On August 30, 2013, the Office of Personnel Management (OPM) published proposed regulations (78 FR 53695) regarding compensatory time off for religious observances under 5 U.S.C. 5550a and other miscellaneous changes.

The 60-day comment period for the proposed regulations ended on October 29, 2013. We received comments from 8 Federal agencies, 2 religious organizations (including one submission on behalf of 19 other religious and policy groups), and 4 individuals. This Federal Register document provides general information, addresses the comments received, and issues final regulations that reflect changes to the proposed regulations. OPM is amending the regulations found in subpart J (Compensatory Time Off for Religious Observances) in part 550 (Pay Administration (General)) of title 5, Code of Federal Regulations. It is also revising two definitions used in other regulations in part 550.

Four agencies provided comments disagreeing with the establishment of a 26 pay period limitation, generally stating it was an excessively long period that could lead to potential abuse, could impact the mission of the agency, and would be administratively burdensome on managers, supervisors, and timekeepers. Three agencies recommended establishing a 13 pay period limitation before and a 13 pay period limitation after for religious compensatory time off, thus providing a 26 pay period total for earning religious compensatory time off.

One agency objected to the proposed 26 pay period limit for earning religious compensatory time following the use of advanced religious compensatory time off, and is seeking a two pay period limit following the use of religious compensatory time off for employees to repay the hours used. The agency was concerned that a 26 pay period limit is unreasonably long, and does not balance an agency's responsibility to carry out its mission with an employee's right to make up the time in 26 pay periods. The agency points to other available flexibilities, including earning religious compensatory time in advance of when it is needed, using annual leave or advanced annual leave, leave without pay, compensatory time off in lieu of overtime pay, compensatory time off for travel, and adjusting work schedules.

We have evaluated these comments and are revising the proposed 26 pay periods before and 26 pay periods after the religious observance in which to earn religious compensatory time off to be 13 pay periods before and 13 pay periods after a religious observance in which to earn religious compensatory time off. That would allow a total period of 26 pay periods (about 1 year) during which the religious compensatory time off could be earned in connection with a religious observance. An agency may not prescribe a lesser or narrower timeframe in which an employee may earn religious compensatory time off before or after using it. This change will allow employees about a year to schedule and earn religious compensatory time off while making it more administratively feasible for agencies to administer.

An individual commenter was opposed to the 26 pay period limitation, citing that the limitation was too restrictive, and recommended the limitation be doubled. The commenter cites that some religious observances can be lengthy and questioned if adequate compensatory time off could be earned feasibly within the preceding 26 pay periods.

We are not adopting this recommendation in the final regulations.

Below we summarize and respond to other comments on the proposed regulations, organized by the affected regulatory section number.

A religious organization requested clarification that religious compensatory time off is not the only method by which agencies may accommodate employees who need to abstain from work due to a personal religious observance. The commenter requested we clarify this point by adding language to the final regulation.

OPM previously addressed this concern in the Supplementary Information of the proposed rule (78 FR 53697), in which (as part of a discussion of § 550.1006) we remind agencies and employees of the availability of additional workforce flexibilities, including annual leave, advanced annual leave, regular compensatory time off, alternative work schedules, and leave without pay, all of which may play a part in accommodating an employee's need to abstain from work for religious purposes.

We encourage employees to work with their agencies to make use of all appropriate workforce flexibilities to meet their needs. However, this final rule addresses only religious compensatory time off procedures, not the various options that an employee may choose when taking time off for a religious observance. We are not adopting this recommendation in the final rule.

Two agencies raised issues related to how earning religious compensatory time off hours (via work) is in lieu of receiving overtime pay. They pointed out that, contrary to the language in the proposed definition of overtime work in § 550.1003 stating that overtime pay would normally otherwise be payable for hours worked to earn religious compensatory time off, some employees do not normally receive overtime pay for work beyond their scheduled hours.

We agree that certain employees— e.g., members of the Senior Executive Service (SES), employees who reach the premium pay cap, employees who work during holiday hours, and part-time employees who perform nonovertime work beyond their scheduled tour—would not otherwise receive overtime pay for hours worked to earn religious compensatory time off. As further discussed later in this Supplementary Information, we are agreeing to delete language in the definition of overtime work in § 550.1003 stating that overtime pay would normally be received for the hours of work (but for crediting the hours as earned religious compensatory time off). However, as a matter of providing general clarification, we are adding language under § 550.1001 to make clear that hours worked to earn religious compensatory time off provide a time off credit in lieu of any pay that would otherwise be payable for that work.

We are also adding the word “personal” before “religious requirements” in two places in § 550.1001 in response to comments regarding the definition of religious compensatory time off in § 550.1003, as discussed below.

Two agencies asked for clarification regarding employees covered by the religious compensatory time off regulations. One agency requested the final regulations clarify that members of the Senior Executive Service (SES), employees in senior-level (SL) and scientific or professional (ST) positions, and wage grade employees are eligible to earn religious compensatory time off. Another agency raised SES coverage issues in the context of recommending that we delete “for which overtime pay would normally be payable” from the overtime work definition within § 550.1003 in the final rule, since SES members may earn religious compensatory time off but are not eligible to be compensated for overtime hours worked. We agree with the comments received from the agencies and are modifying the final regulations to clarify which employees are eligible to earn and use religious compensatory time off.

These final regulations clarify that coverage applies to each employee (as defined in 5 U.S.C. 2105) in or under an Executive agency (as defined in 5 U.S.C. 105) who has a scheduled tour of duty, which would include members of the SES, SL/ST employees, and prevailing rate (blue collar wage) employees who have a scheduled tour of duty.

Religious compensatory time off is provided under section 5550a, subchapter V of chapter 55 (Premium Pay) of title 5, United States Code. Section 5541(2) of the premium pay statute provides a definition for the term “employee” to be used generally for the purpose of subchapter V. This definition excludes certain categories of employees, including SES members (who are excluded under section 5541(2)(xvi) and (xvii)) and prevailing rate employees (who are excluded under section 5541(2)(xi), except for the purpose of applying sections 5544 and 5550b). However, based on the intent of Congress and the language in section 5550a stating that “any employee” may use religious compensatory time off “notwithstanding any other provision of law,” it has been OPM's longstanding position that the employee coverage exclusions provided within section 5541(2) do not apply in determining coverage under section 5550a. This means that members of the SES and prevailing rate employees are covered by section 5550a. OPM's position on employee coverage dates back to the early implementation of section 5550a shortly after its enactment on September 29, 1978 (Public Law 95-390). Further, Comptroller General Decision B-209327 (July 26, 1983) stated that “the language and the legislative history of section 5550a show an intent on the part of Congress to provide all Federal employees” with religious compensatory time off. It also found that the religious compensatory time off law applies to members of the Senior Executive Service, who are generally not covered by the premium pay subchapter.

An OPM regulation in 5 CFR 534.408(b) that was promulgated in 1995 further clarifies that SES members are eligible to earn religious compensatory time off, even though they are not eligible for overtime pay or eligible to earn compensatory time off in lieu of overtime premium pay.

Employees in senior-level (SL) and scientific or professional (ST) positions who are paid under 5 U.S.C. 5376 are not excluded from the definition of “employee” in 5 U.S.C. 5541(2). Therefore, there has never been any question about their coverage under the religious compensatory time off provision in section 5550a. SL/ST employees are also covered by the broad definition of “employee” OPM has always used (in lieu of the section 5541(2) definition) in determining coverage under section 5550a.

