impose interim measures. CBP takes interim measures after careful examination of the facts and information provided, concluding that there is reasonable suspicion that evasion has taken place. Judicial review of a scope determination should not put the EAPA investigation on hold because CBP needs to timely continue its process, as provided in the regulations, to fully investigate the facts relating to the allegation and make a determination as to evasion. CBP notes that Congress, through the statutory timelines set forth in EAPA, made clear that it intended prompt action on the part of CBP.

Comment: One commenter requested that CBP amend § 165.24(c) to state that CBP will share the public administrative record with Commerce upon issuing interim measures. The commenter argued that the connection between Commerce's administration and enforcement of AD/CVD orders and CBP's efforts to combat evasion under EAPA necessitates that the agencies share information and work together to maximize enforcement.

Response: CBP does not see a need to amend the regulations so CBP may share the administrative record with Commerce after the issuance of interim measures. CBP regularly shares information with Commerce, based on the circumstances of the case and in accordance with law.

Comment: One commenter asked CBP to clarify in § 165.25 that the verification process takes place sometime between initiation of the investigation and the 200th calendar day after the initiation, that a verification agenda is included, and modify the regulations to provide for a verification report that CBP will place on the administrative record.

Response: CBP does not agree with the commenter that the verification process must be completed by the 200th calendar day after initiation of an investigation. Rather, verification generally occurs after all new factual information has been submitted to the administrative record. The deadline for voluntary submission of new factual information is established in § 165.23. To clarify that CBP may conduct verifications before and after the deadline for voluntary submission of factual information, CBP has revised the language in § 165.25(b). In addition, CBP added a sentence in paragraph (b) to confirm that the purpose of the verification is to verify the accuracy of the information already placed on the administrative record. Regarding the commenter's second request, CBP already provides a verification agenda to the parties to the investigation and does not believe that it needs to be specifically stated in the regulation.

To respond to the commenter's request regarding the verification report, CBP added a new paragraph (c) stating that CBP will place a report about the verification, i.e., the verification report, on the administrative record. CBP will also require the party that underwent the verification to place verification exhibits, which will generally contain information compiled and verified by CBP at CBP's discretion during the verification, on the administrative record. In accordance with § 165.4, CBP and the party that underwent the verification will provide public versions of their verification documents, which will be served on all parties to the investigation. CBP will not accept voluntary submissions of new factual information at the verification after the deadline for such submissions, as referenced in § 165.23. Further, parties to the investigation cannot submit rebuttal information to either CBP's verification report or the verification exhibits. Parties to the investigation, however, may submit to CBP written arguments in relation to the verification report and/or its exhibits in accordance with § 165.26.

CBP also added a new paragraph (d) stating that if CBP determines that information discovered during a verification is relevant to the investigation and constitutes new factual information, CBP will place it on the administrative record separately, in accordance with § 165.23, and allow the parties to the investigation to submit rebuttal information.

Comment: One commenter expressed support of § 165.26 but was concerned that the 50-page limit in paragraph (d) may be too short in some cases. The commenter suggested that CBP explicitly state in the regulation that it would increase the page limitation upon request when good cause is shown.

Response: CBP disagrees with the commenter's suggestion and supports the regulation as currently written. Written arguments are a summary of record evidence and new information is not permitted. CBP believes that 50 pages is a reasonable limit and does not see a need to provide for exceptions in the regulation.

Comment: One commenter stated that CBP should clarify in § 165.26(c) that CBP may request written arguments on any issue from any interested party.

Response: CBP believes that § 165.26(c) as currently written is properly limited to the parties to the investigation. However, to make the terminology in § 165.26(c) clearer, CBP changed the regulatory language from “any party” to the investigation to “the parties” to the investigation.

Comment: One commenter argued that CBP should make it clear in § 165.27(a) that a determination must be based on substantial evidence on the record, and add a reference to the administrative record, as defined in § 165.21.

Response: CBP does not see a need to add a clarification in the regulation. Section 165.27(a) already contains language that a determination is based on substantial evidence as to whether covered merchandise was entered into the U.S. customs territory through evasion. In addition, § 165.21(a) states that CBP maintains an administrative record for purposes of making a determination as to evasion under § 165.27. When both regulations are read together, it is clearly stated that CBP's determination as to evasion is based on substantial evidence on the administrative record. In current practice, CBP states in its affirmative determinations that CBP reviewed the administrative record and found that it contained substantial evidence of evasion.

Comment: One commenter suggested that CBP add a sentence to § 165.27(b) to state that CBP will provide parties to the investigation with a public version of the administrative record no later than five business days after making a determination as to evasion, the same date that CBP sends the parties to the investigation a summary of the determination limited to publicly available information. This suggested language would mirror the language in § 165.24(c) for interim measures, which includes a notification of the decision to the parties of the investigation, along with a public version of the administrative record on the same date.

Another commenter suggested that § 165.27(b) be amended to provide a detailed and meaningful public explanation as to what should be covered by the summary of CBP's determination as to evasion since that summary would serve as the primary basis for a party's decision whether to request an administrative review and subsequent judicial review.

Response: With regard to the first comment, once parties to the investigation are notified of an investigation, and then throughout the remainder of the investigation, the administrative record is made available in the EAPA Portal. CBP does not agree that the regulation needs to be amended to that effect. Pursuant to § 165.27(b), CBP will provide a summary of the determination as to evasion, limited to publicly available information, to the parties to the investigation. As part of the public version of the determination as to evasion, CBP includes a short summary of the redacted information in brackets that was deemed business confidential information. Additionally, as discussed in more detail below, CBP will provide for an APO process so parties to the investigation may access business confidential information. Thus, an amendment to § 165.27(b) as suggested by the second commenter is not necessary.

Comment: One commenter stated that § 165.27 does not appear to contemplate the publication of a determination as to evasion, and a summary is available only to the parties to the investigation. The commenter suggested that CBP add a new paragraph (c) to § 165.27 stating that no later than 90 days after making a determination as to evasion, CBP would publish a summary of the determination limited to publicly available information in the Customs Bulletin or make the determination otherwise available for public inspection.

Response: CBP disagrees with the commenter's suggestion to amend § 165.27. In addition to informing the parties to the investigation about the determination electronically, CBP has been publishing a public version of the determination on its website. The public version of a determination is also available to the parties to the investigation in the EAPA Portal.

Comment: One commenter stated that a party's right to judicial review, as granted in 19 U.S.C. 1517(g), is restricted by the regulations as the regulations limit a party's right to public information only, and thereby deprive the party of full knowledge of the basis for CBP's determination. It is the commenter's opinion that CBP must provide the parties to the investigation with some level of access to proprietary information in order for CBP to give full effect to the statute.

Response: CBP agrees with the commenter's request to provide access to another party's proprietary information. As discussed in more detail below, CBP will establish an APO process to allow for the release of business confidential information to parties to the investigation.

Subpart D (Administrative Review of Determinations) specifies the requirements for requesting an administrative review of a determination as to evasion, discusses the submission of responses to the request for administrative review, and describes CBP's authority to request additional information from the parties to the investigation. This subpart also deals with the administrative review standard, the ability to file for judicial review of the final administrative determination, and, finally, potential penalties and other actions that CBP may undertake pursuant to any other relevant laws. CBP received comments regarding the publication of final administrative determinations, the availability of rebuttal information during an administrative review, and questions on the de novo review process for administrative reviews.

Comment: One commenter expressed concern with regard to the 30-business-day deadline (§ 165.41(d)) for requesting an administrative review of a determination as to evasion and asked for clarification in the regulations. The commenter stated that it is unclear whether “issuance” in the regulation refers to the date CBP signs the initial determination, the date it is sent to the parties, the date it is received by the parties, or some other date.

Response: CBP appreciates the opportunity to clarify that the date of issuance is the date that the determination is signed by CBP and also electronically transmitted to the parties to the investigation. In a rare case where the determination as to evasion is signed on one day and electronically transmitted the next business day, the date of electronic transmittal is considered the date of issuance.

Comment: One commenter asked for the regulations to be amended to expressly allow for rebuttal information in administrative reviews.

Response: CBP disagrees with the commenter. Under § 165.44, CBP may request additional written information from the parties to the investigation at any time during the administrative review process; however, these requests are narrowly tailored for specific information related to a record that has already been created during the course of the investigation. CBP has a strict 60-business-day review period to issue a determination on the request for administrative review. See 19 U.S.C. 1517(f) and 19 CFR 165.41(i). Any rebuttal information from the parties on additional information requested by CBP would reduce the number of days that Regulations and Rulings (RR) has available to conduct a de novo review of the record information and issue a final administrative determination. However, should CBP determine that rebuttal information is useful, then § 165.44 permits CBP to request such information.

Comment: One commenter stated that the language in § 165.45 is contradictory because the administrative review process is described to be de novo and, at the same time, based on specific facts and circumstances already on the administrative record. It is the commenter's opinion that parties should be able to provide any information they deem appropriate in the administrative review process since it is a de novo review.

Response: CBP disagrees with the commenter's request. EAPA requires that an administrative review be rendered within 60 business days (19 U.S.C. 1517(f)), which is in contrast to a much longer time frame (up to 360 calendar days) that CBP has available to render a determination as to evasion. The short deadline for the administrative review makes it impracticable for CBP to accept additional information that parties wish to submit. Rather, the administrative review must be based solely on the facts already on the record, with the exception being if CBP believes that it needs additional information in accordance with § 165.44 to be able to render its decision, as mentioned above. To clarify even further, CBP added the phrase “in response to a request by CBP” before “pursuant to § 165.44” to emphasize that CBP will only consider additional information if CBP specifically requested that information.

Comment: One commenter asked CBP to add a paragraph in § 165.46 that sets forth that final administrative determinations are published in the Customs Bulletin or are otherwise made available for public inspection no later than 90 days after the issuance of the final administrative determination.

Response: CBP disagrees with the commenter's suggestion to amend the regulation as there is no need to include in the regulatory text a requirement for the publication of the final administrative determination. As mentioned in more detail above, CBP has started publishing final administrative determinations, limited to public information, on its website.

Comment: One commenter stated that CBP should clarify that any actions taken apart from the EAPA investigation will not disadvantage False Claims Act (FCA) relators. The commenter stated that § 165.47 expressly states that no action taken under EAPA prevents CBP from assessing penalties of any sort related to such cases or taking action under any other relevant laws and that CBP should extend this recognition to claims brought under the FCA in the final regulations.

Response: CBP disagrees with the commenter's request for clarification of § 165.47. EAPA investigations do not prevent actions by CBP or other government agencies under other authorities, including FCA, and CBP's and other governmental agencies' rights to undertake additional investigations or enforcement actions in cases covered by the EAPA provisions are already established in § 165.47. See also 19 U.S.C. 1517(h).

Comment: Multiple commenters stated that a determination as to evasion should not be a protestable decision and asked that CBP clarify in the regulations that the administrative process and judicial review under 19 U.S.C. 1517(f)-(g) are the only avenues by which a party may challenge a determination.

Response: CBP agrees with the commenters that a determination as to evasion in an EAPA investigation is not a protestable decision. Sections 1517(f)-(g) of 19 U.S.C. establish both an administrative and judicial review process for EAPA determinations made by CBP. The administrative and judicial review processes are the exclusive means by which EAPA determinations can be reviewed. However, CBP does not see a need to clarify this in the final regulations at this time.

Comment: Multiple commenters asked that CBP publicly disclose key events, such as the initiation of an investigation, or determination as to evasion, to a wider trade community, either in form of a searchable docket or some other type of publication process for the key documents. The commenters argued that such disclosure would deter future evasion attempts and promote increased compliance by all parties.

Response: CBP already publishes public versions of notices of initiation of an investigation, notices of initiation of an investigation along with interim measures (if CBP takes interim measures after initiating an investigation), covered merchandise referrals, determinations as to evasion, and now final administrative determinations as well, on its website. To further promote transparency of the EAPA process, those decisions are viewable in the EAPA Portal by the parties to the investigation.

Comment: Multiple commenters have urged CBP to create an APO process or similar process in the final regulations, which would allow authorized representatives of interested parties to obtain and review confidential information submitted by other interested parties. While the commenters acknowledge that the statute did not explicitly authorize CBP to create an APO, these commenters note that such specific statutory authorization is not necessary given that Congress has broadly authorized CBP to promulgate regulations necessary to implement the provisions of TFTEA. The commenters claim that the lack of an APO hinders the parties' ability to meaningfully participate in EAPA proceedings in multiple ways. The commenters argue that the parties affected by CBP's decision-making will not have full access to information contained on the administrative record unless and until judicial review is requested. Further, the inability to have access to other parties' business confidential information prevents other parties to the investigation from providing rebuttal information and from submitting arguments at the administrative level based on a review of the complete information. Finally, the commenters argue that the lack of an APO makes the administrative process more burdensome for CBP, because CBP must respond to irrelevant arguments and evidence submitted by parties, who, without full access to the record, are unable to assess the nature of that record and other parties' claims.

Response: CBP agrees with the commenters that Congress provided CBP with authority to “prescribe such regulations as may be necessary” to implement the requirements under the statute. CBP, by regulation, has created an investigation procedure that allows participation by the parties to the investigation. Under § 165.4, any party submitting information to CBP may request confidential treatment for information protectable under 5 U.S.C. 552(b)(4). The party must identify such confidential information by placing it in brackets, marking the first page as confidential, and providing an explanation for requesting confidential treatment. The interested party must also file a public version of the confidential document. Under § 165.4(a)(2), the public version must contain a summary of the confidential information with sufficient detail to permit a reasonable understanding of the substance of the information. If the submitting interested party claims that summarization is not possible, the claim must be accompanied by a full explanation of the reasons supporting that claim. Public summaries that do not meet this requirement will be rejected.

Moreover, in order to allow meaningful participation in the proceedings, and for purposes of transparency, CBP will not accept claims of confidential treatment for the following information: (1) name of the party to the investigation providing the information, its agent filing on its behalf, if any, and email address for communication and service purposes; (2) basis upon which the party making the allegation qualifies as an interested party as defined in § 165.1; (3) name and address of importer against whom the allegation is brought; (4) description of covered merchandise; and (5) applicable AD/CVD orders.

While CBP believes that the above process provides parties to the investigation with a meaningful opportunity to participate in the EAPA investigation, CBP acknowledges that, on July 27, 2023, the U.S. Court of Appeals issued a decision in Royal Brush Mfg. v. United States, 75 F.4th 1250 (Fed. Cir. 2023), with respect to the issue of a need for an administrative protective order in that case. In light of that precedential decision, CBP is reviewing its procedures with respect to the disclosure of business confidential information during EAPA investigations. As such, CBP has amended § 165.4 and added language in the introductory text of paragraph (a) to state that if the requirements of § 165.4 are satisfied and the information is privileged or confidential in accordance 5 U.S.C. 552(b)(4), CBP will grant business confidential treatment and issue an APO, in compliance with the mandate in Royal Brush. Further, CBP added a new paragraph (f), stating that in each investigation where CBP grants a request for business confidential treatment, CBP will issue an APO which will contain terms that allow the representatives of the parties to the investigation to access the business confidential information. CBP will publish guidance to provide additional information on this new APO process, and CBP is also considering whether to initiate a separate rulemaking for purposes of further codifying an APO process. Finally, CBP made several additional changes to § 165.4, unrelated to an APO process, which may be found in section III below.

Comment: Multiple commenters stated that CBP must follow the statutorily mandated deadlines and should clarify in the final regulations that they are mandatory.

Response: CBP abides by all statutory deadlines such as CBP's decision to take interim measures no later than 90 days after initiating an investigation under 19 U.S.C. 1517(e), CBP's determination as to evasion no later than 300 days after initiating an investigation pursuant to section 1517 (c)(1)(A), and the 60-business-day timeline for making a final administrative determination pursuant to section 1517(f)(2). CBP does not believe that a clarification in the final regulations is necessary.

Comment: One commenter stated that CBP should clarify in the final regulations that all ex parte communications of substance will be memorialized in the administrative record and public versions of such written memorialization should be promptly disclosed to the other parties to the proceeding.

Response: CBP disagrees with the commenter that the memorialization of ex parte communications needs to be specifically outlined in the regulations. Substantive ex parte communications are memorialized, and public versions are disclosed to the parties to the investigation as a matter of practice.

Comment: One commenter voiced concerns with regard to section 411(b)(4)(B) of TFTEA, specifically the provision of information on the status of CBP's consideration of an evasion allegation and related decision whether or not to pursue any administrative inquiries or other actions as a result of an allegation to a party or parties who submitted an allegation as to evasion. The commenter stated that this provision appears to authorize CBP to allow the alleging party to request Federal documents, which will likely include business confidential information of the importer. The commenter further argued that this provision disadvantages the importer by giving the alleging party information that the importer cannot review and of which the importer is not aware, making this provision fundamentally unfair.

Response: CBP disagrees with the commenter, who is not interpreting the statute in the way that CBP is administering EAPA. While the alleging party may be aware that CBP is processing an allegation before the alleged evader is, CBP does not share business confidential information of other entities with the alleging party at any stage of the investigation. All parties to the investigation are notified whether or not interim measures are taken once an investigation is ongoing and are allowed to participate in the investigation from that point forward.

Comment: One commenter stated that CBP should prescribe regulations that obligate customs brokers to collect and verify meaningful information regarding companies that approach the broker seeking to act as an importer of record.

Response: CBP thanks the commenter for its contribution; however, this comment is beyond the scope of this EAPA rulemaking.

In addition to carefully considering and responding to the public comments, CBP has reviewed the interim regulations in their totality to assess the effectiveness of the established EAPA process and determine whether any regulations, other than the ones addressed above in response to public comments, should be amended. Pursuant to this review, CBP has made some changes to clarify and update the interim regulations, emphasizing CBP's goal for a clear and transparent process and aligning CBP's current practice with the regulations.

CBP made some changes to § 165.1 by clarifying and updating some of the existing definitions and adding a definition. First, CBP slightly rearranged the sentence of the definition of “allegation” in § 165.1 for clarity. Next, in the definition of “TRLED” in § 165.1, CBP removed the reference to EAPA and replaced it with a reference to the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA) as it is a more accurate reference. CBP also added a definition for “Business day” in § 165.1, which mirrors the language in 19 CFR 101.1. CBP had received a general comment regarding the treatment of Inauguration Day (January 20 or January 21 if January 20 falls on a Sunday) in the context of calculating deadlines, and CBP wants to take the opportunity to clarify its position on this subject since this legal holiday in the Washington, DC, area occurs every four years. Thus, pursuant to the new definition, and in accordance with 5 U.S.C. 6103(c), Inauguration Day is not considered a business day for purposes of an EAPA investigation.

CBP made several changes to § 165.4, in addition to the changes mentioned above. In paragraph (a), CBP added a sentence at the end of the paragraph to state that all documents and communications that are submitted to CBP after notice of initiation must be served on all parties to the investigation by the submitting entity. For business confidential documents, a public version must be served as well, in accordance with § 165.4(a)(2). This addition is not a change but merely a confirmation of CBP's practice. Further, CBP included language in the introductory sentence in paragraph (b) clarifying that rejected submissions due to failure to meet the requirements of § 165.4(a) will not be placed on the administrative record. The same language regarding the placement on the administrative record was added in § 165.4(b)(3), setting forth the effects of a rejected submission. Finally, CBP added the phrase “unless the submitting interested party takes any of the actions in paragraph (b)(2) of this section within the timeframe specified in that paragraph” at the end of the introductory sentence in paragraph (b), referring to the possibility of corrective action pursuant to § 165.4(b)(2) in case of a nonconforming submission.

In addition, CBP added two sentences at the end of paragraph (e), stating that parties who are not already subject to the requirements of § 165.4, such as suppliers or customers, must adhere to the requirements set forth in § 165.4 and § 165.5 when filing submissions. With this change, CBP is clarifying its current expectation that interested parties and other parties who submit information to CBP must follow the same submission requirements. Additionally, § 165.5(b) states that all submissions to CBP must adhere to the requirements in part 165. Thus, the addition of the two sentences in paragraph (e) simply clarifies the requirements set forth in § 165.4 and § 165.5 and the effect of a nonconforming submission. 4

In § 165.5(b)(2), CBP added language to clarify that the certification requirement, along with other submission requirements in sections 165.4 and 165.5, applies not only to submissions by interested parties, but also to submissions requested by CBP from any other party. Lastly, CBP replaced the reference to “19 CFR” with a section symbol in two places in § 165.5(b)(2)(ii) and (iii) to make those references consistent with other references in the regulations.

In addition, CBP added a new paragraph § 165.5(b)(4), titled “Nonconforming submissions,” clarifying that CBP will reject submissions that do not meet the requirements of paragraph (b) of this section, and will not consider or place them on the administrative record. In § 165.5(c)(1), CBP added language in the first sentence to clarify that the request for extensions applies not only to regulatory time limits, but also to any deadlines for the submission of information requested by CBP. CBP has allowed for requests for extension of non-regulatory deadlines in prior investigations and takes the opportunity to confirm in the regulation that a party may request an extension of a deadline set by CBP. In addition, CBP added the words “by the requester” at the end of the third sentence of paragraph (c)(1) in the definition of an extraordinary circumstance, which is an unexpected event that could not have been prevented even if the requester had taken reasonable measures. In paragraph (c)(2), CBP replaced “retain it in” the administrative record with “place it on” the administrative record to make the language consistent with other sections that have similar language.

CBP revised the language in the second sentence of § 165.13(c) by replacing the 95-calendar-day reference with regulatory language that reflects CBP's practice of notifying the parties to the investigation within five business days of making formal a decision to initiate an investigation and a decision to consolidate after day 90 of the investigation. This change is similar to the change in § 165.15(d)(1), as explained above. The changes to both § 165.13(c) and § 165.15(d)(1) will create uniformity among the regulations dealing with the timing of notification of decisions that CBP makes throughout the EAPA investigation process. CBP further reorganized the first sentence in § 165.13(d) to read more easily and added a reference to public documents that need to be served on parties to the previously unconsolidated investigation once the parties subject to the consolidation are notified. Both public versions of documents and public documents are placed on the administrative record as part of the EAPA investigation. Lastly, CBP replaced the second and third mentions of the word “upon” in the first sentence of § 165.13(d) with “on” for clarity.

CBP amended the first sentence of § 165.14(a) to include the words “but not limited to” after “including” to emphasize that any Federal agency, in addition to Commerce and the ITC, may request an investigation under part 165.

CBP added a phrase to § 165.16(d) to include interim measures under § 165.24, along with the deadline to decide whether to initiate an investigation and the deadline to issue a determination as to evasion under § 165.27, setting forth that the time period for any referral to and determination by Commerce will not be counted toward the deadlines mentioned in this paragraph. The regulation is based on language in 19 U.S.C. 1517(b)(4)(C), which states that the period required for the referral to Commerce and the determination shall not be counted in calculating any deadline under this section, and interim measures are mentioned in paragraph (e) of section 1517 as well.