In these final regulations, we are modifying the regulations to clarify that the definition of “employee” in section 5541(2) does not apply in determining coverage under the religious compensatory time off provision.

Four commenters recommended the definition of overtime work be modified or deleted. Two agencies recommended modifying the definition by deleting “for which overtime pay would normally be payable”. One of the agencies recommended this language be deleted from the overtime work definition due to concerns that the language may be construed to prevent members of the Senior Executive Service (SES) from earning religious compensatory time off, since they are not eligible to earn overtime pay. The other agency noted that not all hours beyond an employee's scheduled tour of duty may normally be paid as overtime work.

We agree that this language could be misconstrued and are removing the language from the definition of overtime work, as suggested, in these final regulations.

One religious organization and one agency commented that the term overtime work can cause confusion as it relates to religious compensatory time off. The religious organization also stated that applying the term overtime work to work performed by part-time employees that is below applicable overtime thresholds is confusing. Both commenters suggested replacing the term with language that is more descriptive.

The term overtime work is used in the section of law, 5 U.S.C. 5550a, that authorizes the use of religious compensatory time off. The regulations necessarily use the same term. However, a special definition of the term is used for purposes of subpart J in order to include certain hours that would not be considered overtime work under the normally used definition. For example, the regulatory definition of overtime work in § 550.1003 in both the proposed and final regulations states that it is deemed to include any work performed by a part-time employee outside of his or her established part-time tour of duty—even though the additional work by a part-time employee may not be in excess of the daily/weekly overtime thresholds that are normally used to define “overtime work.” For these reasons, we are not adopting this recommendation, and the term overtime work continues to be used in the final rule.

An agency proposed adding language to the definition of overtime work to clarify that religious compensatory time off may be earned by working on a legal holiday “whether within or outside the employee's holiday clock hours.”

Consistent with OPM's longstanding guidance, the term overtime work is deemed to include work performed by an employee on a legal holiday when he or she is relieved from working on the holiday. In other words, the holiday hours in question are the hours within the scheduled tour of duty ( i.e., “holiday hours”) for which an employee normally receives either (1) holiday pay for hours during which the employee is excused from work or (2) holiday premium pay for working assigned hours. If an employee elects to work on a holiday in order to earn religious compensatory time off, the agency may authorize the employee to do so. This election can be made when an employee is not otherwise assigned to work the holiday hours. The employee is working even though he or she would ordinarily (but for the election to earn religious compensatory time off) be excused from duty. The employee will receive the regular holiday pay as if excused from duty. The work during holiday hours will be credited as religious compensatory time off and will not generate entitlement to holiday premium pay. The proposed regulations stated that overtime work includes “work performed by an employee on a legal holiday.” Based on the agency comment, we are modifying the definition of overtime work to clarify that we are referring to holiday hours within the employee's scheduled tour of duty—hours during which the employee would be excused from duty but for the employee's election (with agency approval) to perform work to earn religious compensatory time off. Any work on a holiday outside the designated holiday hours would be overtime work hours under the normally used definition; such work hours would generate overtime pay, not holiday premium pay. Thus, there is no need to “deem” such work to be overtime work for the purpose of converting overtime work to religious compensatory time off under subpart J.

Two commenters expressed concerns about the definition of religious compensatory time off —specifically, the language stating that “an employee whose personal religious beliefs require the abstention from work during certain periods of time may elect to perform overtime work in order to make up for the time the employee takes off to meet those religious requirements.”

An agency stated that the reference to religious “requirements” in the proposed definition of religious compensatory time off is an overstatement of why an employee chooses to observe certain religious activities or ceremonies. A commenter representing the Department of Justice requested clarification of the term “require” used in the same definition, noting that the term “require” should be understood to include both religiously mandated and religiously motivated conduct. The commenter stated that the Department of Justice has taken the position in past litigation that the Free Exercise Clause of the First Amendment and Religious Freedom Restoration Act (42 U.S.C. 2000bb) protect not only actions that are religiously mandated but also actions that are religiously motivated. The commenter cited a court case, DeHart v. Horn, 227 F.3d 47 (3d Cir. 2000)(en banc) to support its position that attempting to distinguish between religiously mandated and religiously motivated actions would improperly entangle agencies in deciding inherently religious questions, and limit the use of religious compensatory time off in a way that would be more narrow than intended. The commenter suggested language that could be added to the regulation to clarify that religiously motivated actions are a basis for using religious compensatory time off.

Section 5550a provides religious compensatory time off when an employee's “personal religious beliefs require the abstention from work during certain periods of time” (emphasis added). Section 5550a also refers to “time lost for meeting those religious requirements” (emphasis added). OPM's regulatory language uses the same terminology. By law, religious beliefs must require (or compel or impose an obligation on) the employee to be absent from work. However, it is significant that the referenced beliefs are not the official beliefs of an organized religion to which the employee may belong, but are the employee's “personal” religious beliefs. In other words, it is sufficient that the employee's personal religious beliefs cause the employee to feel an obligation that he or she should be absent from work for a religious purpose.

The DeHart decision dealt with the issue of whether Constitutional religious freedom protections applied only to the orthodox beliefs of an organized religion that imposed requirements (or commandments) on members of that religion or also to the non-orthodox beliefs of individual members of that religion. The court ruled that a claim for religious protection could not be dismissed solely because of the non-orthodox or non-mainstream character of the religious belief in question. It pointed to Supreme Court decisions stating that courts should not question the centrality of a particular religious belief or attempt to determine whether a belief is the correct interpretation of a religion's creed. Rather, courts should look at only two threshold requirements that must be met before beliefs are accorded First Amendment protection by a court: (1) The belief is sincerely held, and (2) the belief is religious in nature. Id. at 51.

As noted above, the law establishing religious compensatory time off for Federal employees makes clear that “personal” religious beliefs are a legitimate basis for claiming the right to use compensatory time off. The OPM regulations include the statutory language describing the condition that “personal religious beliefs require the abstention from work.” Given the concerns of commenters, however, we are adding language in the definition of religious compensatory time off to further clarify that the beliefs do not have to be in line with the official mandates of a religious organization to which the employee belongs and can spring from a sense of personal obligation. We are also inserting the word “personal” before “religious requirements” and before “religious obligations” in the definition of religious compensatory time off. Also, as noted earlier, we are inserting the word “personal” before “religious requirements” in two places in § 550.1001 (Purpose).

An agency recommended that the term “in advance” in § 550.1004(a) (dealing with employee requests to use religious compensatory time off) should be clarified in the final regulations to mean “with enough time to allow the agency to consider the request.” Each agency is responsible for establishing procedures under §§ 550.1005 and 550.1006. Under both the proposed and final § 550.1005(a), those procedures may include a requirement that an employee submit a request to use religious compensatory time off “sufficiently in advance to accommodate necessary scheduling changes without interfering with the agency's ability to efficiently carry out its mission.” We believe this gives agencies sufficient flexibility to handle employee requests; therefore, we are not making changes based on this recommendation.

We received one comment from an individual supporting the proposed requirement that an employee provide the agency with the name and/or description of the religious observance in his or her request, but an agency expressed concerns that an employee must submit this information. The agency noted that many Native American tribes participate in religious ceremonies that cannot be named or described.

An agency decision to allow an employee to earn and use religious compensatory time off is made on a case-by-case basis. Agencies need appropriate information in the employee's request in order to verify that the request meets all applicable requirements and to make determinations that will balance the religious needs of the employee with the agency's ability to accomplish its mission. The exact nature of the observance does not need to be described if there are religious prohibitions on doing so, as long as the request provides enough information for the agency to verify that it meets the requisite requirements.

Similarly, an individual commented that employees may practice a wide variety of religious practices, some of which may not be widely recognized. The commenter asked OPM to issue guidelines for defining religion.

OPM will not attempt to issue such guidelines. The law authorizing religious compensatory time off is based on an individual's “personal religious beliefs,” and OPM believes that case law sufficiently defines religious belief. (See also our earlier discussion in this Supplementary Information regarding the definition of religious compensatory time off. )

A commenter representing the Department of Justice also sought clarification on the meaning of “required” as used in § 550.1004(b)(1). As discussed in connection with the Department of Justice comments on the definition of religious compensatory time off in § 550.1003, the word “require” is used in the law authorizing religious compensatory time off (5 U.S.C. 5550a). The language in § 550.1004(b)(1) parallels the language in the law. Our changes to the definition of “religious compensatory time off” in § 550.1003 make clear that it is the employee's “personal” religious beliefs that create the requirement or obligation to be absent from work. We are making no additional changes in § 550.1004(b)(1).

A religious organization proposed adjustments be made for the make-up dates and times in an employee's original request due to unforeseen circumstances. They suggested that, in the event an adjustment to the dates and times of overtime work is required, an employee will submit to the supervisor for approval a revised schedule that reflects those changes.

We concur with this comment and are adding a new paragraph (d) in § 550.1004 to address submission of a revised schedule.

A religious organization expressed concern that many employees and managers may lack knowledge regarding religious compensatory time off and recommended adding regulations that address an employing agency's responsibility to inform employees regarding their right to use religious compensatory time off. The religious organization recommended establishing procedures patterned after those found in regulations implementing the Family and Medical Leave Act (FMLA) in 29 CFR part 825. Specifically, it recommended adding regulatory provisions that would require an agency (1) to notify an employee of the right to use religious compensatory time off “when the agency acquires knowledge that an employee's expected absence may be for a religious reason;” (2) to “responsively answer questions” about religious compensatory time off; and (3) to provide a notice to the employee when his or her request for religious compensatory time off is denied that states the reasons for the denial.

We are not making changes in the regulations based on the first two recommendations identified above. While we agree there is a need to ensure that agency managers and employees are informed regarding religious compensatory time off, we do not believe it is necessary to incorporate a formal notice requirement in regulations. Rather, consistent with its administration of other programs related to leave and other time off, OPM will take steps to educate agency managers and employees regarding the religious compensatory time off program—in particular, the changes made in these final regulations. We expect managers to responsively answer employee questions about all personnel matters and do not believe it is necessary to impose a regulatory requirement under each personnel program. With respect to the personnel programs it administers, OPM is in a position to adjust its guidance and educational efforts as necessary.

Ultimately, it is the responsibility of the employee to notify the supervisor of his or her intent to use religious compensatory time off as provided under § 550.1004. We cannot expect supervisors to be generally aware that a requested absence is due to an employee's personal religious obligation. The employee must choose whether to request religious compensatory time off and disclose information about his or her personal religious obligation. We note that OPM's FMLA regulations (5 CFR part 630, subpart L), which apply to most Federal employees, also do not place a regulatory requirement on agency managers to discern when FMLA leave may be implicated. (The FMLA regulations cited by the commenter are the Department of Labor's title 29 FMLA regulations, which are generally not applicable to Federal employees covered by title 5.)

We agree with the religious organization's third recommendation—that, if the employee is not granted religious compensatory time off, the agency should provide an explanation for denying the request. We are incorporating language within § 550.1005(b) of the final regulations to address this recommendation.

Two agencies commented on the ability of an employee to provide an oral request to use religious compensatory time off. The first agency recommended that the first sentence in § 550.1005(a) be changed to require all employees to submit a request in writing. The second agency also recommended modifying paragraph (a) of this section by replacing “the supervisor” with “the agency” to allow an agency that accepts an oral request to determine how best to document an oral request instead of the supervisor. The second agency stated that the agency, not the supervisor, is in the best position to determine how to document an oral request.

We do not concur with the first agency's recommendation to mandate that a request to use religious compensatory time off must be in writing. In extenuating circumstances, an employee may not be able to make a request in writing. However, we do agree that a written request should be the standard procedure. Accordingly, we are revising the proposed regulations to provide that a written request is required to the maximum extent practicable. Also, we are requiring the employee to provide required information as soon as practicable after an oral request is approved, instead of relying solely on the supervisor's documentation of the request. We do agree with the second agency's recommendation to change “the supervisor” to “the agency” in § 550.1005(a) to enable an agency to make a determination through its internal policy.

An agency also recommended changing the third sentence of § 550.1005(a) to require all employees to submit their requests to use religious compensatory time off sufficiently in advance to accommodate necessary scheduling changes, but we are not adopting this recommendation. Section 550.1004(a) requires employees to submit requests in advance of the religious observance. The third sentence in § 550.1005(a) gives agencies some discretion in determining how far in advance is necessary to avoid interfering with the agency's ability to efficiently carry out its mission. Whether a request has been made “sufficiently in advance” would depend on the exact fact situation, and thus OPM seeks to preserve agency discretion in this regard.

Two commenters requested clarification on the process for disapproving a request. One agency requested additional guidance on an agency's responsibility for denying a request. A second agency asked for clarification on several factors that may be relevant when considering an employee's request. It asked if a request could be denied if the employee has not fulfilled his or her responsibilities (such as providing the name of observance, dates and times, etc.) within his or her request; or if the request may be denied if the description provided is unclear, inadequate, or unreasonable. It also asked what the order would be for approving multiple time off requests of different types (from different employees) for a given day. The agency asked whether religious compensatory time off must be approved before other requests for time off from other employees for the same time period if an agency cannot approve all of the requests.

In considering agencies' ability to disapprove an employee's request related to religious compensatory time, a distinction must be made between a request to “use” religious compensatory time off ( i.e., take time off to engage in a religious observance) and a request to “earn” religious compensatory time off ( i.e., perform extra work that will be credited as religious compensatory time off hours to be applied against a past or future use of time off). Paragraphs (a) and (b) of § 550.1005 pertain to a request to “use” religious compensatory time off—in other words, the scheduling of time off to engage in a religious observance. Paragraph (c) of § 550.1005 pertains to the earning of religious compensatory time off hours. As further explained below, an agency can deny a request to “use” religious compensatory time off (as defined in § 550.1003) only if it would interfere with the agency's ability to efficiently carry out its mission. However, an agency has more flexibility in approving or denying the timing of overtime work to “earn” religious compensatory time off hours. When the regulations refer to a request for “religious compensatory time off” without making a distinction between “earning” versus “using” religious compensatory time off ( e.g., § 550.1004(a)), the regulation in question should be understood as referring to a request to “use” religious compensatory time off, which necessarily includes plans to “earn” the necessary hours through overtime work.