In §§ 165.22(a) and (d), CBP replaced the phrase “not later” with “no later” to be consistent with the use of the phrase in other regulations. This technical change does not change the deadlines associated with a determination as to evasion in this section. In paragraph (d), CBP changed the word “notification” to “notice” in the paragraph heading to better reflect CBP's practice of serving the parties to the investigation with a notice, instead of simply notifying them of an extension of time to make a determination as to evasion. Further, CBP rephrased some of the language in § 165.22(b) to mirror the language in § 165.13(a), and with this final rule, both sections will include the “date of receipt of the first properly filed allegation” instead of the “date on which CBP receives the first of such allegations.”

In § 165.23(b), CBP changed the words “Any party” to the investigation at the beginning of the sentence to “The parties” to the investigation. This change clarifies CBP's intent as to who may submit additional information and makes the language consistent with the term “parties to the investigation,” as defined in § 165.1. For ease of reading, CBP reorganized 165.23(c)(2), breaking it out into subparagraph (i) dealing with the requirements associated with the voluntary submission of factual information and subparagraph (ii) detailing the requirements for the submission of rebuttal information to the submitted factual information.

In the newly created paragraph (c)(2)(i), CBP added language to provide CBP with the discretion to extend the deadline for voluntary submission of factual information if CBP determines that circumstances warrant an extension. In many past investigations, CBP was under considerable time constraints to timely review and assess the information gathered during the investigation before making a determination as to evasion. In exceptional cases, CBP had already extended the deadline in § 165.23(c)(2). When the interim regulations were drafted, the timelines stated therein seemed feasible; however, CBP's experience over the past seven years has shown that there are situations where CBP needs additional time to investigate and, therefore, needs to have the discretion to extend the deadline for the voluntary submission of factual information when the circumstances warrant. There may be situations where verifications are difficult to conduct due to travel restrictions or other obstacles, and CBP needs the flexibility to extend the deadline for the voluntary submission of factual information in order to conduct a fulsome investigation. If CBP extends the deadline in § 165.23(c)(2)(i), the parties to the investigation will be notified of the extension and will be given the opportunity to make submissions up to the end of the extended deadline. To make the remaining language in § 165.23 consistent with this change, CBP revised the last sentence of (c)(1) by removing the reference to the 200-day deadline and replacing it with a reference to (c)(2), which sets forth the deadline, including the possibility for CBP to extend the deadline at its discretion. It is important to note that this discretionary extension of the deadline in § 165.23(c)(2)(i) does not go beyond the statutory limit of 360 days (19 U.S.C. 1517(c)(1)) by which CBP is required to make a determination as to evasion.

In addition, in newly created § 165.23(c)(2)(i), CBP replaced the clause “except rebuttal information as permitted pursuant to the next sentence herein” with a reference to (c)(2)(ii), pointing to the time frame and requirements for the submission of rebuttal information. Lastly, in the newly created paragraph (c)(2)(ii), CBP removed the phrase “from the date of service of any factual information,” keeping only the phrase “from the date of placement of any new factual information” because CBP's practice has been to use the date of placement of new factual information on the administrative record as the trigger for the 10-calendar-day period for providing rebuttal information. Removing this phrase does not change the parties' rights to provide rebuttal information and the time frame for submitting rebuttal information.

In § 165.23(d), CBP included language in the second sentence to clarify that CBP intends to place a written summary of an oral discussion between CBP and any party from whom CBP requests factual information on the administrative record once an investigation has been initiated, consistent with CBP's practice. It is important to note that oral discussions between the alleger and CBP regarding flaws in an allegation will not be placed on the administrative record. In addition, CBP switched the order of the words “confidential” and “business” in the third sentence of paragraph (d) as the proper term is “business confidential information” and it was erroneously written in the interim regulations as “confidential business information.”

In § 165.24, CBP replaced the word “notification” in the first sentence of paragraph (c) with “notice” as CBP serves an actual notice of the decision to take interim measures. In addition, CBP amended the last sentence of paragraph (c) stating that CBP will provide the public version of the administrative record within 10 business days of issuing a notice of initiation of an investigation. When the interim regulations were drafted, it seemed operationally feasible to provide the public version of the administrative record and the notice of initiation of investigation and interim measures on the same date. However, due to TRLED's heavy workload, it has proven difficult in many cases to provide the entire administrative record, limited to public information, after day 90 of the investigation, on the same day as the notice of initiation of investigation and interim measures, as CBP needs time to prepare the public versions of documents on the administrative record before providing them to the parties to the investigation.

CBP made changes to § 165.26(a)(1) and (b)(1) that are similar to the changes discussed above for § 165.23(c), providing CBP the discretion to extend the deadlines for submitting written arguments and responses to written arguments if the circumstances warrant. The need to extend a deadline under § 165.26(a) has frequently become apparent, usually due to the verification process not being completed in time. The purpose of such an extension is to grant an additional 60 days in those instances to complete the verification, give parties adequate time to present written arguments, and for CBP to make a determination as to evasion. In addition, CBP reorganized paragraph (a)(1) and included language stating that an extension of the 230-calendar-day deadline cannot exceed 300 calendar days after the investigation was initiated, or 360 calendar days after the investigation was initiated (in case of an extension of the deadline for a determination as to evasion pursuant to § 165.22(c)). This change will provide CBP the additional time needed to make a sound decision if circumstances warrant an extension. CBP also reorganized paragraph (b)(1) to include language regarding CBP's discretion to extend the 15-calendar-day deadline if CBP deems it necessary. Further, CBP slightly revised § 165.26(d)(2) to make the language read more easily without changing the substance or meaning of the language.

In § 165.28(c), CBP added the phrase “in accordance with the instructions received from the Department of Commerce” at the end of the sentence in order to align the regulatory language with the statutory language in 19 U.S.C. 1517(d)(1)(D) and provide further clarity.

In order to bring the EAPA regulations in line with the statutory language in 19 U.S.C. 1517(c), CBP removed the word “initial” before the word “determination” throughout §§ 165.41, 165.45 and 165.46. CBP added “as to evasion” after “determination” in the heading of subpart D, as well as in the section heading for § 165.41 to distinguish a determination as to evasion from a determination that is made during the administrative review. In addition, CBP has removed the last sentence of § 165.41(i) as it is redundant and potentially confusing. The 30-business-day deadline for filing a request for an administrative review is set forth in § 165.41(d).

CBP made three changes in the introductory paragraph of § 165.41(f). First, at the end of the first sentence, CBP added the phrase “in total (including exhibits but not table of contents or table of authorities),” which can also be found in § 165.42, in order to make the page limit requirements for a request for administrative review consistent with the requirements for a response to a request for administrative review. Second, CBP replaced the word “upon” with “on for clarity. And third, CBP added a sentence to clarify that CBP will reject a request for administrative review that does not meet the requirements of paragraph (f) and will not consider it or place it on the administrative record. Further, in § 165.41(h), CBP removed the language “involving the same importer and merchandise” as this is not a correct statement as to the consolidation of requests for administrative review. There is no limitation in practice as to the possibility of consolidating separate requests for administrative review that relate to one consolidated investigation, which may include different importers and merchandise.

In addition, CBP added a sentence in § 165.42 to clarify that the original submitter of a request for administrative review is not included as one of the parties who may submit a written response to the filed request for review. It has never been CBP's intent that a party who submitted a request for administrative review be able to respond to its own submission, and CBP wants to confirm this intent in the final regulation. CBP also replaced the word “upon” with “on” in § 165.42 for clarity.

CBP amended § 165.44 by adding two sentences at the end of the section to clarify that CBP will only accept written submissions of additional information in response to a request by CBP, and that meetings or any other methods of unsolicited submission of additional information during the administrative review are not permitted. Throughout subpart D, only written submissions and additional written information, and no other methods, such as oral discussions as allowed in subpart C, will be accepted. See §§ 165.41(f), 165.42, and 165.44.

Lastly, CBP made two minor changes in § 165.46. In paragraph (a), CBP replaced the reference to “EAPA” with a reference to “TFTEA” as it is more accurate. In addition, CBP replaced the term “final administrative determination” in § 165.46(b) with “administrative review” to mirror the statutory language used in 19 U.S.C. 1517(f).

Based on the analysis of the comments and further consideration, CBP has decided to adopt as final the interim regulations published in the Federal Register on August 22, 2016, as modified by the changes based on public comments, and the technical changes and clarifications discussed above.

Executive Orders 13563 (Improving Regulation and Regulatory Review) and 12866 (Regulatory Planning and Review), as amended by Executive Order 14094 (Modernizing Regulatory Review), 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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.

The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866, as amended by Executive Order 14094. Accordingly, OMB has not reviewed it.

This rule has resulted in undiscounted costs to the public of $20,008,985 to file allegations and communicate to CBP during the EAPA investigation process and to file administrative review requests since the IFR was published in 2016. The rule has resulted in $20,542,915 in costs to CBP. Qualitative benefits of this rule include improved enforcement of AD/CVD orders, increased transparency and predictability in the processing of AD/CVD evasion allegations, and increased communication with the public.

As mentioned above, on February 24, 2016, President Obama signed into law the Trade Facilitation and Trade Enforcement Act of 2015, which contains Title IV-Prevention of Evasion of Antidumping and Countervailing Duty Orders (short title “Enforce and Protect Act of 2015” or “EAPA”) (Pub. L. 114-125, 130 Stat. 122, 155, (Feb. 24, 2016) (19 U.S.C. 4301 note)). Section 421 of TFTEA requires that regulations be promulgated where necessary to implement the provisions of EAPA. Previous customs laws did not establish a set of specific formal procedures for parties to submit allegations of antidumping or countervailing duty (AD/CVD) evasion to CBP. EAPA provides CBP with new and additional tools with which to combat the problem of AD/CVD evasion with the establishment of a formal process for investigating allegations of the evasion of AD/CVD orders. On August 22, 2016, CBP published an interim final rule (IFR) in the Federal Register (81 FR 56477), which established a transparent process for making allegations, investigating such allegations, and reporting the results of investigations. This process provides access to information for the parties to the investigation, giving CBP the opportunity to conduct improved and more thorough investigations of each allegation and to make informed AD/CVD evasion decisions. This final rule makes permanent the interim regulations, including a change based on the previously published technical correction, changes in light of the public comments received in the comment period, as well as changes based on CBP's own review of the interim regulations and the established investigation process.

AD/CVD duties are an important trade measure that shields domestic companies from unfair trade practices by overseas competitors. In fiscal years 2020 and 2021, CBP assessed approximately $1.8 billion  5 and $2.4 billion  6 in antidumping and countervailing duties, respectively. With so much money at stake, the incentives to circumvent AD/CVD orders imposing these duties are high. The public benefits from having a more formalized and clear AD/CVD evasion allegation process, and such a process gives CBP the information it needs to be more effective with AD/CVD enforcement. Furthermore, this rule fulfills the legal mandate set forth in EAPA to establish a formal AD/CVD evasion allegations process and an investigation program.

The antidumping (AD) law provides relief to domestic industries that have been materially injured or are threatened with material injury by imported merchandise sold in the U.S. market at prices below fair market value. The countervailing duty (CVD) law provides relief to domestic industries that have been materially injured or are threatened with material injury by imported merchandise sold in the U.S. market that has been unfairly subsidized by a foreign government or public entity. AD/CVD laws provide for additional import duties to be placed on the dumped or subsidized imports to offset the unfair dumping or subsidization of those imports.

Before the promulgation of interim final regulations, there was not a formal procedure for interested parties and other Federal agencies to submit allegations and evidence of AD/CVD evasion to CBP or a requirement for CBP to undertake a formal investigation in response to allegations of evasion. If an entity wanted to file an AD/CVD grievance against another business it would have had to submit a grievance via CBP's Trade Violation Reporting (TVR) system for general e-Allegations or contact CBP by other means, and a CBP employee would assist it in submitting its allegation. After the alleger provided all the required information, CBP would examine the information and determine whether to initiate an informal inquiry. There was not a formal process in place for CBP to reach out to the entity initiating the allegation to inform it of the results of its grievance and in many cases the alleger never heard back from CBP after the allegation was made. There was also no mechanism for the accused entity to know that it was under an e-Allegation investigation nor opportunity for it to provide information in its defense unless CBP decided to open a formal investigation. AD/CVD grievances submitted via the “Report Trade Violation” option on the TVR website are commonly referred to as “e-Allegations.”

EAPA provides CBP with a formal process for conducting administrative investigations involving possible evasion of AD/CVD orders. CBP has established a new process under EAPA whereby CBP can formally reach out to the alleger, the alleged evader, and other interested parties with separate and distinct questionnaires in order to acquire information that will be used to determine whether an investigation is warranted and whether evasion is occurring or has occurred.

Parties submitting EAPA allegations do so through the EAPA Portal, which was launched in April 2021. New users are prompted to create an account and provide their name and email address in the account creation process. The creation of an account and submission of an allegation via the EAPA Portal are estimated to take three minutes (0.05 hours) and 12 minutes (0.20 hours) respectively, for a total time burden of 15 minutes (0.25 hours) for a first EAPA allegation by a user. Information provided during account creation is automatically inserted into documents submitted to CBP through the EAPA Portal and reduces the time burden to submit an EAPA allegation by three minutes when compared to the time burden prior to the introduction of the EAPA Portal. Users would also save the three minutes related to account creation for each allegation submitted after the first when compared to the previous method of having to submit the information again directly into the EAPA Portal. Prior to the launching of the EAPA Portal (and its EAPA-dedicated predecessor), EAPA allegations were submitted via a dedicated link on CBP's TVR system to a document for the alleger to complete and documents submitted as part of the investigation were sent via email. The time it takes to enroll in the EAPA Portal is equal to the time saved the first time the EAPA Portal is used. For repeat users, there will be a three-minute time savings, but CBP lacks data to estimate how often this takes place. To the extent the EAPA Portal is used more than once by individual users, there will be a three-minute savings per use. For the purpose of this analysis, CBP assumes the EAPA Portal has no impact on time burdens.

CBP estimates that the submission of an EAPA allegation takes approximately 15 minutes (0.25 hours). 7 The statute requires a CBP employee to advise and provide technical assistance to the alleger in the filing of the EAPA allegation. In practice, this has eliminated the necessity of a follow-up questionnaire to be filled out by the alleger.

The alleged evader may receive a CBP Form 28 (CF-28) (Request for Information) or an Initial Request for Information questionnaire and other interested parties may receive an Initial Request for Information questionnaire. Responding to CBP's request for information via these instruments is optional; however, any party, except, e.g., a foreign government, customer, or supplier, that chooses not to respond could be subject to adverse inferences and the investigation may lead to an unfavorable outcome for that party. The expected time burdens to complete and submit a response to the CF-28 and Initial Request for Information are approximately 60 and 90 hours, respectively. 8 If CBP determines that more information is required to bring an EAPA case to a close, relevant parties will receive a Supplemental Request for Information questionnaire. A Supplemental Request for Information questionnaire is typically issued because a party did not fully answer questions in the CF-28 or Initial Request for Information questionnaire. The Supplemental Request for Information questionnaire is estimated to have a time burden of 60 hours to complete and submit. 9

To estimate the cost to the industry from filing an EAPA allegation and responding to the subsequent forms, CBP must first determine a value of time for entities who would complete and file the forms. CBP expects that, in most cases, these documents will be completed and filed by an outside attorney due to the complex and specialized nature of international trade law. CBP estimated the cost to companies to hire an outside attorney to be $400 per hour in 2016  10 and adjusted the wage to $466.38 in 2022 dollars. 11 Each document's time burden is then multiplied by the hourly cost to hire an outside attorney to determine a total cost for each form. As shown in Table 1, the cost to file a single EAPA allegation is monetized by multiplying the time burden (.25 hours) and the hourly attorney costs ($466.38 in 2022 dollars) which results in a cost of $116.60 per filing. The estimated cost to the industry for filing each document is shown in Table 1 along with their corresponding time burdens.

This rule formalized the written argument process with the implementation of timelines for submittal. There is no additional cost to the public as a result of the new formal written argument process as the public already had the ability to submit written arguments to CBP, though not as part of a formal process.

This rule also established a process by which either the alleger or the alleged evader may request an administrative review of a determination as to evasion. The interested party has 30 business days after the determination to request an administrative review. CBP estimates an administrative review request takes 50 hours to complete and submit.

The total cost of this rule to the industry is fully monetized by multiplying the cost per submission from Table 1 and the number of submissions in Table 2 and then summing the results for each year. The product of the cost per submission and the submissions by fiscal year are shown in Table 3, as well as the summing of each year's undiscounted costs.

CBP incurs costs throughout the EAPA investigative process and created two new branches to handle the new filings and resulting investigations. These two new branches are staffed with a total of 15 full-time equivalent (FTE) employees. The average CBP Trade and Revenue fully-loaded salary in fiscal year 2022 was $228,254.61. 12 This rule created 15 full-time equivalent positions and multiplying this by the FY 2022 wage rate results in $3,423,819 in undiscounted costs annually since 2016. As shown in Table 5, the total costs to CBP for the fiscal years 2016-2021 were $22,811,066 and $26,205,984 discounted at three and seven percent, respectively.

In summary, this rule resulted in a cost to the public of $18,337,822 to file EAPA allegations and respond to the questionnaires, under the EAPA investigation process since the EAPA IFR was published in 2016. In addition, CBP estimates that it cost the public $873,171 to file administrative review requests. In total, this rule has resulted in an undiscounted cost to the public of $19,210,993 and $20,542,915 to CBP.

Domestic producers and legitimate importers benefit from better enforcement as a result of this rule. In fiscal year 2021, the EAPA process prevented the evasion of over $375 million in AD/CVD duties. 13 As domestic producers and legitimate importers grow more accustomed to the EAPA process, it is likely that this number will increase but CBP is unable to quantify this growth at this time.

Importers and domestic producers also benefit from increased transparency and predictability in the processing of AD/CVD evasion allegations because of this rule. Previously, an alleger submitted an e-Allegation to CBP and CBP was not able to provide any subsequent follow up to that alleger. This rule increased the transparency of the allegation process and set clear time frames for all parties involved. Furthermore, CBP increased communication with the public as a result of this rule, specifically regarding technical assistance and advice on how to properly file AD/CVD evasion allegations. This outreach could result in faster processing and response times for grievances; however, CBP is unable to quantify these benefits.

Additionally, this rule established a stronger working relationship among CBP, the trade community, and foreign governments in the effort to prevent evasion of AD/CVD duties. This rule gave CBP access to more information from all affected parties, which helps CBP improve AD/CVD enforcement. This rule helps prevent the circumvention of the AD/CVD laws, which benefits domestic producers by shielding them from unfair trade practices. Furthermore, to the extent that this rule reduces the evasion of AD/CVD payments, the government will benefit through higher AD/CVD revenue.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996, requires agencies to prepare and make available to the public a regulatory flexibility analysis that describes the effect of a proposed rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions) when the agency is required to publish a general notice of proposed rulemaking for a rule. Since a general notice of proposed rulemaking was not necessary for the IFR, CBP is not required to prepare a regulatory flexibility analysis for this rule.

The Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3507(d)) requires that CBP consider the impact of paperwork and other information collection burdens imposed on the public. An agency may not conduct, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by the Office of Management and Budget (OMB).

The e-Allegations submission information collection, which is assigned OMB control number: 1651-0131, 14 is being amended to reflect the change in burden hours caused by the EAPA requirements, and to include the EAPA Portal as described above, and to reflect the provisions of §§ 165.5(a) and 165.23(a). To create an account to access the EAPA Portal and submit an EAPA allegation, users provide their first name, last name, and email address and the process of account creation is estimated to take three minutes (0.05 hours). CBP estimates that the creation of 250 EAPA Portal accounts annually will add a total time burden of approximately 13 hours to the public. CBP estimates that 149 EAPA allegations will be filed annually which is an increase of 82 from what was previously approved by OMB. These additional 82 EAPA allegations will result in an additional time burden of approximately 13 hours to the public, resulting in a total time burden of 30 hours to the public. In total, this rule resulted in an overall increase of 26 burden hours from what is currently approved by OMB. This increases the total burden hours for this collection from 289 to 315. The e-Allegations submission revisions described in this rule have been submitted to OMB for review and approval in accordance with the requirements of the Paperwork Reduction Act (44 U.S.C. 3507). OMB control number 1651-0131 is being revised to reflect the change in burden hours for EAPA respondents ( i.e., those responding to the EAPA submission requirements) and to confirm the burden hours for e-Allegations as follows:

Estimated number of annual respondents: 1,088.

Estimated number of annual responses: 1,088.

Estimated time burden per response: 15 minutes (.25 hours).

Estimated total annual time burden: 272 hours.

Estimated number of annual respondents: 149.

Estimated number of annual responses: 149.

Estimated time burden per response: 12 minutes (0.20 hours).

Estimated total annual time burden: 30 hours.

Estimated number of annual respondents: 250.

Estimated number of annual responses: 250.

Estimated time burden per response: 3 minutes (0.05 hours).

Estimated total annual time burden: 13 hours.

Comments concerning the collections of information and the accuracy of the estimated annual burden, and suggestions for reducing that burden, should be submitted to OMB via https://www.reginfo.gov.

This document is being issued in accordance with 19 CFR 0.1(a)(1) pertaining to the authority of the Secretary of the Treasury (or the Secretary's delegate) to approve regulations related to certain customs revenue functions.

Troy A. Miller, Senior Official Performing the Duties of the Commissioner, having reviewed and approved this document, has delegated the authority to electronically sign this document to the Director (or Acting Director, if applicable) of the Regulations and Disclosure Law Division of CBP, for purposes of publication in the Federal Register .

For the reasons given above, the IFR, which was published at 81 FR 56477 on August 22, 2016, adding part 165 to Chapter I of the CBP regulations (19 CFR part 165), is adopted as final with the following changes:

Subject to OSMRE's oversight, section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7). Based on these criteria, the Secretary of the Interior conditionally approved the West Virginia program on January 21, 1981. You can find background information on the West Virginia program, including the Secretary's finding, the disposition of comments, and conditions of approval of the West Virginia program in the January 21, 1981, Federal Register (46 FR 5915). You can also find later actions concerning West Virginia's program and program amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

By letter dated April 25, 2011, received by us on May 2, 2011 (Administrative Record Number WV-1561), the West Virginia Department of Environmental Protection (WVDEP) submitted an amendment to its program under SMCRA, docketed as WV-118-FOR. The proposed amendment consists of regulatory revisions to the West Virginia Surface Mining Reclamation Regulations at CSR Title 38, Series 2, as contained in Committee Substitute for Senate Bill 121 of 2011. See 2011 W.Va. Acts ch. 109. As is discussed more fully below, because West Virginia has made multiple submissions with respect to the same or similar provisions of statue and regulations, only a portion of the original submission from West Virginia will be addressed in this final rule. The remaining portion of WV-118 will be addressed in a subsequent final rule.

Relevant to this Notice, Senate Bill 121 authorizes regulatory revisions codifying an emergency rule issued on December 16, 2009, which amend the existing West Virginia coal mining regulations by adding trust funds and annuities as approved forms of financial assurance instruments.

We announced receipt of the proposed amendment in the November 2, 2011, Federal Register (76 FR 67637). In the same notice, we opened a public comment period and provided an opportunity for a public hearing on these provisions (Administrative Record Number WV-1573). The public comment period closed on December 2, 2011. We received responses from three Federal agencies stating that they had no comments.