We are not providing additional guidance in the regulations on an agency's responsibilities for approving a request to use religious compensatory time off. As explained in § 550.1005(b), an agency must approve an employee's request based on personal religious requirements unless the agency determines that approving the request would interfere with the agency's ability to efficiently carry out its mission. That is to say, an agency may deny a request to use religious compensatory time off for a religious observance requiring absence from work at specific times based on the requester's sincerely held religious beliefs only if approving the request would interfere with the agency's ability to efficiently carry out its mission. If the information provided by the employee regarding the religious observance is not sufficient to determine whether the request is to use religious compensatory time off for a religious observance requiring absence from work at specific times based on the requester's sincerely held religious beliefs, an agency may request more information before acting on the request. The requirement that a denial under § 550.1005(b) must be based on an agency determination that the employee's absence would interfere with the accomplishment of the agency's mission is a reflection of the statutory standard for determining whether a request to use religious compensatory time off must be approved. In making determinations on approving multiple time off requests from different employees for the same day, agencies should use appropriate judgment. For example, an agency may not be able to approve an employee's request to use religious compensatory time off if the office has several employees who are ill and are using sick leave, and the employee who is requesting religious compensatory time off is needed in the interim to achieve the agency's mission. We note that employees have a statutory right to use sick leave.

A religious organization recommended an affirmative statement be included in the final regulations that a supervisor should not make any judgment about the employee's religious beliefs or his or her affiliation with a religious organization—a statement that has been included in OPM guidance, as documented on page 5 of the U.S. Government Accountability Office's report on religious compensatory time off (GAO-13-96, October 12, 2012).

OPM declines to make this change. Section 550.1005(b) states that an agency must approve an employee's request to use religious compensatory time off unless the agency determines that approving the request would interfere with the agency's ability to efficiently carry out its mission. OPM defines the term religious compensatory time off in § 550.1003 based on the statutory language. As we are clarifying in the final regulations, if an employee feels a personal obligation to be absent from work based on the employee's personal religious beliefs, the employee's request to use “religious compensatory time off” must be approved, absent a finding that an employee's absence would interfere with the agency mission. Since the employee's personal religious beliefs are at issue, the orthodox views of any religious organization with which the employee may be affiliated (in any degree) are not relevant. As Federal courts have ruled, neither courts nor Government officials should be making judgments about the validity or correctness of a person's sincerely held beliefs that are religious in nature. We have concluded that our clarification of the definition of religious compensatory time off in the final regulations sufficiently addresses the concerns expressed by the commenter.

An agency commented that § 550.1005(c) should be revised to clarify that agencies may authorize “up to” 26 pay periods prior to and after a religious observance for an employee to earn religious compensatory time off. While we are revising the timeframe to be 13 pay periods before or after a religious observance in these final regulations, the issue raised by the commenter is still relevant. The agency presumed that § 550.1005(c) allows agencies to set narrower (shorter) timeframes at their discretion.

The agency's presumption is incorrect, as this provision was intended to place an obligation on the agency to allow an employee to earn religious compensatory time off within the regulatory timeframe established in § 550.1006(c). Proposed § 550.1005(c) was not intended to permit agencies to establish a narrower timeframe in which an employee may earn religious compensatory time off. Proposed § 550.1005(c) must be read in conjunction with § 550.1006(b) and (c)(1), which allow an employee to earn religious compensatory time off within the regulatory timeframe. Agencies do not have the discretion to establish a narrower timeframe for earning religious compensatory time off hours. Within the regulatory timeframe, agencies do have some discretion in approving the specific occasions when an employee will be allowed to perform overtime work and earn religious compensatory time off hours based on mission requirements; however, that discretion does not extend to establishing a blanket policy that narrows the timeframe for earning hours set forth in § 550.1006. In response to the agency's comments, we are revising § 550.1005(c) to refer to the deadline in § 550.1006(c).

An agency asked whether, for a targeted religious observance, employees could earn religious compensatory time off in advance of the observance as well as after the observance to repay the time.

As provided under § 550.1006(a), the scheduling of time to earn and use religious compensatory time off by an employee is subject to the agency's approval as provided under § 550.1005. These regulations provide rules allowing an employee to earn religious compensatory time off (by working) before the religious observance, after the religious observance, or through a combination of time worked both before and after the religious observance. The employee may earn the hours in advance of using religious compensatory time off or earn the hours to repay the hours already used as religious compensatory time off. Agencies must approve an employee's request to earn religious compensatory time off as provided under § 550.1005(c) and monitor the employee's accumulation of such hours. The specific timing of when an employee will be allowed to earn religious compensatory time off by performing overtime work is a matter of agency discretion based on the needs of the agency. In other words, agencies can consider the specific work requirements of the individual employee's organization in deciding the specific times when the employee will be allowed to perform overtime work to earn religious compensatory time off hours.

An agency recommended the final rule require employees “to normally earn religious compensatory time off in advance of the religious observance.” Alternatively, if OPM chooses to retain the provision allowing an employee to earn religious compensatory time off after the given religious observance, the agency recommended that the final rule allow an agency to temporarily require an employee to earn religious compensatory time off in advance for any future religious observances if the employee did not perform the required overtime work to make up for the religious compensatory time off used previously ( e.g., where the agency had to retroactively charge the employee annual leave or leave without pay to recover the debt of hours, as provided in § 550.1006(c)(3)). The agency proposed that, if this retroactive charging occurred, the employee would be required to earn religious compensatory time off in advance for a 1-year period beginning on the date the action to make a retroactive correction was taken.

We disagree, and are not adopting these recommendations. We see no compelling reason to revise the longstanding policy that allows an employee to earn religious compensatory hours after using the hours for a religious observance. Nor do we, at this time, support limiting an employee's future options based on a past failure to repay hours within the regulatory timeframe. Any such failure results in an appropriate negative consequence—a retroactive application of annual leave (or other appropriate paid time off) or leave without pay. Any debt resulting from retroactive application of leave without pay is subject to debt collection.

An agency recommended changing the term “may” to “must” in § 550.1006(c)(3) (and similarly under § 550.1008(b)) with regard to agencies taking corrective action to eliminate or reduce the negative balance of religious compensatory time off by making a corresponding reduction in the employee's annual leave balance.

We believe the agency perceives there to be a discretionary authority for the elimination or reduction of the debt. The charge to annual leave is provided in the regulation as a “may” authority, but there still remains a mandatory requirement to recoup any debt owed with a “must” charge to leave without pay, thus creating a debt that must be repaid. While we agree it would be a reasonable agency policy to first charge annual leave to liquidate the debt, we use the term “may” to recognize that agencies may choose not to establish that policy or may fail to take this corrective action first before charging leave without pay. Allowing agencies the discretion to make an annual leave correction is consistent with longstanding OPM guidance. Accordingly, we are not adopting this suggestion.

An agency also recommended allowing employees to cover negative balances through credit hours earned, compensatory time off in lieu of overtime pay earned, compensatory time off for travel earned, or substitution of other paid time.

We agree with this recommendation and are making changes in the final regulations to allow for the substitution of credit hours, compensatory time off in lieu of overtime pay, compensatory time off for travel, and time-off awards to liquidate an employee's debt of hours. We are revising § 550.1006(c)(3) to provide that any positive balance of annual leave, credit hours, compensatory time off for overtime, compensatory time off for travel, or time-off awards may be applied to reduce the debt of hours before it is converted to a monetary debt. An agency may determine the order in which to apply these forms of paid time off to offset the negative religious compensatory time off balance. We are including only types of accrued paid time off that can be used for any purpose. Thus, we did not include sick leave or military leave, as these types of leave have certain parameters and conditions on their use.