By letters dated May 2, 2018 (Administrative Record Nos. WV-1613A, in part, and WV-1613B), WVDEP submitted an amendment to its program under SMCRA, docketed as WV-126-FOR. The amendment contains revisions to the WVSCMRA and the West Virginia Surface Mining Reclamation Regulations at CSR 38-2-1 et seq., as contained in Committee Substitutes for Senate Bills 163 and 626 of 2018. See 2018 W.Va. Acts chs. 141, 152.

Senate Bill 163 seeks to revise regulatory provisions involving definitions, reclamation, the environmental security account for water quality, water quality enhancement and modifying sections on incremental bonding, release of bonds, forfeiture of bonds, effluent limitations, and blasting.

Senate Bill 626 seeks to revise statutory provisions about the method in which permit applications, permit revisions, and informal conferences are advertised under WVSCMRA and make several editorial corrections about items such as position titles and agency names.

We announced the receipt of the proposed amendment in the February 14, 2020, Federal Register (85 FR 8497). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. The public comment period ended on March 16, 2020. We did not hold a public hearing or meeting because one was not requested. We received one public comment that is addressed below in the Public Comments section of part IV, Summary and Disposition of Comments.

When announcing the proposed amendment, we removed the blasting portion of Senate Bill 163 from the proposed rule and subsequently announced it on February 10, 2020, (85 FR 7476), as a part of the West Virginia program amendment WV-123-FOR. West Virginia had previously submitted an amendment to its blasting regulations that had not been approved; therefore, in order to keep all changes to the blasting regulations together, we consolidated them into WV-123-FOR.

WVDEP-Division of Mining and Reclamation (DMR) sent a letter to the Regional Director, Interior Regions 1 and 2, dated February 3, 2020. In its letter, West Virginia asked us to prioritize part of the WV-118-FOR submission, in particular changes to CSR 38-2-11.3.f pertaining to financial assurance requirements, which also relates to requirements to release bonds and forfeiture of bonds. These changes are discussed in detail below.

We are approving in part and disapproving in part the revisions proposed in WV-118 and WV-126 as described below. We made the following findings concerning West Virginia's amendment as provided under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. Any revisions that we do not specifically discuss below concerning non-substantive wording or editorial changes can be found in the full text of the program amendment available at www.regulations.gov, searchable by the Docket ID Numbers referenced at the top of this notice.

The following describes the substantive statutory revisions that WVDEP submitted to OSMRE for approval on May 2, 2018 (Administrative Record WV-1613-B) (WV-126).

West Virginia submitted a revision to this statutory provision that would remove the requirement that an applicant's advertisement of its permit application must be published in a newspaper of general circulation in the locality of the proposed permit area at least once a week for four successive weeks and add in its place a requirement that an applicant's advertisement must be on a form and in a manner prescribed by the Secretary, which manner may be electronic.

OSMRE Finding: We are not approving this section of the amendment as it is less stringent than sections 507(b)(6) and 513(a) of SMCRA (30 U.S.C. 1257(b)(6) and 1263(a)) and less effective than the Federal regulations at 30 CFR 773.6. Updating the public notification process to include electronic means is desirable. However, SMCRA specifically requires that permit applications, significant revisions, or renewal of a permit must be announced with an advertisement in a local newspaper of general circulation in the locality of the mining and reclamation operation at least once a week for four consecutive weeks. As one of the commenters notes, West Virginia cannot ensure that electronic public notice will reach the same audience contemplated by SMCRA's newspaper requirement. Therefore, while adding electronic means is encouraged, the elimination of the newspaper requirement renders the proposal less stringent and less effective than the Federal requirements.

West Virginia submitted two revisions to this statutory provision consistent with its proposed revision to section 22-3-9(a)(6), above. The first revision, concerning subsection (a), would remove the requirement that, at the time of submission, the applicant must place the advertisement of its permit application or permit revision in a local newspaper of general circulation in the county of the proposed surface mining operation at least once a week for four consecutive weeks and add in its place a requirement that the applicant must submit to WVDEP a copy of the required advertisement for public notice on a form and in a manner prescribed by the Secretary, which manner may be electronic. The second revision, concerning subsection (b), would remove the requirement that the Secretary of WVDEP must advertise the date, time, and location of the informal conference in a newspaper of general circulation in the locality of the operation at least two weeks before the scheduled informal conference date and add in its place that the advertisement be on a form and in a manner prescribed by the Secretary, which manner may be electronic.

OSMRE Finding: We are not approving the proposed revision to section 22-3-20(a) as it is less stringent than sections 507(b)(6) and 513(a) of SMCRA (30 U.S.C. 1257(b)(6) and 1263(a)) and less effective than the Federal regulations at 30 CFR 773.6, which require that permit applications, significant revisions, or renewal of a permit must be announced with an advertisement in a local newspaper of general circulation in the locality of the mining and reclamation operation at least once a week for four consecutive weeks. As noted above, while updating the public notification process to include electronic means is desirable, the elimination of the newspaper requirement renders the proposal less stringent and less effective than the Federal requirements. For these same reasons, we are also not approving the proposed revision to W.Va. Code 22-3-20(b) amending the notice requirement, as doing so would render the provision less stringent than section 513(b) of SMCRA (30 U.S.C. 1263(b)) and less effective than the Federal regulations at 30 CFR 773.6(c)(2)(ii), which require the regulatory authority to advertise the date, time, and location of informal conferences in a newspaper of general circulation in the locality of the proposed operation.

The following describes substantive regulatory revisions that WVDEP submitted to us for approval on April 25, 2011 (Administrative Record WV-1561) (WV-118) and May 2, 2018 (Administrative Record WV 1613-A) (WV-126).

West Virginia proposes to remove the following definitions for lack of Federal counterpart:

a. CSR 38-2-2.6. Acid Test Ratio means the relation of quick assets to current liabilities.

b. CSR 38-2-2.37. Completion of Reclamation means that all terms and conditions of the permit have been satisfied, the final inspection report has been approved by the Secretary, that all applicable effluent and applicable water quality standards are met, and the total bond has been released.

OSMRE Findings: The term “acid test ratio” has no Federal counterpart and is not used in the existing West Virginia regulations; the CSR defines other terms, including “asset ratio” and “current ratio” under CSR 38-2-2 (relating to definitions); and “current assets” and “current liabilities,” as defined and used under CSR 38-2-11.3.d (relating to self-bonding), make up the definition of “acid test ratio.” As such, we have determined that the proposed deletion does not render the West Virginia statute or regulations either less stringent than SMCRA or less effective than the Federal regulations found at 30 CFR 701.5, and we approve of its removal.

There is no direct counterpart in the Federal regulations for the West Virginia defined term “completion of reclamation.” This term follows the WVSCMRA requirements that an operator must faithfully and fully perform all requirements of the statute and of the permit before a bond is fully released and reclamation is determined to be complete. See W.Va. Code 22-3-11; 22-3-23(c)(3).

While the Federal regulations do not define the term “completion of reclamation” they do define “reclamation” at 30 CFR 701.5 as “those actions taken to restore mined land as required by this chapter to a postmining land use approved by the regulatory authority” (emphasis added). In addition to the term “completion of reclamation,” the CSR contains a stand-alone term “reclamation” defined as “those actions taken to restore mined land to the approved postmining land use.” Notably missing from the West Virginia definition is the reminder of the obligation to take all actions required by the regulations including those not solely focused on restoring mined land to its approved postmining land use approved by the regulatory authority.

The Federal regulations at 30 CFR 732.15 clarify that the State's laws and regulations, collectively, must be in accordance with SMCRA and consistent with the Federal regulations. We have previously found the CSR definition of “reclamation” to be no less effective than the Federal requirements when the regulations are “viewed in their entirety with WVSCMRA,” despite its deviation from the Federal definition. See 55 FR 21304, 21306 (May 23, 1990) (explaining that any provisions not specifically discussed in this notice were “substantively identical to the corresponding Federal regulations in effect on June 9, 1988, with minor changes to improve clarity and specificity and to incorporate State references and terms were deemed necessary or useful”). While nothing in the approved West Virginia stand-alone definition of “reclamation” permits operators to deviate from the statutory and regulatory requirements, the term “completion of reclamation” offers clarity and an unambiguous reminder of the obligation, similar to that in the Federal definition of “reclamation,” to take all actions required by the regulations, not just those necessary to achieve the approved postmining land use as approved by the regulatory authority. Specifically, it requires that “all terms and conditions of the permit have been satisfied, the final inspection report has been approved by the Secretary, that all applicable effluent and applicable water quality standards are met, and the total bond has been released.” The additional protections incorporated in the term “completion of reclamation” are now proposed to be removed. When taken together, the two approved terms “reclamation” and “completion of reclamation” made the West Virginia program no less effective than the Federal regulations. The current proposal to remove one of the two terms would make the West Virginia program collectively less effective than the Federal regulations in that it would create an ambiguity in the requirement to take all actions required by the regulations beyond those immediately necessary to restore mined land to a postmining land use approved by the regulatory authority.

For example, we first relied upon the definition of the term “completion of reclamation” when we approved the definition of the term “disturbed area” currently in W.Va. Code 22-3-3(j). See 46 FR 5915, 5920 (Jan. 21, 1981). In that approval, we explained that even though West Virginia's definition of “disturbed area” lacked language from the Federal definition prescribing that an area is considered disturbed until the bond is released, the definition of “completion of reclamation” made that clear. Later, we relied upon the definition of the term “completion of reclamation” to remove required amendments of the West Virginia program with respect to its financial assurance requirements and obligations. West Virginia uses an approved alternative bond system that is designed to achieve the objectives and purposes of section 509 of SMCRA as implemented in 30 CFR 800.11(e)(1). Historically, West Virginia's alternative bond system, commonly referred to as the Special Reclamation Fund, has been the subject of amendments, some required by us to address inadequacies of the system, eliminate the deficit in the State's alternative bonding system, and ensure that sufficient money will be available to complete reclamation. Those obligations included the treatment of polluted water discharged from all bond forfeiture sites and a requirement that moneys from the Special Reclamation Fund must be used, where needed, to pay for water treatment on bond forfeiture sites. These required amendments were removed, in part, based upon the existing definition at CSR 38-2-2.37 and its role in supporting the mandatory requirement that bond forfeiture monies be used, where needed, for acid mine drainage treatment. See 60 FR 51900 ( October 4, 1995); 66 FR 67446 ( December 28, 2001); and 67 FR 37610, 37613-14 (May 29, 2002).

In view of the statutory and regulatory framework and history discussed, we conclude that the removal of the definition “completion of reclamation” would render the West Virginia program less effective than the Federal regulations, and we are not approving its removal.

CSR 38-2-9.3.d Standards for Evaluating Vegetative Cover. West Virginia proposes to amend this section to remove the minimum two-year waiting period for WVDEP to conduct a vegetative inspection, a precondition to a Phase II bond release. The proposal will remove the phrase “Not less than two (2) years following the last date of augmented seeding” while retaining the requirement: “the Secretary shall conduct a vegetative inspection to verify that applicable standards for vegetative success have been met.”

OSMRE Findings: The Federal regulations at 30 CFR 816.116 and the West Virginia regulations at CSR 38-2-9.3 identify the applicable standards for vegetative success, and 30 CFR 800.40(c) and CSR 38-2-12.2.c describe the regulatory authority's responsibility to verify compliance with revegetation requirements before releasing a commensurate amount of bond. While individual vegetative standards can have timing elements associated with their successful establishment (for example, trees and shrubs counted to determine the success of fish and wildlife habitat must be in place for not less than two growing seasons, see 30 CFR 816.116(b)(3)(ii) and CSR 38-2-7.7.f.3 and 9.3.g), neither SMCRA nor the Federal regulations establish a blanket waiting period for the regulatory authority to conduct an evaluation of vegetative success. The two year waiting period for inspection under the successful revegetation standards in CSR 38-2-9.3.d is a companion provision to CSR 38-2-12.2.c.2, which requires for Phase II bond release that “[n]ot less than two years after the last augmented seeding, standards for revegetation success have been met.” West Virginia also proposes to delete CSR 38-2-12.2.c.2, which we discuss and approve below.

When we approved West Virginia's inspection frequency of inactive mines, we explained that West Virginia's two-year requirement under CSR 38-2-12.2.c.2 was more stringent than Federal requirements. The Federal requirements at 30 CFR 800.40(c) “require only that revegetation be successfully established, with the definition of `established' left to the discretion of the regulatory authority, provided it includes adequacy to control erosion and compliance with the species composition requirements of the reclamation plan.” See 55 FR 21304 (May 23, 1990). When a regulatory authority proposes to remove a provision that is more stringent than the Federal requirements, we must still ensure the remaining provisions are not rendered less stringent than those requirements. For purposes of the inspection following an application for bond release, the timing of WVDEP's inspection under CSR 9.3.d is not critical to a mining operator's achievement of the relevant vegetative performance standard or to WVDEP's evaluation of whether the standard is met. The proposed amendment to CSR 38-2-9.3.d retains West Virginia's commitment to verify that applicable standards for vegetative success have been met before the relevant portion of bond is released and, therefore, is no less stringent than Sections 505 and 519 of SMCRA (30 U.S.C. 1265 and 1269) or less effective than the Federal regulations at 30 CFR 800.40 and 816.116. Therefore, we are approving the amendment.

CSR 38-2-11.3.f—Special consideration for sites with long-term postmining pollutional discharges. West Virginia proposes to add a new rule which states that, upon approval of the WVDEP Secretary, a permittee may establish a trust fund, annuity, or both to guarantee treatment of long-term postmining pollutional discharges in lieu of posting one of the other approved forms of bond. The new rule subjects the trust fund or annuity to the following conditions: (1) WVDEP will determine the amount of the trust fund or annuity, and that amount must be adequate to meet all anticipated treatment needs, including capital and operating expenses; (2) it must be in a form approved by WVDEP and contain all terms and conditions required by WVDEP; (3) it must irrevocably establish WVDEP as the beneficiary; (4) WVDEP will specify the investment objectives of the instrument; (5) termination will only occur only as specified by WVDEP upon its determination that no further treatment or other reclamation measures are necessary, that a replacement bond or other financial instrument has been posted, or that the administration of the instrument requires termination in accordance with its purpose; (6) release of money may be made only upon written authorization by WVDEP or according to a schedule established in the trust or annuity agreement; (7) the financial institution or company serving as trustee or issuing the annuity must be a bank or trust company organized or authorized to do business in West Virginia, a national bank chartered by the West Virginia Office of the Comptroller of the Currency, an insurance company licensed or authorized to do business in West Virginia or designated by the West Virginia Insurance Commissioner as an eligible surplus lines insurer, or any other financial institution or company with trust powers and with offices located in West Virginia provided that its activities are examined or regulated by a State or Federal agency; (8) the trust fund or annuity must be established in a manner that guarantees that sufficient money is will be available to pay for the treatment of postmining pollutional discharges (including maintenance, renovation, and replacement of treatment support facilities), the reclamation of sites upon which the treatment facilities are located, and areas used in support of those facilities.

Finally, West Virginia's new rule specifies that when the trust fund or annuity is in place and fully funded sufficient to treat all discharges and reclaim all areas involved in such treatment, WVDEP may approve the release of conventional bonds posted for the permit or permit increment, provided that apart from the pollutional discharge covered by the trust or annuity, the area fully meets all applicable reclamation requirements. The new rule further specifies that portions of the permit required for treatment must remain bonded, but that the trust or annuity serves as that bond.

OSMRE Findings: SMCRA, WVSCMRA, and their implementing regulations require that performance bonds or approved alternatives be sufficient to cover treatment of long-term postmining pollutional discharges in the event that the permittee fails to do so. See 30 U.S.C. 1259(a) and W.Va. Code 22-3-11. W.Va. Code 22-3-11(a) requires that each permittee post a performance bond conditioned upon faithful performance of all the requirements of the WVSCMRA and the permit. W.Va. Code 22-3-11(c)(2) authorizes the Secretary of WVDEP to “approve an alternative bonding system if it will: (A) Reasonably assure that sufficient funds will be available to complete the reclamation, restoration and abatement provisions for all permit areas which may be in default at any time; and (B) provide a substantial economic incentive for the permittee to comply with all reclamation provisions.” The statutory requirements for a “reclamation plan” include the measures to be taken to assure the protection of water quality. See W.Va. Code 22-3-10.

A prudent approach to provide financial assurances for long-term treatment of pollutional discharges is to allow the permittee to establish a dedicated income-producing account, such as a trust fund or annuity or both, that is held by a third party as trustee for the regulatory authority. Neither trust funds nor annuities are specifically defined in WVSCMRA or SMCRA. However, we have previously recognized and approved trust funds as a form of collateral bond, as well as an alternative bonding mechanism. See 70 FR 25472 (May 13, 2005), amended at 70 FR 52916 (May 13, 2005); and 75 FR 48526 (August 10, 2010). In addition, trust funds and annuities are approved as options for bonding long-term pollutional discharges in Tennessee under our implemented Federal regulatory program. See 30 CFR 942.800(c).

Trust funds and annuities give the permittee a mechanism to generate a revenue stream to fund long-term treatment of pollutional discharges. See 72 FR 9615 (March 2, 2007). Under the provisions West Virginia proposes, the income stream from a fully funded trust fund or annuity will be used to fund treatment of postmining pollutional discharges (including maintenance, renovation, and replacement of treatment and support facilities as needed) and the reclamation of the sites upon which treatment facilities are located and areas used in support of those facilities. The trust fund or annuity will be employed in a manner to ensure final bond release is not permitted until all reclamation is completed and all pollutional discharges are eliminated or otherwise cease to exist. The provisions West Virginia has proposed are identical to those we promulgated for the Tennessee program at 30 CFR 942.780(c), with the exception of certain agency names and internal citations consistent with the existence and use of these trusts and annuities in West Virginia under the approved West Virginia program. We have determined that West Virginia's addition of special consideration for sites with long-term postmining pollutional discharges is in accordance with the provisions of SMCRA and consistent with its implementing Federal regulations, and we approve of its addition.

a. CSR 38-2-11.4—Incremental Bonding. West Virginia proposes to amend this section to reflect the counterpart language found at 30 CFR 800.11.

OSMRE Findings: West Virginia's revised language is substantively identical to the Federal counterpart provisions of 30 CFR 800.11 that include incremental bonding. In its revision, West Virginia eliminates a prohibition in paragraph 11.4.a.2. that reads: “Once the operator has chosen to proceed with bonding either the entire permit area or with incremental bonding, he shall continue bonding in that manner for the term of the permit.” The provision sought to be removed from the West Virginia regulations is contained verbatim in W.Va. Code 22-3-11(a), which will remain in effect. This limitation binding the operator's decision to bond either the entire permit or by increments for the life of the permit is not in the Federal regulations or otherwise required under the Federal program. Removing this limitation from the West Virginia regulations does not render the proposal less effective than the Federal regulations. Therefore, we approve the revisions proposed in CSR 38-2-11.4.

b. CSR 38-2-11.6—Environmental Security Account for Water Quality— West Virginia is proposing the removal of subsection 11.6, which requires WVDEP to study the desirability of developing an environmental security account for water quality. Subdivisions (a) through (e) called for the inclusion of: (a) a screening process for determining which sites have the potential for producing acid mine drainage, (b) a process for predicting the rate and duration of acid mine drainage, (c) a method for estimating water treatment costs, (d) a system to ensure that sufficient monies will be placed in an escrow account to provide financial assurance that treatment will be accomplished and maintained, and (e) procedures to ensure the expenditure of funds from the escrow account in the event of default will provide water treatment. Furthermore, subdivision 11.6.f provides that after the study is completed, the Secretary of WVDEP may propose regulations to implement the environmental security account for water quality, but the regulations will not become effective until approved by the legislature. Subdivision 11.6.g provides that the Secretary of WVDEP will inform the legislature if statutory changes are necessary to implement an effective system for financial assurances. Subdivision 11.6.h provides that no changes proposed by this subsection shall authorize in any way the issuance of a permit in which acid mine drainage is anticipated and which would violate applicable effluent limitations or water quality standards without treatment. Because this study was completed, West Virginia is deleting this provision from its program.

OSMRE Findings: We approved these provisions as part of a decision on the solvency of West Virginia's alternative bonding system on October 4, 1995 (60 FR 51900). This provision required WVDEP to prepare a report and submit it to the West Virginia Legislature within 240 days so that options could be developed to ensure the solvency of West Virginia's alternative bonding system. The study, entitled “Acid Mine Drainage Bond Forfeiture Report” was completed and submitted to the West Virginia Legislature on December 31, 1993. This specific provision did not modify any duties or functions under the approved West Virginia program.

We determined that the development of an environmental security account for water quality could enhance the financial status of the State's special reclamation fund. We noted at the time that there was no correlating Federal provision and that any amendments to the program implemented as a result of the study would have to be approved by us. West Virginia completed the study and has taken various actions and approaches towards addressing the solvency of its alternative bonding system since that time.

The deletion of this specific provision will not have an adverse impact on the ability or the obligation of the West Virginia Alternative Bonding System to meet the criteria in 30 CFR 800.11(e), and we are approving its removal. The renumbering of remaining sections 38-2-11.7 to 38-2-11.6 is likewise approved. This finding does not express an opinion on the solvency or status of the State's alternative bonding systems.

a. CSR 38-2-12.2.a —West Virginia proposes to add, move, and revise language at CSR 38-2-12.2.a.3; 38-2-12.2.a.4; 38-2-12.2.a.4.A; and 38-2-12.2.a.4.B related to bond release. West Virginia proposes requiring, at paragraph 12.2.a.3, that the applicant provide a notarized statement certifying applicable reclamation activities have been accomplished. In addition, West Virginia proposes to restructure and revise existing language from CSR 38-2-12.2.e, e.1, and e.2 to proposed CSR 38-2-12.2.a.4, a.4.A, and a.4.B. Proposed CSR 38-2-12.2.a.4 maintains but modifies the limitation on the release or reduction of bond if water discharged from or affected by an operation requires chemical or passive treatment in order to comply with effluent limitations. West Virginia removed “or water quality standards” from the limitation along with other verbiage modifications. The revised language also modifies an existing prohibition to allow bond release to now be considered for Phases II and III on sites with a discharge requiring treatment so long as the remaining bond or other qualifying financial assurance is adequate to assure long term treatment. Currently, only Phase I bond release may be considered under these circumstances. As proposed, if the applicant demonstrates that the remaining bond is adequate to assure long term treatment or the operator has provided irrevocable financial assurances, WVDEP may approve and release the excess portions of the bond. The application must address, at a minimum, the current and projected quantity and quality of drainage to be treated, the anticipated duration of treatment, and the estimated capital and operating cost of the treatment facility, as well as the calculations that demonstrate the adequacy of the remaining bond or financial assurance. Proposed CSR 38-2-12.a.4.A makes no changes to existing CSR 38-2-12.e.1. Proposed CSR 38-2-12.a.4.B rephrases portions of existing CSR 38-2-12.e.1, adds references to the Federal and state statutes governing water quality treatment, removes a proviso that the alternate arrangement provides a mechanism by which WVDEP can assume the treatment work in the event of the operator's default, and deletes language stating that default on the treatment obligation “shall be considered equivalent to a bond forfeiture,” while retaining that default will subject the operator to penalties and sanctions, including permit blocking.