Two agencies recommended establishing a limitation on the number of religious compensatory time off hours that may be accumulated. An individual commenter recommended placing a limitation on the amount of religious compensatory time off hours an employee may earn per pay period out of concerns that an employee could be tempted to work extreme hours per day or per week in order to earn enough compensatory time off for a religious observance.

We disagree, as there is no authority for a limitation on the number of hours that may be earned or used. In general, an agency must approve an employee's request to use religious compensatory time off, unless the agency determines that approving the request would interfere with the agency's ability to carry out its mission (see § 550.1005(b)). Further, as explained in the Supplementary Information regarding § 550.1007 in the proposed rule (78 FR 53698), agencies must monitor any accumulation to ensure that the employee is earning the religious compensatory time off for a specific religious observance and is not stockpiling the religious compensatory time off for unidentified purposes.

One agency recommended deleting the term “appropriate” for the type of records that must be kept under § 550.1007(a), which includes the name and/or description of the religious observance, the dates and times, and the amount of religious compensatory time off each employee earns and uses. The same agency also requested clarification on whether records may be paper-based or electronic.

We agree that the term “appropriate” is ambiguous and unnecessary, and we are deleting it in the final regulations. Each agency has the discretion to determine if records should be kept electronically or paper-based.

An agency recommended revising § 550.1007(b) from “an employee may accumulate only the amount needed to cover an approved absence for a religious observance that has already occurred” to read, “an employee may accumulate only the amount needed to fund a previously approved absence from work for a religious observance that has already occurred.”

We disagree in applying the term “fund” to these regulations. Employees accumulate hours to use for religious purposes. An employee may earn religious compensatory time off in advance or after it is used. Instead of becoming indebted, the employee is choosing to work overtime hours to cover periods of absences for religious observances.

An agency asked if earned religious compensatory time off that is not used as planned would be forfeited or paid out as compensatory time off in lieu of overtime pay, or any other form of time off.

As provided within § 550.1008, upon the employee's separation from Federal service or transfer to another Federal agency, the losing agency must compensate the employee for any positive balance to his or her credit. The agency must pay the employee for the hours of religious compensatory time off earned at the hourly rate of basic pay in effect at the time the religious compensatory time off was earned. Religious compensatory time off cannot be forfeited, paid as overtime premium pay, provided as compensatory time off in lieu of overtime pay, or converted to any other forms of time off.

An agency requested that § 550.1007(c)(1) be removed from the final regulations. This section provides that if the employee does not use his or her religious compensatory time off as planned, the positive balance may be redirected toward a future religious observance that has been approved, even if that future observance is beyond the normally applicable regulatory timeframe (notwithstanding § 550.1006(b)). The agency recommended removing this section because including it could leave room for error in its administration.

We are not adopting this recommendation to remove § 550.1007(c)(1) from the final regulations. It is appropriate to allow earned religious compensatory time off that has not been used as planned to be applied toward a future religious observance that has been properly requested and approved.

Two agencies provided additional comments on allowing the unused positive balance of religious compensatory time off to be redirected to a future religious observance when the employee was unable to use the hours earned as originally planned and approved. One agency agreed with allowing employees to redirect earned hours to a different religious observance, but objected to not having some kind of deadline for using the hours. It recommended establishing a 13 pay period deadline for using religious compensatory time off that has been previously earned, whether used as originally planned or for a different religious observance in the future. We understand this agency to be proposing that there be a strict rule that earned hours of religious compensatory time off must be used within 13 pay periods of when earned. Any different religious observance to which hours are redirected would have to occur within that 13 pay period window. The agency did not specify a proposed consequence for failure to meet that deadline. Another agency commented that there should be a cutoff period established for purposes of determining what happens to the religious compensatory time off if not used by a certain pay period.

We disagree with these comments. We do not support a cutoff date for eliminating a positive balance of unused religious compensatory time off via either forfeiture or cash payment. Earned religious compensatory time off hours are intended to be used for a religious observance. Under the regulations, the cashing out of unused religious compensatory time off hours occurs only when an employee leaves the agency (via separation or transfer), which maximizes the possibility that the hours will be used for the intended purpose and prevents abuse that might occur if employees were allowed to repeatedly cancel planned uses of religious compensatory time off and convert the hours to a cash payment after a certain amount of time has elapsed.

Under paragraph (c), if an employee does not use earned religious compensatory time off as planned, the employee may redirect the hours towards a future religious observance without regard to the normal bar on earning hours outside the regulatory timeframe. This is the preferred approach, since it ensures that the hours are used to meet religious obligations, as intended by the law. If an employee does not redirect the hours to another religious observance, the positive balance remains to the employee's credit until transfer or separation from the agency. An employee with a positive balance of hours will be barred from earning any additional religious compensatory time off until the hours have been used or the employee establishes the need for additional hours, as provided in the regulations. This approach prevents employees from stockpiling religious compensatory time off for undesignated purposes.

Given the comments received about a possible cutoff date for eliminating a positive balance of unused religious compensatory time off via either forfeiture or cash payment, we are adding a new paragraph (d) in § 550.1007 to make clear that there are no time limits on using accumulated religious compensatory time off—that unused religious compensatory time off hours remain to the employee's credit until used, or until the employee's separation or transfer.

An agency commented that when an employee separates or transfers, he or she should only be compensated for unused religious compensatory time off when, at the time the employee earned it, he or she did not expect to separate or transfer prior to the deadline for using it. The agency wanted to ensure that an employee does not stockpile religious compensatory time off hours when the employee does not expect to use those hours before separating or transferring and thus would receive payment for the unused hours.

Another agency submitted a similar comment concerning the stockpiling of hours. The agency recommended that agencies be provided the flexibility to liquidate via a cash payment unused religious compensatory time off. While the agency appreciates the opportunity employees have to retain unused time for future observances, it is concerned about the indefinite carryover of hours. Currently, the proposed regulations would only allow an agency to pay an employee for the unused hours upon separation or transfer to another agency. Instead of tracking the time annually or waiting for the employee to separate or transfer, the agency recommended the regulations allow agencies to determine if and when they would pay out the hours in situations other than separation or transfer. The agency asserted this flexibility would assist agencies in balancing timekeeping records if an agency has determined the unused timeframe to be excessive, since the hours cannot be forfeited.

We disagree. If an employee works the hours but does not use the hours ( i.e., has a positive balance), the employee should be compensated for the hours worked at the time of separation or transfer, as provided in § 550.1008(a). As for an employee potentially stockpiling hours, § 550.1007(c)(2) provides that an employee may accumulate additional religious compensatory time off hours only if needed to cover an approved period of absence for a future religious observance based on the specific dates and times that the employee has identified. This provision is meant to prevent the stockpiling of hours.

An agency also recommended revisions to § 550.1008(b) by replacing the term “may” to “must” when taking corrective action to eliminate or reduce a negative balance of religious compensatory time off by reducing the employee's annual leave balance upon separation or transfer.

The same agency made a similar recommendation for § 550.1006(c)(3), which we have already addressed. The charge to annual leave is provided in the regulation as an optional authority (using the language “may”), but there remains a mandatory requirement (using the language “must”) for an agency to recoup the debt owed with a charge to leave without pay, thus creating a debt that must be repaid.

It also recommended that the substitution of other forms of paid time off—such as earned credit hours, regular compensatory time off earned in lieu of overtime, or compensatory time off earned for travel—be allowed to repay a negative balance in addition to the use of annual leave.

We agree that the substitution of other forms of paid time off should be allowed. Consistent with the change we made in § 550.1006(c)(3), we are revising § 550.1008(b) to allow for the substitution of credit hours, compensatory time off in lieu of overtime pay, compensatory time off for travel, or time-off awards to liquidate the negative debt. However, the use of sick leave or military leave would not be appropriate, as there are parameters on the appropriate uses of these specific leave categories.

An individual commenter recommended that the final rule include dispute resolution or appeal procedures if an employee's request is denied under 5 CFR 550.1005(b). The commenter wanted to ensure a common knowledge of the appeals processs within agencies. We are not adopting this recommendation in the final regulations. Each agency has established appeal procedures that an employee must follow if he or she seeks to grieve an agency's denial of a request for religious compensatory time off. We have added language to § 550.1005(b) to provide that an agency must explain its reasoning for a denial of a request to use and/or earn religious compensatory time off.

An individual commenter was opposed to the establishment of religious compensatory time off, observing that some employees may not identify with a religious group. The commenter recommended a general compensatory personal time off bank be established instead. The commenter specifically cited the time off needed by working parents for various family commitments. The commenter stated that parents often have to opt out of school events and activities because of a lack of compensatory time available or having to use other leave, such as annual leave or sick leave. The commenter also expressed that the proposal could face appeals from employees who do not identify with a religious group or practice but routinely participate in humaniatarian efforts as a moral or ethical belief. The commenter recommended that those individuals should be allowed to earn compensatory time off without needing to qualify their efforts as “religious”.

We cannot adopt this recommendation because there is no statutory authority to establish a compensatory personal time off bank as described by the commenter, and Congress has mandated that agencies permit religious compensatory time off in the circumstances described by these regulations, unless doing so, in a particular instance, would interfere with the agency's mission. We note that employees may use certain leave or time off for general purposes, including the purposes cited by the commenter. For example, annual leave may used used for any purpose. While annual leave must normally be earned or accrued before it is used, it is possible for an agency to approve advanced annual leave. (See https://www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-sheets/advanced-annual-leave. ) Also, while regular compensatory time off in lieu of overtime under 5 U.S.C. 5543 must be earned in advance, it may also be used for any purpose.

An agency commented that the proposed regulations did not address the treatment of employees who owe religious compensatory time at the time the final regulations become effective. The agency noted that some employees may have used religious compensatory time off more than 26 pay periods prior to the effective date of the final regulations and still not have worked the time to make it up. It asked whether such employees would have an additional 26 pay periods to repay the debt of hours or if the employing agency would have the authority to establish an alternative deadline. The agency stated that it favored giving such employees a reasonable period to repay the hours owed (by performing work).

We agree that clarification is needed regarding the treatment of the employees described by the agency who have a negative balance of religious compensatory time off when the final regulations take effect—whether the period of time since the religious compensatory time off was used exceeds the regulatory timeframe (originally proposed as 26 pay periods, but established as 13 pay periods in these regulations) or is some lesser period of time. This comment also brought to light that the proposed regulations did not specifically address employees who have a positive balance of religious compensatory time off when the final regulations take effect. Therefore, we are adding a new § 550.1010 to provide transitional rules for employees who have either a negative or positive balance of religious compensatory time off as of the effective date of the final regulations.

Paragraph (b) of § 550.1010 states that, for an employee who has a negative balance ( i.e., debt) of used but not-yet-earned religious compensatory time off hours as of the effective date of the final regulations, the 13 pay period limitation in § 550.1006(c) is applied as if the effective date were the date on which all the hours of religious compensatory time off (represented in the negative balance) were used. Thus, employees will have a full 13 pay periods to earn the needed number of religious compensatory time off hours. Since these regulations are changing the rules midstream for these employees, we believe it is appropriate to start the clock when the new regulations take effect.

Paragraph (c) of § 550.1010 addresses employees who have a positive balance of earned but unused religious compensatory time off hours as of the effective date of the final regulations. It provides that the employing agency must confirm and document that the hours are connected to one or more specific religious observances requiring the employee's absence from work in order to meet the employee's personal religious requirements. The agency must give the employee an opportunity to direct all unused hours to such a future religious observance. If the employee does not direct all of those unused hours, the employee may not earn any additional religious compensatory time off hours until the employee establishes a need to earn such time off hours, consistent with § 550.1007(c)(2).

In addition to the proposed revision of subpart J of part 550 of title 5 of the Code of Federal Regulations, we also proposed to modify the definitions of rate of basic pay in § 550.103 and firefighter in § 550.1302. We did not receive any comments on those proposed revisions. Therefore, these final regulations are making final the additional miscellaneous proposed changes.

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” under Executive Order 12866 and has been reviewed by the Office of Management and Budget.

This final rule is not subject to the requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because the rule is related to agency organization, management, or personnel.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because it will apply only to Federal agencies and employees.

This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act.

For reasons stated in the preamble, OPM is amending part 550 of title 5 of the Code of Federal Regulations as follows:

In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, DHS modifies a current DHS system of records titled, “DHS/ALL-018 Grievances, Appeals, and Disciplinary Action Records System of Records,” last published October 17, 2008. The system of records is now renamed “DHS/ALL-018 Administrative Grievance Records.” This system of records covers all current and former DHS employees, except for employees of the OIG, who have submitted grievances under DHS's Administrative Grievance System or in accordance with a negotiated grievance procedure. The records are maintained and used by the Department to resolve employee concerns about working conditions, the administration of collective bargaining agreements, employee/supervisor relations, work processes, or other similar issues. The name and scope of this modified system of records has been changed. Further, this system has been modified in an effort to not duplicate other DHS and government-wide SORNs. This updated SORN is published elsewhere in this issue of the Federal Register .

DHS is issuing this final rule to remove all exemptions previously applied to this system. This will provide individuals with greater access to administrative grievance records than previously provided. The previously issued final rule for this SORN, found at 74 FR 42576 (August 24, 2009), will no longer be in effect once this new final rule is issued.

These regulations are being published as a final rule because the amendment does not impose any requirements or adverse impacts on any member of the public. This amendment is the most efficient means for DHS to implement its internal requirements for complying with the Privacy Act.

Pursuant to the administrative procedure provisions in 5 U.S.C. 553, DHS finds good cause that notice and other public procedure with respect to this rule are unnecessary and finds good cause for making this rule effective on the date of publication in the Federal Register . DHS finds good cause because (a) this updated SORN narrows the scope of records previously applied, since it no longer covers records of disciplinary actions, appeals, or misconduct; (b) such records removed by the existing SORN are already covered by an existing SORN depending on the type of inquiry, action, or appeal ( e.g., DHS/ALL-020 Department of Homeland Security Internal Affairs, OPM/GOVT-1 General Personnel Records; OPM/GOVT-3 Records of Adverse Actions, Performance Based Reduction in Grade and Removal Actions, and Termination of Probationers; EEOC/GOVT-1 Equal Employment Opportunity in the Federal Government Complaint and Appeal Records; and MSPB/GOVT-1 Appeals and Case Records); and (c) and exemptions will no longer apply to this updated SORN, thereby providing individuals with greater access to administrative grievance records than previously provided. As a result, no new requirements, restrictions, or adverse impacts are imposed on any member of the public.