OSMRE Findings: CSR 38-2-12.2.a.3 is identical to the Federal provision at 30 CFR 800.40(a)(3), which requires certification of all reclamation activities, except West Virginia references “the rules promulgated thereof” instead of “the regulatory program.” This difference is merely editorial; therefore, we are approving this provision. CSR 38-2-12.2.a.4.A is identical to CSR 38-2-12.2.e.1 as we approved it in the July 24, 1996, Federal Register (61 FR 38382), and so we are approving its move.

The provisions at CSR 38-2-12.2.a.4 and 12.2.a.4.B include some revisions to the language we approved in the July 24, 1996, Federal Register (61 FR 38382). While moving the language, West Virginia has excised “or water quality standards” from the previously approved phrase “effluent limitations or water quality standards.” However, West Virginia's performance standards at CSR 38-2-14.5.b., both the existing version and after the revisions we are approving below, describe “effluent limitations” broadly, incorporating all applicable water quality laws and regulations. Therefore, we are approving this change.

Next, West Virginia revises the language of paragraph 12.2.a.4 to allow Phase II and Phase III bond release to be considered for sites with a discharge requiring treatment, where the existing paragraph only allows Phase I release. The two subparagraphs, 4.A and 4.B, allow release only when the remaining bond is adequate to assure long term treatment or the operator provides an irrevocable financial assurance adequate to provide long term treatment. This is consistent with our decisions approving treatment trusts and annuities in Pennsylvania, see 70 FR 25472, 25474 (May 13, 2005) (approving 52 P.S. 1396.4(g)(3) authorizing Phase III bond release when the operator has made provisions for “the sound future treatment of pollutional discharges” and other relevant requirements are met), and Tennessee, see 72 FR 9636, 9619, 9625-26 (March 2, 2007) (promulgating 30 CFR 942.800(c)(9) providing for the release of conventional bonds upon providing a fully-funded trust or annuity to provide for treatment and otherwise meeting reclamation requirements). However, in those approvals we explained that the release of conventional bonds cannot occur until the long-term irrevocable financial assurance is in place and fully funded and other reclamation obligations have been completed and that the remaining site required for treatment must remain bonded but the long-term financial assurance may act as that bond. We also explained that this action is a form of partial bond release in accordance with 30 CFR 800.40(c). West Virginia provides these requirements in the proposed regulations authorizing treatment trusts and annuities at CSR 38-2-11.3.f.8 and f.9, discussed and approved above. However, CSR 38-2-12.2.a.4 and a.4.B are not limited to trust funds and annuities. They apply generally to any irrevocable financial assurance in a form satisfactory to WVDEP, which could include, for example, a dedicated escrow account funded through monthly deposits, see CSR 38-2-11.3.e.2.B.1. West Virginia's escrow account provisions do not separately require the account to be fully funded before all phases of the bond may be released. The broader application of paragraph 12.2.a.4 and subparagraph a.4.B justify the two provisos, which West Virginia proposes to delete, that the arrangement allow for WVDEP's management of treatment in the event of default and that default “shall be considered equivalent to a bond forfeiture.” We did not expressly discuss those provisos when we initially approved them under CSR 38-2-12.2.e.2. See 61 FR 38382, 38384-85 (July 24, 1996). While these provisos might be redundant or unnecessary when the irrevocable financial assurance is a trust fund (where WVDEP is the trustee and the trust is not collected like a bond), they might be necessary where the financial assurance takes a different form, such as a dedicated escrow account, which is allowed to be funded in monthly installments and would require forfeiting upon default. The proposed revisions would leave financial security arrangements other than trust funds and annuities without a set of safeguards to ensure they are fully funded and that a permitted site remains. Therefore, the revisions would render the West Virginia program less effective than the Federal regulations concerning bond release at 30 CFR 800.40 and less stringent than the requirements of SMCRA. Therefore, we are approving the renumbering of, and revisions to, CSR 38-2-12.2.a.4 and a.4.B except the following: from subdivision 12.2.e, now paragraph 12.2.e.4, the deletion of the phrase “Phase I but not Phase II or III” from the last sentence; and from paragraph 12.2.e.2, now subparagraph 12.2.a.4.B, deletion of the proviso that the financial arrangement provide a mechanism whereby WVDEP can assume management of the resource and treatment work in the event of operator default, and deletion of the proviso that default is considered equivalent to a bond forfeiture. Our decision regarding these provisions does not affect our approval above of CSR 38-2-11.3.f.8 and f.9 related specifically to the release of conventional bonds where trust funds and annuities meet all applicable requirements.

b. CSR 38-2-12.2.c.— West Virginia proposes to modify its existing language in this section covering the release of bonds to make it substantively identical to the Federal regulations found at 30 CFR 800.40(c). West Virginia is revising language with respect to the WVDEP Secretary's authority to release all or part of the bond for the entire permit or incremental area if they are satisfied that all reclamation or a phase of the reclamation covered by the bond has been accomplished in accordance with the schedules for reclamation Phases I, II, and III. Through its restructured language, West Virginia has removed the specific limitations relevant to open-acre permit bonding ( i.e., that all coal extraction operations for the permit or increment thereof are completed and that the entire disturbed area for the permit or increment thereof has been completely backfilled and regraded before bond release), and moved the former prohibitions and requirements associated with bond release on sites with water discharges requiring treatment to the preceding section. In addition, West Virginia has eliminated the previously approved requirement that no violations exist relative to the permitted site before bond is released.

In its proposed revision of CSR 38-2-12.2.c.1, while mirroring the language of 30 CFR 800.40(c)(1), West Virginia eliminates specific references to compliance with the WVSCMRA, its implementing rules, and the terms and conditions of the permit, as well as a specific inclusive reference to the need to meet all requirements pertaining to maintaining the hydrologic balance before a Phase I bond release may occur.

In its proposed revision of CSR 38-2-12.2.c.2, West Virginia has eliminated the specified amount (25 percent) that is to be returned upon a Phase II bond release and has eliminated the minimum two-year waiting period after the last augmented seeding standards have been met before a Phase II bond release may occur. As a result of the modifications, the remaining subsections are renumbered.

In its proposed revision of CSR 38-2-12.2.c.3, West Virginia has adopted language from the Federal requirements pertaining to the conditions necessary for the release of a Phase III bond while excluding the requirement that “all surface coal mining and reclamation activities” be successfully completed before Phase III bond release. See 30 CFR 800.40(c)(3). West Virginia's proposal is that “reclamation activities” be complete before any such release.

OSMRE Findings: Through its restructured language, West Virginia looks to simplify and revise its existing provisions with respect to the release of bonds to more closely model Federal language. However, West Virginia's approved program uses an alternative bonding system. This system requires extensive consideration of multiple interdependent factors in arriving at and maintaining a particular bond amount. Through its proposed restructured language, West Virginia is proposing the removal of the specific limitation relevant to open-acre bonding that all coal extraction operations for the permit or increment thereof are completed and that the entire disturbed area for the permit or increment thereof has been completely backfilled and regraded before bond release. In the original approval of this provision, we found: “The State proposes to add new [subdivision 12.2.d] to prohibit the release of any portion of the bonds posted in accordance with subsection 11.5 (open-acre limit bonding) until all coal extraction operations are completed and the entire disturbed area has been completely backfilled and regraded. Because of the floating nature of this type of bond, this restriction is needed to provide a degree of protection consistent with other types of site-specific bond authorized under the alternative bonding system.” 60 FR 51908 (October 4, 1995). Having previously found that these restrictions were necessary as part of the alternative bonding system, absent any rationale or alternative measures demonstrating why this provision is no longer necessary, we do not approve the change. Likewise, as discussed above, the restrictions regarding sites with water discharges are also relevant to bond release. Therefore, the existing introductory language “except as provided in subdivisions 12.2.d and 12.2.e” at CSR 38-2-12.2.c. is retained. We are approving an editorial correction that is necessary to correct the now changed reference from “12.2.e” to “12.2.a.4.”

In its proposed revision of 38-2-12.2.c.1, West Virginia proposes the elimination of requirements to comply with “the Act, this rule, and the terms and conditions of the permit” as well as the elimination of the specific inclusive reference of the need to meet all requirements pertaining to maintaining the hydrologic balance before a Phase I bond release may occur. These references are eliminated in favor of the Federal language that requires compliance with the “approved reclamation plan.” Unlike the Federal regulations at 30 CFR 780.18, the approved West Virginia regulations do not include a specific provision defining the requirements of the “reclamation plan.” However, W.Va. Code 22-3-10 identifies the extensive requirements for a reclamation plan and requires them to be included “in the degree of detail necessary to demonstrate that reclamation required by [WVSCMRA] can be accomplished.” This provision of WVSCMRA remains in effect. When taken together, removal of the requirement references in this section of the West Virginia regulations in favor of the encompassing section of the WVSCMRA does not render the program less stringent than SMCRA or less effective than the Federal regulations. Therefore, we are approving the revisions proposed in 38-2-12.2.c.1.

With respect to the proposed revision of CSR 38-2-12.2.c.2, eliminating the specified amount (25 percent) that is to be returned upon a Phase II bond release, and CSR 38-2-12.2.c.2.A, eliminating the minimum two-year waiting period after the last augmented seeding before revegetation standards may be met for a Phase II bond release to occur, the Federal regulations neither specify an amount of bond to be released upon Phase II nor do they proscribe a time period for the determination that revegetation has been established for the purpose of Phase II bond release. Rather, the Federal regulations give the regulatory authority discretion to determine what amount of bonding is adequate to complete all required reclamation and to determine when successful revegetation has been established. See 30 CFR 800.40(c)(2); see also 48 FR 32932, 32953 (July 19, 1983) (removing a 25 percent Phase II maximum bond release from the Federal regulations at 30 CFR 800.40(c)(2)). As we note in our findings above about revision to CSR 9.3.d, the two-year requirement was more stringent than the Federal requirements, which contain no direct counterpart. The remaining provisions direct the standards of revegetation and obligate WVDEP to inspect and determine whether those standards are met. Therefore, we approve of those revisions because they are no less effective than the Federal regulations. We also approve of the renumbering of subparagraphs in CSR 38-2-12.2.c.2. We note separately that West Virginia has also proposed to remove the 25 percent Phase II maximum bond release from its statutes at W.Va. Code 22-3-23(c)(1)(B). We have not yet acted on that program amendment, docketed at WV-125-FOR and published as proposed in the April 8, 2019, Federal Register (84 FR 13853), but that has no effect on our approval of the instant revision deleting that requirement from the regulations.

In its proposed revision of CSR 38-2-12.2.c.3, West Virginia proposes to adopt some of the language from the Federal requirements pertaining to the conditions necessary before the release of all or part of a Phase III bond while excluding the requirement that “all surface coal mining and reclamation activities” be successfully completed. Instead, West Virginia proposes only that “successful reclamation activities” be completed as a condition precedent to any Phase III bond release. However, W.Va. Code 22-3-23, both before and after the revisions West Virginia proposes under WV-125-FOR, contains the full language “all surface coal mining and reclamation activities.” Despite the omission of “surface coal mining” in West Virginia's proposed regulation, its statutory inclusion of “all surface coal mining and reclamation activities” will control how West Virginia implements the regulation. Therefore, we are approving the proposed change because it is not less effective than the Federal regulations.

c. CSR 38-2-12.2.d. —West Virginia proposes to eliminate the existing prohibition on bond release for any site-specific bonding ( i.e., open-acre bonding) until all coal extraction is completed and the disturbed area is completely backfilled and regraded.

OSMRE Findings: As noted in our finding 4.b. above, having previously found that these restrictions were necessary as part of the alternative bonding system, absent there being any rationale or alternative measures provided demonstrating why this provision is no longer necessary, we do not approve the removal of existing CSR 38-2-12.2.d, and the existing language is retained.

d. CSR 38-2-12.2.e. —West Virginia proposes to restructure and revise existing approved language in this section and move it to 38-2-12.2.a.4.

OSMRE Findings: As is set forth above in our finding 4.a., the proposed revisions to this language are not approved, and, therefore, the existing language in CSR 38-2-12.2.e is retained.

e. CSR 38-2-12.2.f. —West Virginia proposes to move, unchanged, this existing language to CSR 38-2-12.2.d. as a result of other proposed revisions.

OSMRE Findings: As is set forth above in this document, we did not approve the proposed revisions to CSR 38-2-12.2.d, which affected the renumbering of this provision; thus, we are also not approving the proposed movement of this language to CSR 38-2-12.2.d. The existing language in CSR 38-2-12.2.f is retained.

f. CSR 38-2-12.2.g. —West Virginia proposes to move, unchanged, this existing language to CSR 38-2-12.2.f as a result of other proposed revisions. West Virginia also proposes to include a new provision for CSR 38-2-12.2.g, anticipating the aforementioned move, outlining the Secretary's authority to conduct a hearing on objections.

OSMRE Findings: As is set forth above in this document, we did not approve the proposed revisions, which affected the renumbering of this existing provision. Therefore, we are not approving the proposed movement of existing language to CSR 38-2-12.2.f, and the existing language in CSR 38-2-12.2.g is retained. We are, however, approving West Virginia's additional language outlining the Secretary's authority in conducting a hearing on objections to bond release, which mirrors the Federal counterpart at 30 CFR 800.40(g). We also approve of an editorial correction that is necessary to correct the now changed reference from “12.2.f” to “12.2.g” or “this paragraph”.

g. CSR 38-2-12.2.h. —Without change to the existing language, West Virginia proposes to both renumber existing CSR 38-2-12.2.h to 12.2.i and to insert it as a new CSR 38-2-12.2.h.

OSMRE Findings: As is set forth above in this document, we did not approve the proposed revisions, which affected the renumbering of this existing provision. Therefore, the proposed renumbering of this section to CSR 38-2-12.2.i is not necessary and would result in duplicative sections, and we are not approving these revisions. The existing language in CSR 38-2-12.2.h is retained.

h. CSR 38-2-12.4.a.2.B.— In its section dealing with the forfeiture of bonds, West Virginia proposes to add and delete language in this section to make it substantively identical to the Federal regulations found at 30 CFR 800.50. West Virginia is proposing to revise CSR 38-2-12.4.a.2.B to include a specific reference to the exception that allows the Secretary to approve partial surety liability release.

OSMRE Findings: The inclusion of the reference to the exception mirrors the Federal regulations at 30 CFR 800.50(a)(2)(ii). The additional reference and rephrasing do not render the proposal less effective than the Federal regulations, and we therefore approve these revisions.

i. CSR 38-2-12.4.b. —In this section, West Virginia is proposing to revise and eliminate specific references to the purposes that bond proceeds should be used for upon forfeiture, including rules governing water quality. In revised CSR 38-2-12.4.b.1 and 12.4.b.2, West Virginia incorporates and adopts language mirroring 30 CFR 800.50(b)(1) and (2), which identifies the steps to be undertaken upon forfeiture and the authorized use of those funds for completing the reclamation plan, or portion thereof, on the permit area or increment to which the bond coverage applies.

OSMRE Findings: In CSR 38-2-12.4.b, 4.b.1, and 4.b.2, West Virginia proposes to incorporate and adopt language mirroring that of the Federal regulations. While the inclusion of references to specific provisions pertaining to water quality have been removed in the revision of this subsection to mirror the Federal counterparts, the obligations of the West Virginia program to require adequate financial assurance for the treatment of pollution discharges and to use those funds upon forfeiture to complete the reclamation plan, as that requirement is set forth in W.Va. Code 22-3-10, including requirements related to water quality, have not been altered or removed. We are approving these provisions because the requirements to satisfy obligations related to water quality remain in place.

j. CSR 38-2-12.4.c. —In this section, West Virginia revises existing language to incorporate and adopt language identical to 30 CFR 800.50(c) further identifying measures the Secretary of WVDEP may take upon forfeiture. The revision eliminates an existing 180-day window for initiating operations to reclaim the site in accordance with the approved reclamation plan or modification thereof. The revised provision also removes the specific inclusion of taking the most effective actions possible to remediate acid mine drainage from the site, including chemical treatment where appropriate, with the resources available.

OSMRE Findings: In CSR 38-2-12.4.c, the proposed revision mirrors the Federal regulations, which do not include a specific time frame for initiating reclamation operations or a specific reference to actions related to the treatment of acid mine drainage. However, West Virginia uses an approved alternative bond system that is designed to achieve the objectives and purposes of section 509 of SMCRA as implemented by 30 CFR 800.11(e)(1). As noted previously, West Virginia's Special Reclamation Fund has been the subject of amendments, some required by us, imposed to address inadequacies of the system, to eliminate the deficit in the State's alternative bonding system, to ensure that sufficient money will be available to complete reclamation, including the treatment of polluted water discharged from all bond forfeiture sites, and to specify that moneys from the Special Reclamation Fund must be used, where needed, to pay for water treatment on bond forfeiture sites. These amendments were approved, and required amendments removed, in part, based upon the revisions made to W.Va. Code 22-3-11 and this section of the regulations. See, e.g., 60 FR 51900 (Oct. 4, 1995); 66 FR 67446 (Dec. 28, 2001); and 67 FR 37610 (May 29, 2002).

Section 509(c) of SMCRA and 30 CFR 800.11(e) both imply that the funds held for reclamation must be readily available. Specifically, 30 CFR 800.11(e)(1) specifies that an alternative bonding system must ensure that “the regulatory authority will have sufficient money to complete the reclamation plan for any areas which may be in default at any time.” Through our past approvals, we have expressed reservations about the notion of prioritizing bond forfeited sites insofar as it could imply deviating from the requirements of 30 CFR 800.11(e)(1). However, relying upon the State's regulations at CSR 38-2-12.4(c), which provide that reclamation operations must be initiated within 180 days following final forfeiture notice, we found assurance that the requirement that all sites for which bonds are posted be reclaimed in accordance with their reclamation plans and that all sites for which bonds were posted be properly and timely reclaimed would be fulfilled. See 60 FR 51900, 51901 (Oct. 4, 1995) and 67 FR 37610, 37616 (May 29, 2002). The removal of this timing provision would nullify previous corrections to the program and would render the program less effective than the bond forfeiture provisions at section 509(a) of SMCRA and 30 CFR 800.50(b)(2), or the alternative bonding system criteria of 30 CFR 800.11(e). Therefore, we are not approving this revision, and the existing language at CSR 38-2-12.4.c is retained.

k. CSR 38-2-12.4.d —In this section, West Virginia revises existing language to incorporate and adopt language substantively similar to that of 30 CFR 800.50(d), identifying procedures to follow when the amount forfeited is insufficient to pay the full cost of reclamation. Specifically, West Virginia proposes to provide that the Secretary will make expenditures out of the Special Reclamation Fund to complete the reclamation of the bonded area and that the Secretary may recover all costs of reclamation in excess of the amount forfeited from the operator or permittee. The revision excludes the specific reference to the statement that the Secretary of WVDEP shall take the most effective actions possible to remediate acid mine drainage from the site, including chemical treatment where appropriate, with the resources available.

OSMRE Findings: The revised language incorporates and adopts language substantively similar to that of 30 CFR 800.50(d), modifying it to reflect West Virginia's use of an alternative bonding system, the Special Reclamation Fund. Although the revision of this subsection excludes the specific reference to the statement that the Secretary shall take the most effective actions possible to remediate acid mine drainage from the site, including chemical treatment where appropriate, with the resources available, the West Virginia Code 22-3-11(h)(2) contains such an instruction, and the obligations of the West Virginia program to timely reclaim forfeited sites, including remediating acid mine drainage, has not been altered or removed. Therefore, we approve this revision.

West Virginia proposes to delete subsection 12.5 of the West Virginia regulations, which directs WVDEP's collection, analysis, and reporting on sites where a bond has been forfeited including, in particular, data relating to the quality of water being discharged from forfeited sites. Subdivision 12.5.a requires the Secretary of WVDEP to establish an inventory of all sites for which bonds have been forfeited. The inventory is to include data relating to the quality of water being discharged from the sites. Subdivision 12.5.b requires a priority listing of these sites based upon the severity of the discharges, the quality of the receiving stream, effects on downstream water users, and other factors determined to affect the priority ranking. Subdivision 12.5.c provides that, until the legislature supplements or adjusts the special reclamation fund, the Secretary of WVDEP can selectively choose sites from the inventory for water quality enhancement projects. Subdivision 12.5.d provides that, in selecting sites for water improvement projects, the Secretary of WVDEP must consider relative benefits and costs of the projects. Subdivision 12.5.e requires the Secretary of WVDEP to submit to the legislature, on an annual basis, a detailed report and inventory of acid mine drainage from bond forfeiture sites.

OSMRE Findings: This provision was originally added to the West Virginia regulations in 1995 to implement W.Va. Code 22-3-11(g), which authorizes WVDEP's actions with respect to bond forfeitures. There is no companion Federal regulation because West Virginia uses an approved alternative bond system that is designed to achieve the objectives and purposes of section 509 of SMCRA as implemented by 30 CFR 800.11(e)(1). As noted previously, the Special Reclamation Fund has been the subject of various amendments, some required by us, imposed to address inadequacies of the system, to eliminate the deficit in the State's alternative bonding system, and to ensure that sufficient money will be available to complete reclamation. This obligation includes the treatment of polluted water discharged from all bond forfeiture sites and a requirement that moneys from the Special Reclamation Fund must be used, where needed, to pay for water treatment on bond forfeiture sites. These amendments were approved, and required amendments removed, in part, based upon the revisions made to W.Va. Code 22-3-11 and this section of the regulations. See, e.g., 60 FR 51900 (Oct. 4, 1995); 66 FR 67446 (Dec. 28, 2001); and 67 FR 37610 (May 29, 2002).

An important component of our approval of the required amendments was the fact that West Virginia had previously established, at W.Va. Code 22-1-17, the Special Reclamation Fund Advisory Council (Advisory Council) to oversee the State's alternative bonding system. One of the duties of the Advisory Council is to study the effectiveness, efficiency, and financial stability of the Special Reclamation Fund and the Special Reclamation Water Trust Fund. These funds are managed by the Office of Special Reclamation (OSR) under the Advisory Council. The OSR adjusts monies to pay for water treatment at bond forfeiture sites and ensures that the Fund is effectively used by approval of the Advisory Council. The Special Reclamation Fund is adjusted to pay for reclamation of forfeiture sites. The Secretary of WVDEP provides recommendations on how best to effectively ensure acid mine drainage is addressed in reports to the Legislature.

Another duty of the Advisory Council, as provided by W.Va. Code 22-1-17(f)(5), is to contract with a qualified actuary on a regular basis to determine the Fund's fiscal soundness and to conduct annual informal reviews of the Special Reclamation Fund. The actuarial studies and the annual informal financial reviews of the Special Reclamation Fund assist WVDEP and the State in ensuring that sufficient money will be available to complete land reclamation and water treatment at existing and future bond forfeiture sites within the State, a requirement that parallels the criterion for approval of a State's alternative bonding system under 30 CFR 800.11(e)(1).