In accordance with Executive Order 12866, it has been determined that this rule is not a “significant regulatory action” and, therefore, does not require a Regulatory Impact Analysis.

The regulation 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. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply.

In accordance with the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), DHS has determined that this rule will not impose new record- keeping, application, reporting, or other types of information collection requirements.

For the reasons stated in preamble, DHS amends chapter I of title 6, Code of Federal Regulations, as follows:

Background

Yamaha Motor Corporation, U.S.A. (Yamaha) applied to the FAA on April 28, 2017 for special class type certification under Title 14, Code of Federal Regulations (14 CFR) 21.17(b) for the Fazer R Unmanned Aircraft System (UAS). The Fazer R UAS (Fazer R) consists of the Unmanned Aircraft (UA), flight transmitter ground control station, and payload spray system. The Fazer R is a vertical take-off UAS that is of the traditional main/tail rotor helicopter design. Its intended primary use is conducting crop-spraying operations in the agricultural industry.

The aircraft and payload spray system would weigh approximately 244 pounds with full fuel and oil tanks, and be able to carry a payload of approximately 105 pounds. The main rotor is just over nine feet in diameter, and the aircraft would be just over three feet high and 12 feet long with a carbon frame. The aircraft would be powered by a fuel-injected 2-cylinder engine running on regular gasoline. The aircraft would have a “Turn Assistance” function that enables automatic turning to facilitate back-and-forth agricultural operations.

Notice of proposed airworthiness design criteria for the Yamaha Fazer R UAS was published in the Federal Register on May 1, 2018 (83 FR 19021). The FAA received comments from two commenters.

One individual requested the FAA consider limiting operations to remotely populated areas and requiring primary operations of spraying, sensing, and imaging and two persons for operation. The commenter stated these considerations are necessary because of the agricultural requirements for the aircraft. The commenter also stated these requirements should be the minimum requirements for all UAS, and not only the Fazer R.

Under the Concept of Operations submitted by the applicant for the Fazer R, the primary operations are agricultural spraying, sensing, and imaging in remote, uninhabited areas such as farms and fields, and the aircraft has a required minimum crew of two persons. No changes to these airworthiness criteria are necessary as a result of this comment. The request to apply these requirements to all UAS is beyond the scope of this notice.

Another individual requested the FAA consider the possible risks—fuel and security of the system—associated with the insecticide carried by the Fazer R.

The applicant's documentation identifies and provides appropriate mitigation for these risks. No changes to these airworthiness criteria are necessary as a result of this comment.

After review of the comments, the FAA sees no need to modify the proposed airworthiness criteria. Accordingly, the airworthiness criteria, as proposed, are adopted as the certification basis for the Yamaha Fazer R under the provisions of 14 CFR 21.17(b).

The FAA finds that compliance with the following will appropriately mitigate the risks associated with the proposed design and Concept of Operations (CONOPS) and provide an equivalent level of safety to existing rules:

Concept of Operations: The applicant must define and submit to the FAA a (CONOPS) proposal describing the intended Fazer R operation in the National Airspace System (NAS).

Accepted Means of Compliance:

1. The applicant must comply with these airworthiness criteria using a means of compliance, which may include consensus standards, accepted by the FAA.

2. The applicant requesting acceptance of a means of compliance must provide the means of compliance to the FAA in a form and manner acceptable to the FAA.

Operational Envelope and Limitations: The operational envelope and operational limitations must be defined as follows:

1. The Fazer R must be shown to perform as intended within the defined operational envelope and operational limitations.

2. The Fazer R must be consistently and predictably controllable and maneuverable within the operating envelope, including:

(a) At all loading conditions for which certification is requested;

(b) During all phases of flight; and

(c) During configuration changes.

Instructions for Continued Airworthiness: The applicant must prepare Instructions for Continued Airworthiness (ICA) for the Fazer R that are acceptable to the FAA. The ICA may be incomplete at type certification if a program exists to ensure their completion prior to delivery of the first Fazer R or issuance of a standard certificate of airworthiness, whichever occurs later.

The ICA must contain a section titled Airworthiness Limitations that is segregated and clearly distinguishable from the rest of the document. This section must set forth each mandatory replacement time, structural inspection interval, and related structural inspection procedure required for type certification. If the ICA consist of multiple documents, the section required by this paragraph must be included in the principal manual. This section must contain a legible statement in a prominent location that reads “The Airworthiness Limitations section is FAA approved and specifies maintenance conducted under §§ 43.16 and 91.403 of Title 14 of the Code of Federal Regulations unless an alternative program has been FAA approved.”

Flight Manual: The applicant must provide a UAS Flight Manual with each Fazer R. The UAS Flight Manual must contain the following information—

(a) Fazer R operating limitations;

(b) Fazer R normal and emergency operating procedures;

(c) Performance information;

(d) Loading information; and

(e) Other information that is necessary for safe operation because of design, operating, or handling characteristics.

Flight Testing: The Fazer R must successfully complete at least 150 hours of flight testing to determine whether there is reasonable assurance that the Fazer R, its components, its equipment, and structures are adequate, reliable, and function properly. The testing must consist of:

1. At least 50 hours with the Unmanned Aircraft (UA) at 5 percent over maximum weight at critical weight, altitude, and temperature; and

2. At least 100 hours in normal operations.

Critical Parts: A critical part is a part, the failure of which could have a catastrophic effect upon the UAS. If the type design includes critical parts, a critical parts list must be established.

The applicant must develop and define inspections or other procedures to prevent failures due to degradation of critical parts. Each of these inspections or procedures must be included in the Airworthiness Limitations Section of the ICA.

Controls:

1. Flight Controls: The applicant must design the flight control systems and control station to:

(a) Operate easily, smoothly, and positively enough to allow proper performance of their functions, and

(b) Protect against likely hazards.

2. Flight Crew Interface: The control station must be designed to allow the flight crew to perform their duties and to perform any maneuvers within the operating envelope of the Fazer R, without excessive concentration, skill, alertness, or fatigue considering the intended operating conditions for the control station.

3. Equipment: The applicant must define and install necessary equipment so the flight crew can monitor and perform defined tasks associated with the intended functions of the systems and equipment.

4. Flight Crew Error: The UAS must be designed to minimize flight crew errors which could result in additional hazards.

Flight Termination System:

1. There must be a means for the flight crew to quickly and safely terminate the UA flight.

2. The Fazer R must have a means to safely terminate the UA flight when safe operation cannot continue or be maintained.

3. There must be means to prevent inadvertent operation of the flight termination system.

Engine and Engine Control System:

1. The Fazer R Engine and Engine Control System includes each component necessary for propulsion or which affects propulsion safety.

2. The Fazer R Engine and Engine Control System installation must be designed, constructed, installed, and maintained to ensure its continued safe operation within the operational envelope between normal inspections and overhauls.

3. The Fazer R Engine Control System including any Engine Control Unit (ECU) software or electronic hardware must be designed and developed using methods accepted by the FAA.

4. The applicant must identify the Fazer R Engine and Engine Control System failure modes and effects that may result in a catastrophic condition to the UAS. The applicant must mitigate each hazard to a level acceptable to the FAA.