A necessary component of the ability to conduct these studies, and to fulfill the requirements of the alternative bond system itself, is the compilation of data as is directed under existing CSR 38-2-12.5.a. Removing the requirement to maintain an inventory would impede successful analysis as is required under the West Virginia Code and implementing regulations and would thwart the efforts put in place to address the required amendments. Therefore, removal would render the program less effective than the Federal requirements, and we do not approve of its removal. The existing language of CSR 38-2-12.5.a is retained.

Section 509(c) of SMCRA and 30 CFR 800.11(e) are silent on the question of prioritizing bond forfeited sites for reclamation, but both imply that the funds held for reclamation must be readily available. Specifically, 30 CFR 800.11(e)(1) specifies that an alternative bonding system must ensure that “the regulatory authority will have sufficient money to complete the reclamation plan for any areas which may be in default at any time.” Through our past approvals, we have expressed reservations about the notion of prioritization insofar as it could imply deviating from the requirements of 30 CFR 800.11(e)(1). However, because the State's regulations at CSR 38-2-12.4.c provide that reclamation operations must be initiated within 180 days following final forfeiture notice, a planning process for selection and prioritization of sites to be reclaimed was determined to not adversely impact the requirement that all sites for which bonds are posted be reclaimed in accordance with their reclamation plans, and that all sites for which bonds were posted be properly and timely reclaimed. Therefore, the removal of the prioritization language proposed in CSR 38-2-12.5.b; 38-2-12.5.c; and 38-2-12.5.d is consistent with the bond forfeiture provisions at section 509(a) of SMCRA and 30 CFR 800.50(b)(2), or the alternative bonding system criteria of 30 CFR 800.11(e), and we approve of its removal. See also 60 FR 51901 (Oct. 4, 1995).

As addressed above in our disapproval in CSR 38-2-12.5.a, a necessary component of the ability to fulfill the requirements of the alternative bond system is the compilation, review, and reporting of relevant data on a regular basis. West Virginia Code requires no less. See W.Va. Code 22-3-11 and 22-1-17. The specifics of the report as directed in existing CSR 38-2-12.5.e provide implementing details consistent with the requirements established in the West Virginia Code. Removing the minimum details to be contained in the report and inventory would impede successful analysis as is required under the West Virginia Code and implementing regulations and would thwart the efforts put in place to address the previous required amendments. Removal, without any indication of replacement, would render the program less effective than the Federal requirements, and we do not approve of its removal. The existing language of CSR 38-2-12.5.e is retained and may be renumbered accordingly in response to the approved removals in this section.

38-2-14.5.b—Effluent Limitations —West Virginia proposes to revise language in this subdivision to make it identical to the Federal regulations found at 30 CFR 816.42. West Virginia removes a reference to “the standards set forth in [National Pollutant Discharge Elimination System (NPDES)] permits” and the authorizing statutes for those permits, replacing these references with the requirement to be in compliance with all applicable State and Federal water quality laws and regulations, including effluent limitations for coal mining promulgated by the U.S. Environmental Protection Agency.

OSMRE Findings: The revised language mirrors the counterpart Federal provision. By mirroring the Federal provision, the revised subdivision becomes more comprehensive in scope, incorporating the NPDES standards despite removing the specific reference. Therefore, revised subdivision 14.5.b is no less effective than the Federal counterpart regulation at 30 CFR 816.42, and we approve the revision.

We asked for public comments on the WV-118 amendment in the proposed rule notice published in the November 2, 2011, Federal Register (76 FR 67637). We did not receive any comments.

We asked for public comments on the WV-126 amendment in the proposed rule notice published in the February 14, 2020, Federal Register (85 FR 8497). We received one comment. This comment is summarized and addressed below.

The commenter stated that they live in the southern part of West Virginia and rely on the legal advertisements in their local newspaper for the opportunity to participate in the permitting process on surface mining operations near their local residence. The commenter noted that not all citizens residing in West Virginia have the ways or means to access internet services and that to a person on a fixed income buying a local newspaper is less costly than obtaining internet service. They believe that by not advertising in the local newspaper people will be at a disadvantage to participate in the permitting process.

OSMRE Response: We are disapproving revisions to W.Va. Code 22-3-9 and 22-3-20 based on the fact that the proposed amendment is less stringent than sections 507(b)(6) and 513 of SMCRA (30 U.S.C. 1257(b)(6) and 1263) and less effective than the Federal regulation at 30 CFR 773.6, which specifically requires that permit applications, significant revisions, or renewal of a permit shall be announced in an advertisement in a local newspaper of general circulation in the locality of the mining and reclamation operation at least once a week for four consecutive weeks.

On March 5, 2020, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in West Virginia amendment WV-126 (Administrative Record No. WV-1634). We did not receive any comments.

On September 22, 2011, we requested comments on the amendment from various Federal agencies with an actual or potential interest in West Virginia amendment WV-118 (Administrative Record No. WV-1570). We did not receive any comments.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendments that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). The only change related to water standards is to change WVDEP's regulation to mirror the Federal regulation, which has already received concurrence from EPA. Therefore, we did not ask EPA to concur on the amendment.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On March 5, 2020, we requested comments on West Virginia amendment WV-126 (Administrative Record No.WV-1634). We did not receive comments from the SHPO or ACHP.

On September 22, 2011, we requested comments on the West Virginia amendment WV-118 (Administrative Record Numbers WV-1570). We did not receive comments from the SHPO or ACHP.

Based on the above findings:

1. We are approving in part the amendment (WV-126) that West Virginia sent to us on May 2, 2018 (Administrative Record No. WV-1613-A and WV-1613-B).

2. We are not approving revisions to W.Va. Code 22-3-9 and 22-3-20 because the proposed revisions render the West Virginia program less stringent than sections 507(b)(6) and 513 of SMCRA (30 U.S.C. 1257(b)(6) and 1263) and less effective than the corresponding Federal regulation at 30 CFR 773.6, which require that permit applications, significant revisions, or renewal of a permit must be announced in an advertisement in a local newspaper of general circulation in the locality of the mining and reclamation operation at least once a week for four consecutive weeks.

3. We are not approving CSR 38-2-12.2.d, .e, .f, .g and .h, the elimination of the existing prohibition on bond release for any site specific bonding ( i.e., open-acre bonding) until all coal extraction is completed and the disturbed area is completely backfilled and regraded because these restrictions were necessary as part of the alternative bonding system, absent there being any rationale or alternative measures provided demonstrating why this provision is no longer necessary. We are also not approving CSR 38-2-12.4.c, which would eliminate an existing 180-day window for initiating reclamation operations to reclaim a site in accordance with the approved reclamation plan or modification thereof. The removal of this timing provision would nullify previous corrections to the program and would render the West Virginia program less effective than the bond forfeiture provisions at section 509(a) of SMCRA and 30 CFR 800.50(b)(2), or the alternative bonding system criteria of 30 CFR 800.11(e). In addition, we are not approving proposed changes to CSR 38-2-12.5, which includes the deletion of subsection 12.5 of the West Virginia regulations that directs WVDEP's collection, analysis, and reporting on sites where bond has been forfeited, including, in particular, data relating to the quality of water being discharged from forfeited sites. Removal, without any indication of replacement, would render the West Virginia program less effective than the Federal requirements.

4. We are approving the changes to CSR 38-2-11.3.f (WV-118) sent to us on April 25, 2011 (Administrative Record Number WV-1561), pertaining to financial assurance requirements (trust funds).

To implement this decision, we are amending the Federal regulations at 30 CFR part 948 that codify decisions concerning the West Virginia program. In accordance with the Administrative Procedure Act, this rule will take effect 30 days after the date of publication.

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

Executive Order 12866, as amended by Executive Order 14094, provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance, dated October 12, 1993, the approval of State program amendments is exempted from OMB review under Executive Order 12866, as amended by Executive Order 14094. Executive Order 13563, which reaffirms and supplements Executive Order 12866, retains this exemption.

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

This rule has potential Federalism implications as defined under section 1(a) of Executive Order 13132. Executive Order 13132 directs agencies to “grant the States the maximum administrative discretion possible” with respect to Federal statutes and regulations administered by the States. West Virginia, through its approved regulatory program, implements and administers SMCRA and its implementing regulations at the State level. This rule approves, in part, an amendment to the West Virginia program submitted and drafted by the State and disapproves elements of the amendment only to the extent necessary to ensure that the State program is “in accordance with” the requirements of SMCRA and “consistent with” the regulations issued by the Secretary pursuant to SMCRA. Therefore, this rule is consistent with the direction to provide maximum administrative discretion to States.

The Department of the Interior strives to strengthen its government-to-government relationship with Tribes through a commitment to consultation with Tribes and recognition of their right to self-governance and Tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on the distribution of power and responsibilities between the Federal Government and Tribes. The basis for this determination is that our decision on the West Virginia program does not include Indian lands, as defined by SMCRA, or regulation of activities on Indian lands. Indian lands are regulated independently under the applicable approved Federal program. The Department's consultation policy also acknowledges that our rules may have Tribal implications where the State proposing the amendment encompasses ancestral lands in areas with mineable coal. We are currently working to identify and engage appropriate Tribal stakeholders to devise a constructive approach for consulting on these amendments.

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

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

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

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

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

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

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

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

For the reasons stated in the preamble, the Office of Surface Mining Reclamation and Enforcement amends 30 CFR part 948 as set forth below:

This document corrects terms in the Final Regulations section of the final rule and order document published in the Federal Register on December 30, 2022 (87 FR 80448).

On January 10, 2023, Spotify USA Inc., Amazon.com Services LLC, Google LLC, Pandora Media, LLC, and Apple Inc. (collectively, the “Movants”) filed a motion requesting that the Copyright Royalty Judges (Judges) issue amendments to their Determination of Royalty Rates and Terms for Making and Distributing Phonorecords, 87 FR 80448 (Dec. 30, 2022) ( Phonorecords IV Determination). Motion to Request Issuance of Amendment to Determination . . . (Motion). The relevant regulations for which amendments are sought are the result of a settlement in the Phonorecords IV proceeding. The Movants noted that National Music Publishers' Association, Inc., and the Nashville Songwriters Association International, who were participants in the Phonorecords IV proceeding, consent to the requested relief. Motion at 1. No participant in the Phonorecords IV proceeding opposed the Motion.

The Movants stated that 37 CFR 385.3 currently provides that late fees should accrue from the date payment is due until payment is received by the Copyright Owner. However, the Movants stated that the language thus does not acknowledge that the Mechanical Licensing Collective has responsibility for collecting payment under the blanket license for digital uses (though payment remains owed to Copyright Owners for non-blanket license uses). The Movants therefore proposed amendments to 37 CFR 385.3 (reflected below) that would clarify that, where payment is due to the Mechanical Licensing Collective under 17 U.S.C. 115(d)(4)(A)(i), late fees shall accrue from the due date until the Mechanical Licensing Collective receives payment. Id. at 1-2.

The Movants also requested that certain capitalization be employed where three defined terms are used in 37 CFR 385.2(d). Id. at 2.

The Movants asserted that the amendments are proper because they correct technical errors or modify terms (not rates) of royalty payments that might otherwise frustrate the proper implementation of the Phonorecords IV Determination. Id. at 1, citing 17 U.S.C. 803(c)(4).

Section 803(c)(4) of the Copyright Act authorizes the Judges to issue amendments to a written determination to correct any technical or clerical errors in the determination or to modify the terms, but not the rates, of royalty payments in response to unforeseen circumstances that would frustrate the proper implementation of such determination. The Judges find good cause to adopt the modified language and find that the requested amendments are sufficiently technical in nature and therefore adopt the amendments pursuant to the Judges' authority under section 803(c)(4) of the Copyright Act.

With regard to the requested amendments to 37 CFR 385.3, the Judges separately find that the requested modifications to the terms but not the rates of royalty payments are in response to unforeseen circumstances that would frustrate the proper implementation of the Phonorecords IV Determination. The passage of the Music Modernization Act and the resulting establishment of the Mechanical Licensing Collective is a relatively recent development. The Judges find that these developments, although in existence at the time of the Phonorecords IV Determination, were unforeseen by the Settling Parties as they arrived upon and submitted the settlement in Phonorecords IV. 1 Furthermore, the Judges find that the amendments fulfill the intention of the Phonorecords IV Determination to fully recognize the role of the Mechanical Licensing Collective, and of the Settling Parties, to apply late fees where payment is due to the Mechanical Licensing Collective.

Accordingly, 37 CFR part 385 is corrected by making the following correcting amendments:

The IPHC has recommended regulations that would govern the Pacific halibut fishery in 2024, pursuant to the Convention between Canada and the United States for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Convention), signed at Ottawa, Ontario, on March 2, 1953, as amended by a Protocol Amending the Convention (signed at Washington, DC, on March 29, 1979).

As provided by the Northern Pacific Halibut Act of 1982 (Halibut Act), the Secretary of State, with the concurrence of the Secretary of Commerce, may accept or reject, on behalf of the United States, regulations recommended by the IPHC in accordance with the Convention. 16 U.S.C. 773b. The Secretary of State, with the concurrence of the Secretary of Commerce, accepted the 2024 IPHC regulations on March 9, 2024 thereby making them effective.

The Halibut Act provides the Secretary of Commerce with the authority and general responsibility to carry out the requirements of the Convention and the Halibut Act. The PFMC and NPFMC may develop, and the Secretary of Commerce may implement, regulations governing harvesting privileges among U.S. fishermen in U.S. waters that are in addition to, and not in conflict with, approved IPHC regulations. The NPFMC has exercised this authority in developing halibut management programs for three fisheries that harvest halibut off Alaska: the subsistence, sport, and commercial fisheries. The PFMC has exercised this authority by developing a catch sharing plan governing the allocation of halibut and management of sport and commercial halibut fisheries on the U.S. West Coast.

The IPHC apportions catch limits for the Pacific halibut fishery among regulatory areas (Figure 1): Area 2A (Oregon, Washington, and California), Area 2B (British Columbia), Area 2C (Southeast Alaska), Area 3A (Central Gulf of Alaska), Area 3B (Western Gulf of Alaska), and Area 4 (which is further divided into 5 areas, 4A through 4E, in the Bering Sea and Aleutian Islands of Western Alaska).

Subsistence and sport halibut fishery regulations for Alaska, and tribal, sport, and directed commercial halibut fishery regulations for Area 2A, are codified at 50 CFR part 300. Commercial halibut fisheries off Alaska are subject to regulations resulting from the Individual Fishing Quota (IFQ) Program, the Community Development Quota (CDQ) Program (50 CFR part 679), and the area-specific catch sharing plans for Areas 2C, 3A, and Areas 4C, 4D, and 4E, respectively.

The NPFMC implemented a catch sharing plan among commercial IFQ and CDQ halibut fisheries in IPHC Regulatory Areas 4C, 4D, and 4E (Area 4, Western Alaska) through rulemaking, and the Secretary of Commerce approved the plan on March 20, 1996 (61 FR 11337). The Area 4 catch sharing plan regulations are codified at 50 CFR 300.65. New annual regulations pertaining to the Area 4 catch sharing plan also may be implemented through IPHC action, subject to acceptance by the Secretary of State, with the concurrence of the Secretary of Commerce.

The NPFMC recommended and NMFS implemented through rulemaking a catch sharing plan for commercial IFQ and guided sport (charter) halibut fisheries in IPHC Regulatory Areas 2C and 3A on January 13, 2014 (78 FR 75844, December 12, 2013). The Area 2C and 3A catch sharing plan regulations are codified at 50 CFR 300.65. The catch sharing plan defines an annual process for allocating halibut between the commercial and charter fisheries so that each sector's allocation varies in proportion to halibut abundance, specifies a public process for setting annual management measures, and authorizes limited annual leases of commercial IFQ for use in the charter fishery as guided angler fish (GAF).

The IPHC held its annual meeting in Anchorage, Alaska, from January 22 through 26, 2024, and recommended a number of changes to the previous IPHC regulations (88 FR 14066, March 7, 2023). On March 9, 2024, the Secretary of State, with the concurrence of the Secretary of Commerce, accepted the annual management measures, including the following changes to Section 5, Section 6, Section 9, Section 27, Section 28, and other Sections of the 2024 IPHC regulations:

1. New halibut catch limits in all regulatory areas. The catch limits are presented in two tables in Section 5. They distinguish between limits resulting from Commission decisions and limits that result from domestic catch sharing plans that have been developed by the respective United States and Canada Governments;

2. The addition of a footnote to the fishery limit table in Section 5, and a new paragraph in Section 6. The footnote and the new paragraph each reference the Area 2A Pacific halibut catch sharing plan, to clarify that the plan includes provisions for in-season reallocations of Pacific halibut recreational fishery catch limits;

3. New commercial fishery season dates and start time in Section 9;

4. New management measures in Section 28 for Area 2C and Area 3A guided sport fisheries;

5. Updates to fishery log requirements for commercial fisheries in Section 19; and

6. Minor technical corrections to improve consistency and clarity throughout the IPHC regulations.

Pursuant to regulations at 50 CFR 300.62, the 2024 IPHC annual management measures are published in the Federal Register in this action to provide notice of their regulatory effectiveness and to inform persons subject to the regulations of their restrictions and requirements. Because the regulations published in this action are applicable to the entire Convention area, these regulations include some provisions relating to and affecting Canadian fishing and fisheries. In separate actions, NMFS may implement more restrictive regulations for the U.S. halibut fishery or components of it; therefore, anglers are advised to check the current Federal and IPHC regulations prior to fishing.

The IPHC recommended to the governments of Canada and the United States fishery catch limits for 2024 totaling 28,860,000 pounds (lb) (13,091 metric tons (mt)). The IPHC refers to catch limits as Fishery Constant Exploitation Yield (FCEY), which are derived from Total Constant Exploitation Yield (TCEY) by directed fisheries that are specified in the IPHC regulations and are subject to area-specific catch agreements among the domestic parties. Coastwide, the 2024 FCEY decreased 3.3 percent from the FCEY implemented in 2023. Except for Area 2C, which increased by 1.4 percent, the FCEY in each regulatory area decreased relative to the 2023 catch limit. A description of the process the IPHC used to set these catch limits follows.

For the upcoming 2024 halibut fishing year, the IPHC conducted its annual stock assessment using a range of updated data sources as described in detail in the IPHC overview of data sources for the Pacific halibut stock assessment, harvest policy, and related analyses (IPHC-2024-AM100-10; available at https://www.iphc.int ). To evaluate the Pacific halibut stock, the IPHC uses an “ensemble” of 4 equally weighted models: 2 long time-series models incorporating data from 1888 to the present and 2 short time-series models incorporating data from 1992 to the present. For each time-series, the two models include data that are either divided by four geographical regions or aggregated into coastwide summaries. These models incorporate data through 2023 from the IPHC Fishery Independent Setline Survey (FISS); the commercial halibut fishery; the NMFS Eastern Bering Sea trawl survey; length and weight-at-age and male/female sex ratio estimates by region in the directed commercial fisheries and in the FISS; and age distribution information for bycatch, sport, and sublegal discard removals.

The results of the ensemble models are integrated and incorporate uncertainty in natural mortality rates, environmental effects on recruitment, and other structural and parameter categories, consistent with practices in place since 2012. The data and assessment models used by the IPHC are reviewed by the IPHC's Scientific Review Board, comprised of non-IPHC scientists who provide an independent scientific review of the data and stock assessment to provide recommendations to IPHC staff and the Commissioners. The Scientific Review Board did not identify any substantive errors in the data or methods used in the 2023 stock assessment. NMFS believes the IPHC's data and assessments models constitute the best available science on the status of the Pacific halibut resource.

The IPHC's data, including the FISS, indicate that the Pacific halibut stock declined continuously from the late 1990s to around 2012, largely as a result of decreasing size at a given age (size-at-age), higher harvest rates in the early 2000s, and weaker recruitment than observed during the 1980s. From about 2013 to 2016, there was a slight increasing trend in the spawning biomass, followed by a slight decline continuing into the current assessment, where the spawning biomass appears to have stabilized. Overall, the spawning biomass is estimated to be approximately 174,000,000 lb (78,925 mt) at the beginning of 2024. The spawning biomass is currently estimated to be at 42 percent of its unfished state, near the lowest level observed since the 1970s. This estimate reflects updated calculations recommended during stock assessment external review and review by the Scientific Review Board, as well as developments in the IPHC Management Strategy Evaluation.

The IPHC accounts for the total mortality of halibut from all sources, and employs a management procedure that establishes a coastwide reference level of fishing intensity so that the Spawning Potential Ratio (SPR) is equal to 43 percent. The reference fishing intensity of F43 percent SPR ( i.e., F value) would allow a level of fishing intensity that is expected to result in approximately 43 percent of the spawning biomass per recruit compared to an unfished stock ( i.e., no fishing mortality). Lower F percentages would be expected to result in higher fishing intensity.

The IPHC harvest decision table (Table 3 in IPHC-2024-AM100-12; available at https://www.iphc.int ) provides a comparison of the relative risk of a decrease in stock biomass, stock status, or fishery metrics for a range of fishing intensities for 2024. The harvest decision table employs two metrics of fishing mortality: (1) the TCEY, which includes harvests and incidental discard mortality from directed commercial fisheries; mortality estimates from sport, subsistence, and personal use; and estimates of non-directed discard mortality of halibut over 26 inches (66.0 centimeters (cm)) (O26); and (2) Total Mortality, which includes all the above sources of mortality, plus estimates of non-directed discard mortality of halibut less than 26 inches (66.0 cm) (U26). Although U26 halibut mortality is factored into the stock assessment and harvest strategy calculations, there is currently no reliable tool for describing the annual coastwide distribution of U26 halibut.

For 2024, the IPHC adopted a TCEY totaling 35,280,000 lb (16,003 mt) coastwide. This corresponds to a fishing intensity of approximately F52 percent, which is more conservative than the F43 percent reference level of fishing intensity used to establish TCEYs in years prior to 2023. The 2024 TCEY is 1,690,000 lb (767 mt), or 4.6 percent, less than the TCEY adopted in 2023.

In making its recommendation, the IPHC considered likely stock status and uncertainties, as well as the significant social and economic impacts of catch limits among areas. The IPHC noted in 2023 that a recent change in the treatment of the natural mortality rate, from the previously assumed value of 0.15 to an estimated value of to 0.21 in the short regional model, and its effect on the full ensemble, resulted in more optimistic projections due to the increase in the estimated productivity of the stock. The IPHC noted that despite the positive outlook for the long-term status of the stock, the near term fishery will rely heavily on a single year class (2012), and also noted that the FISS and commercial fishery catch rates have been very low for two consecutive years and are currently at the lowest rates observed in 30 years.

At a coastwide TCEY of 35,280,000 lb (16,003 mt), the IPHC considered the probability that the spawning biomass will decrease from 2025 to 2027 relative to 2024. Specifically, the IPHC estimated a 40 percent probability of stock decline through 2024, and the same 40 percent probability of stock decline through 2026. The IPHC noted that if the recent reference level of fishing intensity were adopted, the probability of a spawning biomass decline was 74 percent by 2024 and 72 percent by 2026. The factors that the IPHC considered in making their TCEY recommendations are described in the 2024 Annual Meeting Report (IPHC-2024-AM100-R; available at https://www.iphc.int ), and the key recommendations are briefly summarized here.

This final rule does not establish the combined commercial and recreational catch limit for Area 2B (British Columbia), which is subject to rulemaking by the Canada and British Columbia Governments. However, the IPHC's recommendation for the Area 2B catch limit is directly related to the current and future U.S. catch limits established by this final rule and is therefore discussed herein. The IPHC recommended a 2024 TCEY of 6,470,000 (2,935 mt) for Area 2B, which equates to 18.3 percent of the total coastwide TCEY and is a 4.6 percent reduction from 2023. The IPHC made this recommendation after considering recent harvests in Area 2B, the equal 4.6 percent reduction recommended for the total U.S. areas, and similar factors associated with the stock conditions, commercial fishery and FISS performance, and stock assessment results described above in the 2024 Annual Meeting Report (IPHC-2024-AM100-R; available at https://www.iphc.int ).

The IPHC adopted an allocation to Area 2A that would provide a TCEY of 1,650,000 lb (748 mt) with a combined commercial, tribal, and recreational FCEY catch limit of 1,470,000 (667 mt). The IPHC noted that the United States Government recognizes its trust responsibility to the 13 treaty tribes in IPHC Regulatory Area 2A that depend upon Pacific halibut. As such, the U.S. Commissioners have consistently supported a TCEY of 1,650,000 lb for Regulatory Area 2A since 2019. This allocation reflects the needs of West Coast Pacific halibut users, with minimal impact on the larger Pacific halibut biomass that is distributed to the north, and it remains a small fraction of the IPHC Region 2 allocation. Stock assessment scientists at the IPHC have affirmed that under the current status of the Pacific halibut stock, a higher TCEY for Regulatory Area 2A than what may be indicated by the modeled stock distribution will not create a conservation concern.

After the allocations for Areas 2A and 2B are accounted for, the IPHC apportioned the remaining TCEY to the Alaska regulatory areas (Areas 2C through Area 4) after considering the distribution of harvestable biomass of halibut based on the FISS, as well as 2023 harvest rates, the recommendations from the IPHC's advisory bodies, public input, and social and economic factors. All Alaska areas decreased in TCEY relative to 2023 (see table 1). The largest decreases were in Areas 4B (−8.1 percent) and 4A (−6.9 percent), while Areas 2C, 3A, 3B, and 4CDE received decreases ranging from −1 to −6.0 percent, relative to 2023. The IPHC determined that the 2024 catch limit recommendations are consistent with its conservation objectives for the halibut stock and its management objectives for the halibut fisheries.

The IPHC also considered the catch sharing plan for Area 4CDE developed by the NPFMC in its TCEY recommendation. The Area 4CDE catch limit is determined by subtracting estimates of the Area 4CDE subsistence harvests, commercial discard mortality, and non-directed discard mortality of halibut over 26 inches (66.0 cm) from the area TCEY. When the resulting Area 4CDE catch limit is greater than 1,657,600 lb (752.87 mt), a direct allocation of 80,000 lb (36.29 mt) is made to Area 4E to provide CDQ fishermen in that area with additional harvesting opportunity. After this 80,000 lb (36.29 mt) allocation is deducted from the catch limit, the remainder is divided among Areas 4C, 4D, and 4E according to the percentages specified in the catch sharing plan. Those percentages are 46.43 percent each to 4C and 4D and 7.14 percent to 4E. For 2024, the IPHC recommended a catch limit for Area 4CDE of 2,060,000 (934 mt).

The IPHC considers advice from the IPHC's two advisory bodies, as well as direct testimony from the public, when selecting opening and closing dates and times for the commercial halibut fishery. The 2024 commercial halibut fishery opening date for all IPHC regulatory areas is March 15, 2024. The closing date for the commercial halibut fisheries in all IPHC regulatory areas is December 7, 2024. These commercial season dates are a slight change from the season dates adopted by the IPHC in 2023. The season opening of March 15 is similar to the mid-March opening common in the years prior to 2021, while the closing date of December 7 is consistent with the closing dates from 2021 through 2023, representing an extension of time beyond the mid-November closing common in the years prior to 2021. The extended season maintains harvesting and market flexibility that stakeholders have identified as important during the current period of uncertainty. The season dates allow for the anticipated time required to fully harvest the commercial halibut catch limits, seasonal holidays, and adequate time for IPHC staff to review the complete record of 2024 commercial catch data for use in the stock assessment process. The IPHC also considered the time required for the administrative tasks that are linked to halibut regulations developed independently by the domestic partners when establishing these season dates.

The IPHC also changed the time of day for opening the 2024 fishery from 12:00, which was in place in previous years, to 06:00 for 2024. This change was in response to recommendations from the IPHC advisory bodies, which noted that allowing a full day of fishing on March 15 facilitates access to markets and improves fishing efficiency and opportunity.

The NMFS West Coast Region published a proposed rule, with public comments accepted for 30 days, to approve the Pacific halibut catch sharing plan for Area 2A off Washington, Oregon, and California and implement annual management measures for the Area 2A sport fishery, as recommended by the PFMC in the catch sharing plan. These annual management measures include sport fishery subarea allocations and management measures that are not implemented through the IPHC. NMFS will address any comments received in a final rule.

NMFS West Coast Region will separately publish a proposed rule for annual management measures for the Area 2A non-tribal directed commercial fishery. Management measures will included vessel catch limits, as well as fishing periods that fall within the coastwide commercial season dates set forth in Section 9 of the IPHC regulations. Public comments will be accepted and NMFS will address any comments received in a final rule.

Once published, the proposed and final rules for Area 2A will be available on the NMFS West Coast Region's website at https://www.fisheries.noaa.gov/west-coast/commercial-fishing/pacific-halibut-fishing-west-coast and also at https://www.regulations.gov.

The IPHC added a footnote to Section 5 and a new paragraph to Section 6 of the 2024 IPHC regulations that allow for in-season transfer of sport fishery allocations. These clarifying modifications mirror changes to the Area 2A catch sharing plan adopted by the PFMC at their November 2023 meeting.

In 2014, NMFS implemented a catch sharing plan for Area 2C and Area 3A. The catch sharing plan defines an annual process for allocating halibut between the charter and commercial fisheries in Area 2C and Area 3A and establishes allocations for each fishery. Under the catch sharing plan, the IPHC adopted combined catch limits (CCL) for the commercial and charter halibut fisheries in Area 2C and Area 3A. Each CCL includes estimates of discard mortality for each fishery. The catch sharing plan was implemented to achieve the halibut fishery management goals of the NPFMC. More information is provided in the final rule implementing the catch sharing plan (78 FR 75844, December 12, 2013). Implementing regulations for the catch sharing plan are at 50 CFR 300.65. The Area 2C and Area 3A catch sharing plan allocations are located in tables 1 through 4 of subpart E of 50 CFR part 300. To allow additional flexibility for individual commercial and charter fishery participants, the catch sharing plan also authorizes annual transfers of commercial halibut IFQ as GAF to charter halibut permit holders for harvest in the charter fishery. Pacific halibut that are retained by charter vessel anglers as GAF are not subject to the annual charter halibut management measures specified in the 2024 IPHC regulations. Under the catch sharing plan regulations, charter vessel anglers may use GAF to harvest up to two halibut of any size per day. Complete GAF regulations for the catch sharing plan are at 50 CFR 300.65.

At its January 2024 meeting, the IPHC adopted a CCL of 4,420,000 (2,005 mt) for Area 2C. Following the catch sharing plan allocations in tables 1 and 3 of subpart E of 50 CFR part 300, the charter fishery is allocated 810,000 (367 mt) of the CCL, and the remainder of the CCL, 3,610,000 lb (1,637 mt), is allocated to the commercial fishery. Discard mortality in the amount of 110,000 lb (50 mt) was deducted from the commercial allocation to obtain the commercial catch limit of 3,500,000 lb (1,587 mt). The commercial allocation (including discard mortality) increased by 50,000 lb (23.7 mt), or 1.4 percent, from the 2023 allocation of 3,560,000 lb (1,615 mt). The 2023 Area 2C charter allocation of 810,000 lb (367 mt) is 10,000 lb (4.5 mt), or 1.2 percent more than the 2023 charter allocation of 800,000 lb (363 mt).

The IPHC adopted a CCL of 10,000,000 lb (4,536 mt) for Area 3A. Following the catch sharing plan allocations in tables 2 and 4 of subpart E of 50 CFR part 300, the charter fishery is allocated 1,890,000 lb (857 mt) of the CCL and the remainder of the CCL, 8,100,000 lb (3,674 mt), is allocated to the commercial fishery. Discard mortality in the amount of 540,000 lb (245 mt) was deducted from the commercial allocation to obtain the commercial catch limit of 7,560,000 lb (3,429 mt). The commercial allocation (including discard mortality) decreased by 320,000 lb (145 mt), or 3.5 percent, from the 2023 allocation of 8,420,000 lb (3,819 mt). The charter allocation remained equal to the 2023 allocation.

Guided sport (charter) halibut anglers are managed under different regulations than unguided recreational halibut anglers in Areas 2C and 3A in Alaska. According to Federal regulations at 50 CFR 300.61, a charter vessel angler means a person, paying or non-paying, receiving sport fishing guide services for halibut. Sport fishing guide services means assistance, for compensation or with the intent to receive compensation, to a person who is sport fishing, to take or attempt to take halibut by accompanying or physically directing the sport fisherman in sport fishing activities during any part of a charter vessel fishing trip. A charter vessel fishing trip is the time period between the first deployment of fishing gear into the water from a charter vessel by a charter vessel angler and the offloading of one or more charter vessel anglers or any halibut from that vessel. The regulations described below apply only to charter vessel anglers receiving sport fishing guide services during a charter vessel fishing trip for halibut in Area 2C or Area 3A. These regulations do not apply to unguided recreational anglers in any regulatory area in Alaska, nor to charter vessel anglers in areas other than Areas 2C and 3A.

To provide recommendations for annual management measures intended to limit charter harvest to the charter catch allocation, the NPFMC formed the Charter Halibut Management Committee (Committee) as a stakeholder advisory body. The Committee is composed of representatives from the charter fishing industry in Areas 2C and 3A who provide input on the preferred range of charter management measures each year. In October 2023, the Committee began their annual process by requesting analysis of management measures that would result in charter halibut removals within the range of expected allocations for each area. In addition, this annual analysis, which is prepared by the Alaska Department of Fish Game (ADFG), includes information about charter harvests in the prior year. The Analysis of Management Options for the Area 2C and 3A Charter Halibut Fisheries for 2024 (charter halibut analysis) is available at https://www.npfmc.org/.

After reviewing the charter halibut analysis, the Committee made conservative recommendations for preferred management measures to the NPFMC for 2024. These recommendations were intended to provide equitable harvest opportunity across charter business arrangements and maintain total charter harvests within the 2024 allocations for both Areas 2C and 3A. The NPFMC considered the charter halibut analysis, the recommendations of the Committee, and public testimony to develop its recommendation to the IPHC. The NPFMC has used this process to select and recommend annual management measures to the IPHC since 2012.

The IPHC recognizes the role of the NPFMC to develop policy and regulations that allocate the Pacific halibut resource among fishermen in and off Alaska and that NMFS has developed numerous regulations to support the NPFMC's goals of limiting the charter halibut harvest to the charter catch allocation. The IPHC's adopted recommendations are consistent with the recommendations of the NPFMC and the Committee. The IPHC determined that limiting charter harvests by implementing the management measures discussed below would meet conservation and allocation objectives.

For 2024 in Area 2C, the IPHC adopted the continuation of a one-fish daily bag limit that has been in effect each year for charter vessel anglers since the catch sharing plan was implemented in 2014. This bag limit is combined with day of the week closures that prohibit the retention of Pacific halibut by charter vessel anglers on all Fridays from July 19 to September 13, 2024, and size limits on all retained halibut. Size limits have proven effective in limiting the number and pounds of retained halibut.

For 2024, the size limits employ different reverse slot limits for two specific periods. From February 1 through July 14, a person on board a charter vessel (as referred to in 50 CFR 300.65) and fishing in Area 2C is prohibited from taking or possessing any halibut, with head on, that is greater than 40 inches (101.6 cm) and less than 80 inches (203.2 cm). From July 15 through December 31, the lower range of the slot limit is reduced from 40 inches (101.6 cm) to 36 inches (91.4 cm); the upper range of 80 inches (203.2 cm) remains the same. All charter halibut size limits referenced in this document are measured in a straight line from the tip of the lower jaw with mouth closed, passing over the pectoral fin, to the extreme end of the middle of the tail.

Although the 2024 Area 2C charter halibut allocation is 10,000 lb greater than the 2023 allocation, the above management measures are more restrictive than the measures implemented in 2023. To develop these measures, the Committee, the NPFMC, and IPHC considered the ADFG analysis that evaluated the performance of prior years' measures, as well as projections of halibut fishing effort for 2024. With the above management measures in place, the projected charter harvest is expected to meet the 810,000 lb. charter halibut allocation for Area 2C.

For 2024, the IPHC adopted the following management measures for Area 3A: 1) a two-fish daily bag limit that allows one fish of any size and a 28-inch (71.1 cm) maximum size limit for the other halibut; 2) a one-trip per day limit for charter halibut permits and charter vessels for the entire season; and 3) a prohibition on halibut retention by charter vessel anglers on all Wednesdays.

The Area 3A management measures for 2024 are less conservative than those imposed in 2023. The NPFMC and IPHC considered information on charter removals in 2023 and for previous years, the projections of charter harvest in 2024, and the 2024 charter allocation. With this information, the NPFMC and IPHC determined that less restrictive management measures in Area 3A, relative to the 2023 measures, were appropriate to limit charter removals to the 2024 charter allocation. The projected charter harvest for 2024 under the combination of recommended measures is 1,880,000 lb (852.8 mt), which is 10,000 lb (4.5 mt) and 0.5 percent below the charter allocation.

In addition to the daily bag and size limits noted above, the NPFMC recommended and the IPHC adopted a closure on charter vessel anglers retaining halibut on all Wednesdays. Retention of GAF halibut is allowed on charter vessels on Wednesdays, but all other halibut that are caught while fishing on a charter vessel on Wednesdays must be released. The day of week closures in Area 3A effectively decrease the charter halibut harvest to help stay within the allocation.

In Area 3A, charter halibut permits and charter vessels in 2024 are authorized for use to catch and retain halibut on one charter halibut fishing trip per day. If no halibut are retained during a charter vessel fishing trip, the charter halibut permit and charter vessel may be used to take an additional trip to catch and retain halibut that day. These regulations have been in place each year since 2016 and have proven effective in controlling halibut harvests.

For purposes of the trip limit in Area 3A in 2024, a charter vessel fishing trip will end when any angler or halibut is offloaded, or at the end of the calendar day, whichever comes first. A charter halibut permit or charter vessel may conduct overnight trips since charter vessel anglers may retain a bag limit of halibut on two calendar days. But a charter halibut permit or charter vessel cannot be used to begin another overnight trip until the day after the previous charter vessel fishing trip ends. As noted above, GAF are exempt from charter halibut management measures, including trip limits. Therefore, a charter halibut permit and a charter vessel may be used to harvest GAF on a second charter vessel fishing trip in a day, but only if exclusively GAF are harvested on that trip.

To reflect current and future conditions in the commercial halibut fisheries and to add clarity to the regulations that require the logging of these fishing activities, the IPHC adopted several changes to Section 19 of the IPHC regulations to:

(1) Align regulations between United States and Canada fisheries to clarify that logs not collected by the IPHC during the fishing season, or otherwise not made available to the IPHC, must be submitted to the agency within 30 days following the end of the season;

(2) Require that fishing locations and fishing activity be recorded using latitude and longitude for each day and set of gear. Formerly, the regulations allowed Pacific halibut operators to note their fishing location by naming a direction and distance from a point of land;

(3) Update the names and types of logbooks that are eligible for use to record fishing activity;

(4) Require that writing in the logs be clear and legible;

(5) Clarify that in Alaska, NMFS electronic groundfish logbooks may be used to record halibut harvests, provided the logbooks have been approved by NMFS; and

(6) Clarify that electronic IPHC logbooks may be used to record halibut harvests, provided the logbooks have been approved by the IPHC.

Both items (5) and (6) above address third-party electronic logbooks that may be developed and become available for use by Pacific halibut fishing vessel operators in the future. The addition of these paragraphs in section 19 ensures that NMFS and IPHC data collections are maintained and existing data-sharing agreements between the agencies are supported as new forms of logbooks become available.

The following annual management measures for the 2024 Pacific halibut fishery are those recommended by the IPHC and accepted by the Secretary of State, with the concurrence of the Secretary of Commerce.

These Regulations may be cited as the International Pacific Halibut Commission (IPHC) Fishery Regulations (2024).

(1) These Regulations apply to persons and vessels fishing for Pacific halibut in, or possessing Pacific halibut taken from, the maritime area as defined in Section 3.

(2) Sections 3 to 8 and 29 apply generally to all Pacific halibut fishing.

(3) Sections 9 to 22 apply to commercial fishing for Pacific halibut.

(4) Section 23 applies to Indigenous fisheries in British Columbia.

(5) Section 24 applies to customary and traditional fishing in Alaska.

(6) Sections 25 to 28 apply to recreational (also called sport) fishing for Pacific halibut.

(7) These Regulations do not apply to fishing operations authorized or conducted by the Commission for research purposes.

(1) In these Regulations,

(a) “authorized officer” means any State, Federal, or Provincial officer authorized to enforce these Regulations including, but not limited to, the National Marine Fisheries Service (NOAA Fisheries), Department of Fisheries and Oceans (DFO), Alaska Wildlife Troopers (AWT), United States Coast Guard (USCG), Washington Department of Fish and Wildlife (WDFW), the Oregon State Police (OSP), and California Department of Fish and Wildlife (CDFW);

(b) “authorized clearance personnel” means an authorized officer of the United States of America, an authorized representative of the Commission, or a designated fish processor;

(c) “authorized representative of the Commission” means any IPHC employee or contractor authorized to perform any task described in these Regulations.

(d) “charter vessel” outside of Alaska waters means a vessel used for hire in recreational (sport) fishing for Pacific halibut, but not including a vessel without a hired operator, and in Alaska waters means a vessel used while providing or receiving recreational (sport) fishing guide services for Pacific halibut;

(e) “commercial fishing” means fishing, the resulting catch of which is sold or bartered; or is intended to be sold or bartered, other than (i) recreational (sport) fishing; (ii) treaty Indian ceremonial and subsistence fishing as referred to in Section 23; (iii) Indigenous groups fishing in British Columbia as referred to in Section 24; and (iv) customary and traditional fishing as referred to in Section 25 and defined by and regulated pursuant to NOAA Fisheries regulations published at 50 CFR part 300;

(f) “Commission” or “IPHC” means the International Pacific Halibut Commission;

(g) “daily bag limit” means the maximum number of Pacific halibut a person may take in any calendar day from Convention waters;

(h) “fishing” means the taking, harvesting, or catching of fish, or any activity that can reasonably be expected to result in the taking, harvesting, or catching of fish, including specifically the deployment of any amount or component part of gear anywhere in the maritime area;

(i) “fishing period limit” means the maximum amount of Pacific halibut that may be retained and landed by a vessel during one fishing period;

(j) “land” or “offload” with respect to Pacific halibut, means the removal of Pacific halibut from the catching vessel;

(k) “permit” means a Pacific halibut fishing license issued by NOAA Fisheries;

(l) “maritime area,” in respect of the fisheries jurisdiction of a Contracting Party, includes without distinction areas within and seaward of the territorial sea and internal waters of that Party;

(m) “net weight” of a Pacific halibut means the weight of Pacific halibut that is without gills and entrails, head-off, washed, and without ice and slime. If a Pacific halibut is weighed with the head on or with ice and slime, the required conversion factors for calculating net weight are a 2 percent deduction for ice and slime and a 10 percent deduction for the head;

(n) “operator,” with respect to any vessel, means the owner and/or the master or other individual on board and in charge of that vessel;

(o) “overall length” of a vessel means the horizontal distance, rounded to the nearest foot, between the foremost part of the stem and the aftermost part of the stern (excluding bowsprits, rudders, outboard motor brackets, and similar fittings or attachments);

(p) “person” includes an individual, corporation, firm, or association;

(q) “regulatory area” means an IPHC Regulatory Area referred to in Section 4;

(r) “setline gear” means one or more stationary, buoyed, and anchored lines with hooks attached;

(s) “sport fishing” or “recreational fishing” means all fishing other than i) commercial fishing; ii) treaty Indian ceremonial and subsistence fishing as referred to in Section 23; iii) Indigenous groups fishing in British Columbia as referred to in Section 24; and iv) customary and traditional fishing as referred to in Section 25 and defined in and regulated pursuant to NOAA Fisheries regulations published in 50 CFR part 300;

(t) “tender” means any vessel that buys or obtains fish directly from a catching vessel and transports it to a port of landing or fish processor;

(u) “total constant exploitation yield (TCEY)” means the mortality comprised of Pacific halibut from directed fisheries and that from non-directed fisheries greater than 26 inches (66 cm) in length;

(v) “VMS transmitter” means a NOAA Fisheries-approved vessel monitoring system transmitter that automatically determines a vessel's position and transmits it to a NOAA Fisheries-approved communications service provider. 1

(2) In these Regulations, all bearings are true and all positions are determined by the most recent charts issued by the United States National Ocean Service or the Canadian Hydrographic Service.

The following areas within the IPHC Convention waters shall be defined as IPHC Regulatory Areas for the purposes of the Convention (see Figure 1 ):

(1) IPHC Regulatory Area 2A includes all waters off the states of California, Oregon, and Washington;

(2) IPHC Regulatory Area 2B includes all waters off British Columbia;

(3) IPHC Regulatory Area 2C includes all waters off Alaska that are east of a line running 340° true from Cape Spencer Light (58°11′56″ N latitude, 136°38′26″ W longitude) and south and east of a line running 205° true from said light;

(4) IPHC Regulatory Area 3A includes all waters between Area 2C and a line extending from the most northerly point on Cape Aklek (57°41′15″ N latitude, 155°35′00″ W longitude) to Cape Ikolik (57°17′17″ N latitude, 154°47′18″ W longitude), then along the Kodiak Island coastline to Cape Trinity (56°44′50″ N latitude, 154°08′44″ W longitude), then 140° true;

(5) IPHC Regulatory Area 3B includes all waters between Area 3A and a line extending 150° true from Cape Lutke (54°29′00″ N latitude, 164°20′00″ W longitude) and south of 54°49′00″ N latitude in Isanotski Strait;

(6) IPHC Regulatory Area 4A includes all waters in the Gulf of Alaska west of Area 3B and in the Bering Sea west of the closed area defined in Section 10 that are east of 172°00′00″ W longitude and south of 56°20′00″ N latitude;

(7) IPHC Regulatory Area 4B includes all waters in the Bering Sea and the Gulf of Alaska west of IPHC Regulatory Area 4A and south of 56°20′00″ N latitude;

(8) IPHC Regulatory Area 4C includes all waters in the Bering Sea north of IPHC Regulatory Area 4A and north of the closed area defined in Section 10 which are east of 171°00′00″ W longitude, south of 58°00′00″ N latitude, and west of 168°00′00″ W longitude;

(9) IPHC Regulatory Area 4D includes all waters in the Bering Sea north of IPHC Regulatory Areas 4A and 4B, north and west of IPHC Regulatory Area 4C, and west of 168°00′00″ W longitude; and

(10) IPHC Regulatory Area 4E includes all waters in the Bering Sea north and east of the closed area defined in Section 10, east of 168°00′00″ W longitude, and south of 65°34′00″ N latitude.

(1) The Commission has adopted the following distributed mortality (TCEY) limits:

(2) The fishery limits resulting from the IPHC-adopted distributed mortality (TCEY) limits and the existing Contracting Party catch sharing arrangements are as follows, recognizing that each Contracting Party may implement more restrictive limits:

(1) The Commission is authorized to establish or modify regulations during the season after determining that such action:

(a) will not result in exceeding the fishery limit established preseason for each IPHC Regulatory Area;

(b) is consistent with the Convention between Canada and the United States of America for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, and applicable domestic law of either Canada or the United States of America; and

(c) is consistent, to the maximum extent practicable, with any domestic catch sharing plans or other domestic allocation programs developed by the governments of Canada or the United States of America.

(2) In-season actions may include, but are not limited to, establishment or modification of the following:

(a) closed areas;

(b) fishing periods;

(c) fishing period limits;

(d) gear restrictions;

(e) recreational (sport) bag limits;

(f) size limits; or

(g) vessel clearances.

(3) In-season changes will be effective at the time and date specified by the Commission.

(4) The Commission will announce in-season actions under this Section by providing notice to major Pacific halibut processors; Federal, State, United States of America treaty Indian, and Provincial fishery officials; and the media.

(5) Notwithstanding paragraphs (3) and (4) of this Section, in IPHC Regulatory Area 2A the USA (NOAA Fisheries) may take in-season action to reallocate the recreational fishery limits between Washington, Oregon, and California after determining that such action will not result in exceeding the overall IPHC Regulatory Area 2A recreational fishery limit and that such action is consistent with any domestic catch sharing plan. Any such reallocation will be announced by the USA (NOAA Fisheries) and published in the Federal Register .

(1) All Pacific halibut that are caught and are not retained shall be immediately released outboard of the roller and returned to the sea with a minimum of injury by:

(a) hook straightening;

(b) cutting the gangion near the hook; or

(c) carefully removing the hook by twisting it from the Pacific halibut with a gaff.

(2) Except that paragraph (1) shall not prohibit the possession of Pacific halibut on board a vessel that has been brought aboard to be measured to determine if the applicable size limit of the Pacific halibut is met and, if not legal-sized, is promptly returned to the sea with a minimum of injury.

(1) Nothing contained in these Regulations prohibits any vessel at any time from retaining and landing a Pacific halibut that bears a Commission external tag at the time of capture, if the Pacific halibut with the tag still attached is reported at the time of landing and made available for examination by an authorized representative of the Commission or by an authorized officer.

(2) After examination and removal of the tag by an authorized representative of the Commission or an authorized officer, the Pacific halibut:

(a) may be retained for personal use; or

(b) may be sold only if the Pacific halibut is caught during commercial Pacific halibut fishing and complies with the other commercial fishing provisions of these Regulations.

(3) Any Pacific halibut that bears a Commission external tag will not count against commercial fishing period limits, Individual Vessel Quota (IVQ), Individual Transferable Quota (ITQ), Community Development Quota (CDQ), or Individual Fishing Quota (IFQ), and are not subject to size limits in these regulations, but should still be recorded in the landing record.

(4) Any Pacific halibut that bears a Commission external tag will not count against recreational (sport) daily bag limits or possession limits, may be retained outside of recreational (sport) fishing seasons, and are not subject to size limits in these regulations.

(5) Any Pacific halibut that bears a Commission external tag will not count against daily bag limits, possession limits, or fishery limits in the fisheries described in Section 22(1)(c), Section 23, or Section 24.

(1) The fishing periods for each IPHC Regulatory Area apply where the fishery limits specified in Section 5 have not been taken.

(2) Unless the Commission specifies otherwise, commercial fishing for Pacific halibut in all IPHC Regulatory Areas may begin no earlier in the year than 06:00 local time on 15 March.

(3) All commercial fishing for Pacific halibut in all IPHC Regulatory Areas shall cease for the year at 23:59 local time on 7 December.

(4) Regulations pertaining to the non-tribal directed commercial fishing  2 periods in IPHC Regulatory Area 2A will be promulgated by NOAA Fisheries and published in the Federal Register . This fishery will occur between the dates and times listed in paragraphs (2) and (3) of this Section.

(5) Notwithstanding paragraph (4) of this Section, an incidental catch fishery  3 is authorized during the sablefish seasons in IPHC Regulatory Area 2A in accordance with regulations promulgated by NOAA Fisheries. This fishery will occur between the dates and times listed in paragraphs (2) and (3) of this Section.

(6) Notwithstanding paragraph (4) of this Section, an incidental catch fishery is authorized during salmon troll seasons in IPHC Regulatory Area 2A in accordance with regulations promulgated by NOAA Fisheries. This fishery will occur between the dates and times listed in paragraphs (2) and (3) of this Section.

All waters in the Bering Sea north of 55°00′00″ N latitude in Isanotski Strait that are enclosed by a line from Cape Sarichef Light (54°36′00″ N latitude, 164°55′42″ W longitude) to a point at 56°20′00″ N latitude, 168°30′00″ W longitude; thence to a point at 58°21′25″ N latitude, 163°00′00″ W longitude; thence to Strogonof Point (56°53′18″ N latitude, 158°50′37″ W longitude); and then along the northern coasts of the Alaska Peninsula and Unimak Island to the point of origin at Cape Sarichef Light are closed to Pacific halibut fishing and no person shall fish for Pacific halibut therein or have Pacific halibut in his/her possession while in those waters except in the course of a continuous transit across those waters. All waters in Isanotski Strait between 55°00′00″ N latitude and 54°49′00″ N latitude are closed to Pacific halibut fishing.

(1) No person shall engage in fishing for Pacific halibut in any IPHC Regulatory Area other than during the fishing periods set out in Section 9 in respect of that area.

(2) No person shall land or otherwise retain Pacific halibut caught outside a fishing period applicable to the IPHC Regulatory Area where the Pacific halibut was taken.

(3) Subject to paragraphs (7), (8), (9), and (10) of Section 17, these Regulations do not prohibit fishing for any species of fish other than Pacific halibut during the closed periods.

(4) Notwithstanding paragraph (3), no person shall have Pacific halibut in his/her possession while fishing for any other species of fish during the closed periods.

(5) No vessel shall retrieve any Pacific halibut fishing gear during a closed period if the vessel has any Pacific halibut on board.

(6) A vessel that has no Pacific halibut on board may retrieve any Pacific halibut fishing gear during the closed period after the operator notifies an authorized officer or an authorized representative of the Commission prior to that retrieval.

(7) After retrieval of Pacific halibut gear in accordance with paragraph (6), the vessel shall submit to a hold inspection at the discretion of the authorized officer or an authorized representative of the Commission.

(8) No person shall retain any Pacific halibut caught on gear retrieved in accordance with paragraph (6).

(9) No person shall possess Pacific halibut on board a vessel in an IPHC Regulatory Area during a closed period unless that vessel is in continuous transit to or within a port in which that Pacific halibut may be lawfully sold.

(1) Notwithstanding the fishery limits described in Section 5, regulations pertaining to the division of the IPHC Regulatory Area 2A fishery limit between the non-tribal directed commercial fishery and the incidental catch fishery as described in paragraphs (5) and (6) of Section 9 will be promulgated by NOAA Fisheries and published in the Federal Register .

(2) Notwithstanding the fishery limits described in Section 5, the IPHC Regulatory Area 2A non-tribal directed commercial fishery will close when NOAA Fisheries determines and announces in the Federal Register that the fishery limit has been or is projected to be reached, or on the date when fishing must cease as specified in Section 9, whichever is earlier.

(3) Notwithstanding the fishery limits described in Section 5, the commercial fishing in IPHC Regulatory Area 2B will close only when all Individual Vessel Quota (IVQ) and Individual Transferable Quota (ITQ) assigned by DFO are taken, or on the date when fishing must cease as specified in Section 9, whichever is earlier.

(4) Notwithstanding the fishery limits described in Section 5, IPHC Regulatory Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E will each close only when all Individual Fishing Quota (IFQ) and all Community Development Quota (CDQ) issued by NOAA Fisheries have been taken, or on the date when fishing must cease as specified in Section 9, whichever is earlier.

(5) Notwithstanding the fishery limits described in Section 5, the total allowable catch of Pacific halibut that may be taken in the IPHC Regulatory Area 4E directed commercial fishery is equal to the combined annual fishery limits specified for the IPHC Regulatory Areas 4D and 4E CDQ fisheries and any IPHC Regulatory Area 4D IFQ received by transfer by a CDQ organization. The annual IPHC Regulatory Area 4D fishery limit will decrease by the equivalent amount of CDQ and IFQ received by transfer by a CDQ organization taken in IPHC Regulatory Area 4E in excess of the annual IPHC Regulatory Area 4E fishery limit.

(6) Notwithstanding the fishery limits described in Section 5, the total allowable catch of Pacific halibut that may be taken in the IPHC Regulatory Area 4D directed commercial fishery is equal to the combined annual fishery limits specified for IPHC Regulatory Areas 4C and 4D. The annual IPHC Regulatory Area 4C fishery limit will decrease by the equivalent amount of Pacific halibut taken in IPHC Regulatory Area 4D in excess of the annual IPHC Regulatory Area 4D fishery limit.

(1) No person shall fish for Pacific halibut from a vessel, nor land or retain Pacific halibut on board a vessel, used for commercial fishing in IPHC Regulatory Area 2A, unless issued a permit valid for fishing in IPHC Regulatory Area 2A by NOAA Fisheries according to 50 CFR 300 Subpart E.

(2) It shall be unlawful for any vessel to retain more Pacific halibut than authorized by that vessel's permit in any fishing period for which a fishing period limit is announced by NOAA Fisheries in the Federal Register .

(3) The operator of any vessel that fishes for Pacific halibut during a fishing period when fishing period limits are in effect must, upon commencing an offload of Pacific halibut to a commercial fish processor, completely offload all Pacific halibut on board said vessel to that processor and ensure that all Pacific halibut is weighed and reported on State fish tickets.

(4) The operator of any vessel that fishes for Pacific halibut during a fishing period when fishing period limits are in effect must, upon commencing an offload of Pacific halibut other than to a commercial fish processor, completely offload all Pacific halibut on board said vessel and ensure that all Pacific halibut are weighed and reported on State fish tickets.

(5) The provisions of paragraph (4) are not intended to prevent retail over-the-side sales to individual purchasers so long as all the Pacific halibut on board is ultimately offloaded and reported.

(6) Fishing period limits in IPHC Regulatory Area 2A will be promulgated by NOAA Fisheries and published in the Federal Register and apply only to the non-tribal directed commercial Pacific halibut fishery referred to in paragraph (4) of Section 9.

(1) Section 14 applies only to any person fishing for, or any vessel that is used to fish for, IPHC Regulatory Area 4E Community Development Quota (CDQ) Pacific halibut, IPHC Regulatory Area 4D CDQ Pacific halibut, or IPHC Regulatory Area 4D Individual Fishing Quota (IFQ) received by transfer by a CDQ organization provided that the total annual Pacific halibut catch of that person or vessel is landed at a port within IPHC Regulatory Areas 4E or 4D.

(2) A person may retain Pacific halibut taken with setline gear that are smaller than the size limit specified in Section 18, provided that no person may sell or barter such Pacific halibut.

(3) The manager of a CDQ organization that authorizes persons to harvest Pacific halibut in the IPHC Regulatory Area 4E or 4D CDQ fisheries or IFQ received by transfer by a CDQ organization must report to the Commission the total number and weight of undersized Pacific halibut taken and retained by such persons pursuant to paragraph (2) of this Section. This report, which shall include data and methodology used to collect the data, must be received by the Commission prior to 1 November of the year in which such Pacific halibut were harvested.

(1) The operator of any vessel that fishes for Pacific halibut in IPHC Regulatory Areas 4A, 4B, 4C, or 4D must obtain a vessel clearance before fishing in any of these areas, and before the landing of any Pacific halibut caught in any of these areas, unless specifically exempted in paragraphs (10), (13), (14), (15), or (16).

(2) An operator obtaining a vessel clearance required by paragraph (1) must obtain the clearance in person from the authorized clearance personnel and sign the IPHC form documenting that a clearance was obtained, except that when the clearance is obtained via VHF radio referred to in paragraphs (5), (8), and (9), the authorized clearance personnel must sign the IPHC form documenting that the clearance was obtained.

(3) The vessel clearance required under paragraph (1) prior to fishing in IPHC Regulatory Area 4A may be obtained only at Nazan Bay on Atka Island, Dutch Harbor, or Akutan, Alaska, from the authorized clearance personnel.

(4) The vessel clearance required under paragraph (1) prior to fishing in IPHC Regulatory Area 4B may only be obtained at Nazan Bay on Atka Island or Adak, Alaska, from the authorized clearance personnel.

(5) The vessel clearance required under paragraph (1) prior to fishing in IPHC Regulatory Area 4C or 4D may be obtained only at St. Paul or St. George, Alaska, from the authorized clearance personnel by VHF radio and allowing the person contacted to confirm visually the identity of the vessel.

(6) The vessel operator shall specify the specific regulatory area in which fishing will take place.

(7) Before unloading any Pacific halibut caught in IPHC Regulatory Area 4A, a vessel operator may obtain the clearance required under paragraph (1) only in Dutch Harbor or Akutan, Alaska, by contacting the authorized clearance personnel.

(8) Before unloading any Pacific halibut caught in IPHC Regulatory Area 4B, a vessel operator may obtain the clearance required under paragraph (1) only in Nazan Bay on Atka Island or Adak, by contacting the authorized clearance personnel by VHF radio or in person.

(9) Before unloading any Pacific halibut caught in IPHC Regulatory Areas 4C and 4D, a vessel operator may obtain the clearance required under paragraph (1) only in St. Paul, St. George, Dutch Harbor, or Akutan, Alaska, either in person or by contacting the authorized clearance personnel. The clearances obtained in St. Paul or St. George, Alaska, can be obtained by VHF radio and allowing the person contacted to confirm visually the identity of the vessel.

(10) Any vessel operator who complies with the requirements in Section 16 for possessing Pacific halibut on board a vessel that was caught in more than one regulatory area in IPHC Regulatory Area 4 is exempt from the clearance requirements of paragraph (1) of this Section, provided that:

(a) the operator of the vessel obtains a vessel clearance prior to fishing in IPHC Regulatory Area 4 in either Dutch Harbor, Akutan, St. Paul, St. George, Adak, or Nazan Bay on Atka Island by contacting the authorized clearance personnel. The clearance obtained in St. Paul, St. George, Adak, or Nazan Bay on Atka Island can be obtained by VHF radio and allowing the person contacted to confirm visually the identity of the vessel. This clearance will list the areas in which the vessel will fish; and

(b) before unloading any Pacific halibut from IPHC Regulatory Area 4, the vessel operator obtains a vessel clearance from Dutch Harbor, Akutan, St. Paul, St. George, Adak, or Nazan Bay on Atka Island by contacting the authorized clearance personnel. The clearance obtained in St. Paul or St. George can be obtained by VHF radio and allowing the person contacted to confirm visually the identity of the vessel. The clearance obtained in Adak or Nazan Bay on Atka Island can be obtained by VHF radio.

(11) Vessel clearances shall be obtained between 0600 and 1800, local time.

(12) No Pacific halibut shall be on board the vessel at the time of the clearances required prior to fishing in IPHC Regulatory Area 4.

(13) Any vessel that is used to fish for Pacific halibut only in IPHC Regulatory Area 4A and lands its total annual Pacific halibut catch at a port within IPHC Regulatory Area 4A is exempt from the clearance requirements of paragraph (1).

(14) Any vessel that is used to fish for Pacific halibut only in IPHC Regulatory Area 4B and lands its total annual Pacific halibut catch at a port within IPHC Regulatory Area 4B is exempt from the clearance requirements of paragraph (1).

(15) Any vessel that is used to fish for Pacific halibut only in IPHC Regulatory Areas 4C or 4D or 4E and lands its total annual Pacific halibut catch at a port within IPHC Regulatory Areas 4C, 4D, 4E, or the closed area defined in Section 10, is exempt from the clearance requirements of paragraph (1).

(16) Any vessel that carries a NOAA Fisheries observer, a NOAA Fisheries electronic monitoring system, or a transmitting VMS transmitter while fishing for Pacific halibut in IPHC Regulatory Areas 4A, 4B, 4C, or 4D and until all Pacific halibut caught in any of these IPHC Regulatory Areas is landed, is exempt from the clearance requirements of paragraph (1) of this Section, provided that:

(a) the operator of the vessel complies with NOAA Fisheries' observer or electronic monitoring regulations published at 50 CFR Subpart E, or vessel monitoring system regulations published at 50 CFR 679.28(f)(3), (4) and (5); and

(b) the operator of the vessel notifies NOAA Fisheries Office for Law Enforcement at 800-304-4846 (select option 1 to speak to an Enforcement Data Clerk) between the hours of 0600 and 0000 (midnight) local time within 72 hours before fishing for Pacific halibut in IPHC Regulatory Areas 4A, 4B, 4C, or 4D and receives a VMS confirmation number.

(1) Except as provided in this Section, no person shall possess at the same time on board a vessel Pacific halibut caught in more than one IPHC Regulatory Area.

(2) Pacific halibut caught in more than one of the IPHC Regulatory Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, or 4E may be possessed on board a vessel at the same time only if:

(a) authorized by NOAA Fisheries regulations published at 50 CFR 679.7(f)(4); and

(b) the operator of the vessel identifies the regulatory area in which each Pacific halibut on board was caught by separating Pacific halibut from different areas in the hold, tagging Pacific halibut, or by other means.

(1) No person shall fish for Pacific halibut using any gear other than hook and line gear,

(a) except that a person may retain Pacific halibut taken with longline or single trap gear if such retention is authorized by DFO as defined by Pacific Fishery Regulations and Conditions of Licence; or

(b) except that a person may retain Pacific halibut taken with longline or single pot gear if such retention is authorized by NOAA Fisheries regulations published at 50 CFR part 679.

(2) No person shall possess Pacific halibut taken with any gear other than hook and line gear,

(a) except that a person may possess Pacific halibut taken with longline or single trap gear if such retention is authorized by DFO as defined by Pacific Fishery Regulations and Conditions of Licence; or

(b) except that a person may possess Pacific halibut taken with longline or single pot gear if such possession is authorized by NOAA Fisheries regulations published at 50 CFR part 679.

(3) No person shall possess Pacific halibut while on board a vessel carrying any trawl nets.

(4) All gear marker buoys carried on board or used by any United States of America vessel used for Pacific halibut fishing shall be marked with one of the following:

(a) the vessel's State license number; or

(b) the vessel's registration number.

(5) The markings specified in paragraph (4) shall be in characters at least four inches in height and one-half inch in width in a contrasting color visible above the water and shall be maintained in legible condition.

(6) All gear marker buoys carried on board or used by a Canadian vessel used for Pacific halibut fishing shall be:

(a) floating and visible on the surface of the water; and

(b) legibly marked with the identification plate number of the vessel engaged in commercial fishing from which that setline is being operated.

(7) No person on board a vessel used to fish for any species of fish anywhere in IPHC Regulatory Area 2A during the 72-hour period immediately before the fishing period for the non-tribal directed commercial fishery shall catch or possess Pacific halibut anywhere in those waters during that Pacific halibut fishing period unless, prior to the start of the Pacific halibut fishing period, the vessel has removed its gear from the water and has either:

(a) made a landing and completely offloaded its catch of other fish; or

(b) submitted to a hold inspection by an authorized officer.

(8) No vessel used to fish for any species of fish anywhere in IPHC Regulatory Area 2A during the 72-hour period immediately before the fishing period for the non-tribal directed commercial fishery may be used to catch or possess Pacific halibut anywhere in those waters during that Pacific halibut fishing period unless, prior to the start of the Pacific halibut fishing period, the vessel has removed its gear from the water and has either:

(a) made a landing and completely offloaded its catch of other fish; or

(b) submitted to a hold inspection by an authorized officer.

(9) No person on board a vessel used to fish for any species of fish anywhere in IPHC Regulatory Areas 2B, 2C, 3A, 3B, 4A, 4B, 4C, 4D, or 4E during the 72-hour period immediately before the opening of the Pacific halibut fishing season shall catch or possess Pacific halibut anywhere in those areas until the vessel has removed all of its gear from the water and has either:

(a) made a landing and completely offloaded its entire catch of other fish; or

(b) submitted to a hold inspection by an authorized officer.

(10) No vessel used to fish for any species of fish anywhere in IPHC Regulatory Areas 2B, 2C, 3A, 3B, 4A, 4B, 4C, 4D, or 4E during the 72-hour period immediately before the opening of the Pacific halibut fishing season may be used to catch or possess Pacific halibut anywhere in those areas until the vessel has removed all of its gear from the water and has either:

(a) made a landing and completely offloaded its entire catch of other fish; or

(b) submitted to a hold inspection by an authorized officer.

(11) Notwithstanding any other provision in these Regulations, a person may retain, possess and dispose of Pacific halibut taken with trawl gear only as authorized by Prohibited Species Donation regulations of NOAA Fisheries.

(1) No person shall take or possess any Pacific halibut that:

(a) with the head on, is less than 32 inches (81.3 cm) as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with the mouth closed, to the extreme end of the middle of the tail, as illustrated in Figure 2; or

(b) with the head removed, is less than 24 inches (61.0 cm) as measured from the base of the pectoral fin at its most anterior point to the extreme end of the middle of the tail, as illustrated in Figure 2.

(2) No person on board a vessel fishing for, or tendering, Pacific halibut in any IPHC Regulatory Area shall possess any Pacific halibut that has had its head removed, except that Pacific halibut frozen at sea with its head removed may be possessed on board a vessel by persons in IPHC Regulatory Areas 2B, 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E if authorized by Federal regulations.

(3) The size limit in paragraph (1)(b) will not be applied to any Pacific halibut that has had its head removed after the operator has landed the Pacific halibut.

(1) The operator of any U.S. vessel fishing for Pacific halibut that has an overall length of 26 feet (7.9 meters) or greater shall maintain an accurate log of Pacific halibut fishing operations.

(2) The operator of a vessel fishing in waters in and off Alaska must use one of the following logbooks:

(a) IPHC Pacific halibut logbook (or logbook previously provided by IPHC) or IPHC-approved electronic equivalent;

(b) catcher vessel longline and pot gear Daily Fishing Logbook, or catcher/processor longline and pot gear Daily Cumulative Production Logbook, in electronic or paper form, provided or approved by NOAA Fisheries;

(c) hook-and-line logbook provided by Alaska Longline Fishermen's Association; or

(d) Alaska Department of Fish and Game (ADFG) longline-pot logbook.

(3) The operator of a vessel fishing in IPHC Regulatory Area 2A must use either:

(a) IPHC Pacific halibut logbook (or logbook previously provided by IPHC) or IPHC-approved electronic equivalent;

(b) Oregon Department of Fish and Wildlife (ODFW) Fixed Gear Logbook; or

(c) Pacific Coast Groundfish non-trawl logbook provided by NOAA Fisheries.

(4) The logbooks referred to in paragraphs (2) and (3) must include the following information:

(a) the name of the vessel and the State (ADFG, WDFW, ODFW, or CDFW) or Tribal ID number;

(b) the date(s) upon which the fishing gear is set or retrieved;

(c) the latitude and longitude coordinates for each set;

(d) the number of skates deployed or retrieved, and number of skates lost; and

(e) the total weight or number of Pacific halibut retained for each set.

(5) The logbooks referred to in paragraphs (2) and (3) shall be:

(a) maintained on board the vessel;

(b) updated not later than 24 hours after 0000 (midnight) local time for each day fished and prior to the offloading or sale of Pacific halibut taken during that fishing trip;

(c) retained for a period of two years by the owner or operator of the vessel;

(d) open to inspection by an authorized officer or an authorized representative of the Commission upon demand;

(e) kept on board the vessel when engaged in Pacific halibut fishing, during transits to port of landing, and until the offloading of all Pacific halibut is completed; and

(f) submitted to the Commission within 30 days of the season closing date if not previously collected by an authorized representative of the Commission or otherwise made available to the Commission.

(6) The log referred to in paragraph (1) does not apply to the incidental Pacific halibut fishery during the salmon troll season in IPHC Regulatory Area 2A defined in paragraph (6) of Section 9.

(7) The operator of any Canadian vessel fishing for Pacific halibut shall maintain an accurate record in the British Columbia Integrated Groundfish Fishing Log.

(8) The log referred to in paragraph (7) must include the following information:

(a) the name of the vessel and the DFO vessel registration number;

(b) the date(s) upon which the fishing gear is set and retrieved;

(c) the latitude and longitude coordinates for each set;

(d) the number of skates deployed or retrieved, and number of skates lost; and

(e) the total weight or number of Pacific halibut retained for each set.

(9) The log referred to in paragraph (7) shall be:

(a) maintained on board the vessel;

(b) retained for a period of two years by the owner or operator of the vessel;

(c) open to inspection by an authorized officer or an authorized representative of the Commission upon demand;

(d) kept on board the vessel when engaged in Pacific halibut fishing, during transits to port of landing, and until the offloading of all Pacific halibut is completed;

(e) submitted to the DFO within seven days of offloading; and

(f) submitted to the Commission within seven days of the final offload if not previously collected by an authorized representative of the Commission.

(10) No person shall make a false entry in a log referred to in this Section.

(11) Writing in a log referred to in this Section shall be clear and legible.

(1) No person shall receive Pacific halibut caught in IPHC Regulatory Area 2A from a United States of America vessel that does not have on board the permit required by Section 13(1).

(2) No person shall possess on board a vessel a Pacific halibut other than whole or with gills and entrails removed, except that this paragraph shall not prohibit the possession on board a vessel of:

(a) Pacific halibut cheeks cut from Pacific halibut caught by persons authorized to process the Pacific halibut on board in accordance with NOAA Fisheries regulations published at 50 CFR part 679;

(b) fillets from Pacific halibut offloaded in accordance with this Section that are possessed on board the harvesting vessel in the port of landing up to 1800 local time on the calendar day following the offload  4 ; and

(c) Pacific halibut with their heads removed in accordance with Section 18.

(3) No person shall offload Pacific halibut from a vessel unless the gills and entrails have been removed prior to offloading. 5

(4) It shall be the responsibility of a vessel operator who lands Pacific halibut to continuously and completely offload at a single offload site all Pacific halibut on board the vessel.

(5) A registered buyer (as that term is defined in regulations promulgated by NOAA Fisheries and codified at 50 CFR part 679) who receives Pacific halibut harvested in Individual Fishing Quota (IFQ) and Community Development Quota (CDQ) fisheries in IPHC Regulatory Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E, directly from the vessel operator that harvested such Pacific halibut must weigh all the Pacific halibut received and record the following information on Federal catch reports: date of offload; name of vessel; vessel number (State, Tribal or Federal, not IPHC vessel number); scale weight obtained at the time of offloading, including the scale weight (in pounds) of Pacific halibut purchased by the registered buyer, the scale weight (in pounds) of Pacific halibut offloaded in excess of the IFQ or CDQ, the scale weight of Pacific halibut (in pounds) retained for personal use or for future sale, and the scale weight (in pounds) of Pacific halibut discarded as unfit for human consumption. All Pacific halibut harvested in IFQ or CDQ fisheries in Areas IPHC Regulatory 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E, must be weighed with the head on and the head-on weight must be recorded on Federal catch reports as specified in this paragraph, unless the Pacific halibut is frozen at sea and exempt from the head-on landing requirement at Section 18(2).

(6) The first recipient, commercial fish processor, or buyer in the United States of America who purchases or receives Pacific halibut directly from the vessel operator that harvested such Pacific halibut must weigh and record all Pacific halibut received and record the following information on State fish tickets: the date of offload; vessel number (State or Federal, not IPHC vessel number) or Tribal ID number; total weight obtained at the time of offload including the weight (in pounds) of Pacific halibut purchased; the weight (in pounds) of Pacific halibut offloaded in excess of the IFQ, CDQ, or fishing period limits; the weight of Pacific halibut (in pounds) retained for personal use or for future sale; and the weight (in pounds) of Pacific halibut discarded as unfit for human consumption. All Pacific halibut harvested in fisheries in IPHC Regulatory Areas 2A, 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E must be weighed with the head on and the head-on weight must be recorded on State fish tickets as specified in this paragraph, unless the Pacific halibut is frozen at sea and exempt from the head-on landing requirement at Section 18(2).

(7) For Pacific halibut landings made in Alaska, the requirements as listed in paragraphs (5) and (6) can be met by recording the information in the Interagency Electronic Reporting Systems, eLandings, in accordance with NOAA Fisheries regulation published at 50 CFR part 679.

(8) The master or operator of a Canadian vessel that was engaged in Pacific halibut fishing must weigh and record all Pacific halibut on board said vessel at the time offloading commences and record on Provincial fish tickets or Federal catch reports: the date; locality; name of vessel; the name(s) of the person(s) from whom the Pacific halibut was purchased; and the scale weight obtained at the time of offloading of all Pacific halibut on board the vessel including the pounds purchased, pounds in excess of Individual Vessel Quota (IVQ) or Individual Transferable Quota (ITQ), pounds retained for personal use, and pounds discarded as unfit for human consumption. All Pacific halibut must be weighed with the head on and the head-on weight must be recorded on the Provincial fish tickets or Federal catch reports as specified in this paragraph, unless the Pacific halibut is frozen at sea and exempt from the head-on landing requirement at Section 18(2).

(9) No person shall make a false entry on a State or Provincial fish ticket or a Federal catch or landing report referred to in paragraphs (5), (6), and (8) of this Section.

(10) A copy of the fish tickets or catch reports referred to in paragraphs (5), (6), and (8) shall be:

(a) retained by the person making them for a period of three years from the date the fish tickets or catch reports are made; and

(b) open to inspection by an authorized officer or an authorized representative of the Commission.

(11) No person shall possess any Pacific halibut taken or retained in contravention of these Regulations.

(12) When Pacific halibut are landed to other than a commercial fish processor, the records required by paragraph (6) shall be maintained by the operator of the vessel from which that Pacific halibut was caught, in compliance with paragraph (10).

(13) No person shall tag Pacific halibut unless the tagging is authorized by IPHC or by a Federal or State agency.

(1) The unloading and weighing of Pacific halibut may be subject to the supervision of authorized officers to assure the fulfillment of the provisions of these Regulations.

(2) The unloading and weighing of Pacific halibut may be subject to sampling by an authorized representative of the Commission.

(1) Pacific halibut fishing in IPHC Regulatory Area Subarea 2A-1 by members of United States treaty Indian tribes located in the State of Washington shall be regulated under regulations promulgated by NOAA Fisheries and published in the Federal Register :

(a) Subarea 2A-1 includes the usual and accustomed fishing areas for Pacific Coast treaty tribes off the coast of Washington and all inland marine waters of Washington north of Point Chehalis (46°53.30′ N lat.), including Puget Sound. Boundaries of a tribe's fishing area may be revised as ordered by a United States Federal court;

(b) Section 13(1) does not apply to commercial fishing for Pacific halibut in Subarea 2A-1 by Indian tribes; and

(c) ceremonial and subsistence fishing for Pacific halibut in Subarea 2A-1 is permitted with hook and line gear from 1 January through 31 December.

(2) In IPHC Regulatory Area 2C, the Metlakatla Indian Community has been authorized by the United States Government to conduct a commercial Pacific halibut fishery within the Annette Islands Reserve. Fishing periods for this fishery are announced by the Metlakatla Indian Community and the Bureau of Indian Affairs. Landings in this fishery are accounted with the commercial landings for IPHC Regulatory Area 2C.

(3) Section 7 (careful release of Pacific halibut), Section 17 (fishing gear), except paragraphs (7) and (8) of Section 17, Section 18 (size limits), Section 19 (logs), and Section 20 (receipt and possession of Pacific halibut) apply to commercial fishing for Pacific halibut by Indian tribes.

Regulations in paragraph (3) of this Section that apply to State fish tickets apply to Tribal tickets that are authorized by WDFW and ADFG.

(5) Commercial fishing for Pacific halibut is permitted with hook and line gear between the dates specified in Section 9 paragraphs (2) and (3), or until the applicable fishery limit specified in Section 5 is taken, whichever occurs first.

(1) Fishing for Pacific halibut for food, social and ceremonial purposes by Indigenous groups in IPHC Regulatory Area 2B shall be governed by the Fisheries Act of Canada and regulations as amended from time to time.

(1) Customary and traditional fishing for Pacific halibut in IPHC Regulatory Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E shall be governed pursuant to regulations promulgated by NOAA Fisheries and published in 50 CFR part 300.

(2) Customary and traditional fishing is authorized from 1 January through 31 December.

(1) No person shall engage in recreational (sport) fishing for Pacific halibut using gear other than a single line with no more than two hooks attached; or a spear.

(2) Any size limit promulgated under IPHC or domestic regulations shall be measured in a straight line passing over the pectoral fin from the tip of the lower jaw with the mouth closed, to the extreme end of the middle of the tail as depicted in Figure 2.

(3) Any Pacific halibut brought aboard a vessel and not immediately returned to the sea with a minimum of injury will be included in the daily bag limit of the person catching the Pacific halibut.

(4) No person may possess Pacific halibut on a vessel while fishing in a closed area.

(5) No Pacific halibut caught by recreational (sport) fishing shall be offered for sale, sold, traded, or bartered.

(6) No Pacific halibut caught in recreational (sport) fishing shall be possessed on board a vessel when other fish or shellfish aboard said vessel are destined for commercial use, sale, trade, or barter.

(7) The operator of a charter vessel shall be liable for any violations of these Regulations committed by an angler on board said vessel. In Alaska, the charter vessel guide, as defined in 50 CFR 300.61 and referred to in 50 CFR 300.65, 300.66, and 300.67, shall be liable for any violation of these Regulations committed by an angler on board a charter vessel.

(1) The Commission shall determine and announce closing dates to the public for any area in which the fishery limits promulgated by NOAA Fisheries are estimated to have been taken.

(2) When the Commission has determined that a subquota under paragraph (7) of this Section is estimated to have been taken, and has announced a date on which the season will close, no person shall recreational (sport) fish for Pacific halibut in that area after that date for the rest of the year, unless a reopening of that area for recreational (sport) Pacific halibut fishing is scheduled in accordance with the Catch Sharing Plan for IPHC Regulatory Area 2A, or announced by the Commission.

(3) No person shall fish for Pacific halibut from a vessel, nor land or retain Pacific halibut on board a vessel, used as a charter vessel in IPHC Regulatory Area 2A, unless issued a permit valid for fishing in IPHC Regulatory Area 2A by NOAA Fisheries according to 50 CFR 300 Subpart E.

(4) In California, Oregon, or Washington, no person shall fillet, mutilate, or otherwise disfigure a Pacific halibut in any manner that prevents the determination of minimum size or the number of fish caught, possessed, or landed.

(5) The possession limit on a vessel for Pacific halibut in the waters off the coast of Washington is the same as the daily bag limit. The possession limit for Pacific halibut on land in Washington is two daily bag limits.

(6) The possession limit on a vessel for Pacific halibut caught in the waters off the coast of Oregon is the same as the daily bag limit. The possession limit for Pacific halibut on land in Oregon is three daily bag limits.

(7) The possession limit on a vessel for Pacific halibut caught in the waters off the coast of California is one daily bag limit. The possession limit for Pacific halibut on land in California is one daily bag limit.

(8) Specific regulations describing fishing periods, fishery limits, fishing dates, and daily bag limits are promulgated by NOAA Fisheries and published in the Federal Register .

(1) In all waters off British Columbia:  6 7

(a) the recreational (sport) fishing season will open on 1 February;

(b) the recreational (sport) fishing season will close when the recreational (sport) fishery limit allocated by DFO is taken, or 31 December, whichever is earlier; and

(c) the daily bag limit is two (2) Pacific halibut of any size per day, per person, and may be increased to a daily bag limit of three (3) Pacific halibut per day, per person on or after 1 August. This provision shall remain in effect through 2025, unless extended by a vote of the Commission.

(2) In British Columbia, no person shall fillet, mutilate, or otherwise disfigure a Pacific halibut in any manner that prevents the determination of minimum size or the number of fish caught, possessed, or landed.

(3) The possession limit for Pacific halibut in the waters off the coast of British Columbia is three Pacific halibut. 6 7

(1) In Convention waters in and off Alaska:  8 9

(a) the recreational (sport) fishing season is from 1 February to 31 December;

(b) the daily bag limit is two Pacific halibut of any size per day per person unless a more restrictive bag limit applies in Commission regulations or Federal regulations at 50 CFR 300.65;

(c) no person may possess more than two daily bag limits;

(d) no person shall possess on board a vessel, including charter vessels and pleasure craft used for fishing, Pacific halibut that have been filleted, mutilated, or otherwise disfigured in any manner, except that each Pacific halibut may be cut into no more than 2 ventral pieces, 2 dorsal pieces, and 2 cheek pieces, with a patch of skin on each piece, naturally attached. Either one dorsal piece or one ventral piece from one Pacific halibut on board may be consumed;

(e) Pacific halibut in excess of the possession limit in paragraph (1)(c) of this Section may be possessed on a vessel that does not contain recreational (sport) fishing gear, fishing rods, hand lines, or gaffs;

(f) Pacific halibut harvested on a charter vessel fishing trip in IPHC Regulatory Areas 2C or 3A must be retained on board the charter vessel on which the Pacific halibut was caught until the end of the charter vessel fishing trip as defined at 50 CFR 300.61;

(g) guided angler fish (GAF), as described at 50 CFR 300.65, may be used to allow a charter vessel angler to harvest additional Pacific halibut up to the limits in place for unguided anglers, and are exempt from the requirements in paragraphs (2) and (3) of this Section; and

(h) if there is an annual limit on the number of Pacific halibut that may be retained by a charter vessel angler as defined at 50 CFR 300.61, for purposes of enforcing the annual limit, each charter vessel angler must:

(1) maintain a nontransferable harvest record in the angler's possession if retaining a Pacific halibut for which an annual limit has been established. Such harvest record must be maintained either on the angler's State of Alaska recreational (sport) fishing license, an ADFG approved electronic harvest record, or on a Sport Fishing Harvest Record Card obtained, without charge, from ADFG offices, the ADFG website, or fishing license vendors;

(2) immediately upon retaining a Pacific halibut for which an annual limit has been established, permanently and legibly record the date, location (IPHC Regulatory Area), and species of the catch (Pacific halibut) on the harvest record; and

(3) record the information required by paragraph 1(h)(2) on any duplicate or additional recreational (sport) fishing license issued to the angler, duplicate electronic harvest record, or any duplicate or additional Sport Fishing Harvest Record Card obtained by the angler for all Pacific halibut previously retained during that year that were subject to the harvest record reporting requirements of this Section.

(2) For guided recreational (sport) fishing (as referred to in 50 CFR 300.65) in IPHC Regulatory Area 2C:

(a) no person on board a charter vessel (as referred to in 50 CFR 300.65) shall catch and retain more than one Pacific halibut per calendar day; and

(b) no person on board a charter vessel (as referred to in 50 CFR 300.65) shall catch and retain from, 1 February to 14 July, any Pacific halibut that with head on is greater than 40 inches (101.6 cm) and less than 80 inches (203.2 cm), and from 15 July to 31 December, any Pacific halibut that with head on is greater than 36 inches (91.4 cm) and less than 80 inches (203.2 cm), as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with mouth closed, to the extreme end of the middle of the tail; and

(c) no person on board a charter vessel may catch and retain Pacific halibut on any Friday from 19 July to 13 September.

(3) For guided recreational (sport) fishing (as referred to in 50 CFR 300.65) in IPHC Regulatory Area 3A:

(a) no person on board a charter vessel (as referred to in 50 CFR 300.65) shall catch and retain more than two Pacific halibut per calendar day;

(b) at least one of the retained Pacific halibut must have a head-on length of no more than 28 inches (71.1 cm) as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with mouth closed, to the extreme end of the middle of the tail. If a person recreational (sport) fishing on a charter vessel in IPHC Regulatory Area 3A retains only one Pacific halibut in a calendar day, that Pacific halibut may be of any length;

(c) a “charter halibut permit” (as referred to in 50 CFR 300.67) may only be used for one charter vessel fishing trip in which Pacific halibut are caught and retained per calendar day. A charter vessel fishing trip is defined at 50 CFR 300.61 as the time period between the first deployment of fishing gear into the water by a charter vessel angler (as defined at 50 CFR 300.61) and the offloading of one or more charter vessel anglers or any Pacific halibut from that vessel. For purposes of this trip limit, a charter vessel fishing trip ends at 2359 (Alaska local time) on the same calendar day that the fishing trip began, or when any anglers or Pacific halibut are offloaded, whichever comes first;

(d) a charter vessel on which one or more anglers catch and retain Pacific halibut may only make one charter vessel fishing trip per calendar day. A charter vessel fishing trip is defined at 50 CFR 300.61 as the time period between the first deployment of fishing gear into the water by a charter vessel angler (as defined at 50 CFR 300.61) and the offloading of one or more charter vessel anglers or any Pacific halibut from that vessel. For purposes of this trip limit, a charter vessel fishing trip ends at 2359 (Alaska local time) on the same calendar day that the fishing trip began, or when any anglers or Pacific halibut are offloaded, whichever comes first; and

(e) no person on board a charter vessel may catch and retain Pacific halibut on any Wednesday.

These Regulations shall supersede all previous regulations of the Commission, and these Regulations shall be effective each succeeding year until superseded.

These IPHC annual management measures are a product of an agreement between the United States and Canada and are published in the Federal Register to provide notice of their effectiveness and content. Pursuant to Section 4 of the Northern Pacific Halibut Act of 1982, 16 U.S.C. 773b, the Secretary of State, with the concurrence of the Secretary of Commerce, may only accept or reject these recommendations of the IPHC. These regulations become effective when such acceptance and concurrence occur. The notice-and-comment and delay-in-effectiveness date provisions of the Administrative Procedure Act (APA), 5 U.S.C. 553(b) and (d), are inapplicable to IPHC management measures because these regulations involve a foreign affairs function of the United States, 5 U.S.C. 553(a)(1). The Secretary of State has no discretion to modify the recommendations of the IPHC. The additional time necessary to comply with the notice-and-comment and delay-in-effectiveness requirements of the APA would disrupt coordinated international conservation and management of the halibut fishery pursuant to the Convention and the Northern Pacific Halibut Act of 1982.

The publication of these regulations in the Federal Register provide the affected public with notice that the IPHC management measures are in effect. Furthermore, no other law requires prior notice and public comment for this rule. Because 5 U.S.C. 553 or any other law does not require prior notice and an opportunity for public comment for this notice of the effectiveness of the IPHC's 2024 management measures, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. This final rule is exempt from review under Executive Order 12866.

The Paperwork Reduction Act of 1995 requires consideration of the impact of recordkeeping and other information collection burdens imposed on the public. Alaska state law establishes information collection requirements regarding harvest records for individual recreational anglers. See Alaska Admin. Code tit. 5, § 75.006(a) (2023). This final rule contains no new recordkeeping requirements beyond those contained in existing Alaska State or Federal law and therefore involves no additional collection of information burden. Moreover, because there is, at present, no annual limit on the number of Pacific halibut that may be retained by a charter vessel angler as defined at 50 CFR 300.61, the recordkeeping requirements referenced in section 29(1)(h) of the IPHC's Annual Management Measures do not apply during 2024.

Authority: 16 U.S.C. 773 et seq.

The snapper-grouper fishery of the South Atlantic includes blueline tilefish and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. The weights given in this temporary rule are in round weight.

The final rule for Abbreviated Framework 3 to the FMP implemented the recreational ACL for blueline tilefish of 116,820 pounds (52,989 kilograms) (85 FR 43145, July 16, 2020). NMFS recently revised the recreational AMs for blueline tilefish through the final rule for Amendment 52 to the FMP (88 FR 76696, November 7, 2023). Regulations for blueline tilefish at 50 CFR 622.193(z)(2) require NMFS to project the length of the recreational fishing season based on catch rates from the previous fishing year and when NMFS projects the recreational ACL to be met in the current fishing year and then to announce the season end date in the Federal Register .

The recreational season for blueline tilefish will open on May 1, 2024. Data from the NMFS Southeast Fisheries Science Center informed the projection that recreational landings of South Atlantic blueline tilefish will reach the recreational ACL after July 18, 2024. Accordingly, on July 19, 2024, NMFS closes the recreational sector for blueline tilefish. During a recreational closure for blueline tilefish in South Atlantic Federal waters, the bag and possession limits are zero.

The next recreational fishing season for blueline tilefish in South Atlantic Federal waters opens on May 1, 2025. As described in 50 CFR 622.183(b)(7), the recreational sector for blueline tilefish in or from South Atlantic Federal waters is closed each year from January 1 through April 30 and from September 1 through December 31.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 622.193(z)(2), issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment is unnecessary and contrary to the public interest. Such procedures are unnecessary because the regulations associated with the recreational harvest of blueline tilefish have already been subject to notice and public comment, and all that remains is to notify the public of the recreational season end date and the recreational closure. Prior notice and opportunity for public comment on this action is contrary to the public interest because of the need to protect the South Atlantic blueline tilefish resource. Additionally, providing as much advance notice to the public of this closure allows charter vessel and headboat businesses that fish for blueline tilefish to prepare for the rest of the fishing season and to schedule or reschedule trips for their clients and to maximize opportunities for their business revenues and profits.