5. The Fazer R Engine and Engine Control System operability, durability and reliability must be demonstrated.

Powerplant Installation:

1. The powerplant installation includes each part of the Fazer R (other than the main and auxiliary rotor structures) that—

(a) Is necessary for propulsion;

(b) Affects the control of the major propulsive units; or

(c) Affects the safety of the major propulsive units between normal inspections or overhauls.

2. Each component of the powerplant installation must be constructed, arranged, and installed to ensure its continued safe operation between normal inspections or overhauls for the range of temperature and altitude for which approval is requested.

Systems and Equipment: This requirement applies to the Fazer R unless another requirement has been imposed for a specific piece of equipment, system, or systems. The Fazer R systems and equipment, including any software or electronic hardware, must be designed and developed using methods accepted by the FAA.

1. The systems and equipment required for a Fazer R to operate safely in the kinds of operations for which certification is requested must be designed and installed to perform their intended function throughout the operating and environmental limits for which the Fazer R is certificated.

2. All systems and equipment not covered by paragraph 1 of this section, considered separately and in relation to other systems, must be designed and installed so their operation or failure does not have an adverse effect on the Fazer R.

Communication:

1. The applicant must define the type, methods, and operational limits of communication, including the mitigation of any hazard created by any loss of communication between the flight crew and between the flight crew and the Fazer R.

2. A means must be provided to allow for all communication necessary to safely operate the UA.

Interference from External Sources: The design must minimize the risks associated with interference to Fazer R electronic systems and networks from external sources.

Interference with Other Aircraft or Obstacles: The Fazer R must have a means to remain well clear of obstacles and other aircraft for its intended operation and airspace to avoid the risk of collision.

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 787 series airplanes. The NPRM published in the Federal Register on January 10, 2018 (83 FR 1198). The NPRM was prompted by reports of hydraulic leakage caused by damage to aileron and elevator actuators from lightning strikes. The NPRM proposed to require a records check to inspect for certain parts, a detailed inspection of aileron and elevator PCUs, and applicable on-condition actions.

We are issuing this AD to address hydraulic leakage in aileron and elevator PCUs, which, when coupled with an independent subsequent loss of two hydraulic systems, could result in an inability to maintain aileron or elevator actuator stiffness and lead to airplane control surface oscillations, which could damage the control surfaces and cause reduced controllability of the airplane.

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

The Air Line Pilots Association, International (ALPA) and commenter Leif Miller indicated their support for the NPRM.

Oman Air requested that the proposed AD be revised to allow actions in accordance with “any later FAA-approved revision of” the service information. The commenter noted that Boeing was considering issuing updated service information to incorporate differences between the service information and proposed AD.

We agree to clarify. We may not refer to any document that does not yet exist. In general terms, we are required by Office of the Federal Register (OFR) regulations to either publish the service document contents as part of the actual AD language; or submit the service document to the OFR for approval as referenced material, in which case we may only refer to such material in the text of an AD. The AD may refer to the service document only if the OFR approved it for incorporation by reference. See 1 CFR part 51. To allow operators to use later revisions of the referenced document (issued after publication of the AD), either we must revise the AD to reference specific later revisions, or operators must request approval to use later revisions as an alternative method of compliance with this AD under the provisions of paragraph (n) of this AD.

However, we note that Boeing has issued Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 003, dated December 3, 2018. This revised service information clarifies instructions and requirements, revises the effectivity to account for part rotability (which does not add airplanes to this AD, since we already included all The Boeing Company Model 787 series airplanes in our applicability), and corrects errors in certain part numbers. This new service information does not include any new actions. We have revised this AD to refer to Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 003, dated December 3, 2018, and revised paragraph (l) of this AD to provide credit for actions performed using Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 002, dated July 19, 2017. We have also removed paragraphs (k)(2) and (k)(3) of the proposed AD, as the revised service information makes them unnecessary, and revised the language in paragraph (k)(1) of this AD based on the revised compliance language in the new service information.

Oman Air, All Nippon Airways (ANA), and Xiamen Airlines requested that we clarify the instructions related to the records check specified in paragraph (g) of the proposed AD. The commenters noted that Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 002, dated July 19, 2017, incorrectly lists the PCU remote electronics unit (REU) assembly part number, rather than the PCU part number. The commenters also noted that the part numbers of the PCU REU assembly are not available on the airplane readiness log part list (ARL). ANA added that the PCU REU assembly part number is written in ink and may no longer be legible after extended periods on the airplane.

ANA and Xiamen Airlines added that the PCU part number cannot be determined easily when the part is on the airplane, due to limited clearance. ANA asked that the proposed AD be revised to allow using a borescope inspection (BSI) tool to determine the aileron PCU part number.

Oman Air suggested the applicability of the proposed AD be revised to list only the airplanes having line numbers known to have been delivered with affected parts. Oman Air added that the 787 illustrated parts data (IPD) could be revised to prohibit the installation of the affected parts on airplanes that were not delivered with affected parts.

We agree to clarify. As noted earlier, we have revised this AD to refer to Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 003, dated December 3, 2018. This service information includes the affected PCU numbers and a note that allows the use of a BSI tool to determine the aileron and elevator PCU part numbers.

We disagree with Oman Air's request to revise the applicability. The affected PCUs are rotable parts, and we have determined that these PCUs could later be installed on airplanes that were initially delivered with acceptable PCUs, thereby subjecting those airplanes to the unsafe condition. In addition, we do not control approval of the IPD and cannot require Boeing to update this document. We have not changed this AD regarding these issues.

ANA and United Airlines (UAL) requested that we extend the compliance time for reporting discrepant findings from 30 days to 60 days. ANA noted that the work is outsourced to a maintenance shop, and it takes time to receive the results from that shop. UAL stated that the serial number of the discrepant PCU is most easily found when the PCU is removed from the airplane, which may take up to one month after a leakage rate discrepancy is found. As an alternative, UAL suggested that the 30-day compliance time for reporting could be counted from the day the discrepant part is removed, rather than the day of the leakage rate inspection.

We agree with the commenters' requests to extend the compliance time for reporting for the reasons provided. We have revised paragraphs (i)(1) and (i)(2) of this AD to require reporting within 60 days, rather than 30 days.

UAL requested that we clarify whether reporting is required for discrepant findings, if those findings were found during the accomplishment of Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 001, dated September 27, 2016 (paragraph (l) of the proposed AD allows credit for the actions specified in paragraph (g) of this AD if they were accomplished using Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 001, dated September 27, 2016), which does not require reporting.

We agree to clarify. As specified in paragraph (l) of the proposed AD, operators get credit for the actions specified in paragraph (g) of this AD, if those actions were done previously. Therefore, if an operator used Issue 001 of the service information (which does not include reporting), they would not be able to take credit for the reporting requirement as specified in paragraphs (g) and (i) of this AD. As noted by paragraph (i)(2) of this AD, reporting of discrepant findings is required for inspections done before the effective date of this AD.

We have moved the text from paragraph (l) of the proposed AD to paragraphs (l)(1) and (l)(2) of this AD. For clarity, we have also added text to paragraph (l)(1) of this AD to specify that reporting must still be done if Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 001, dated September 27, 2016, was used.

CCA/AMECO requested that we clarify whether we intend to include the reporting specified in the proposed AD as a requirement in this final rule.

We agree to clarify. Paragraph (g) of this AD requires reporting, among other actions, and paragraph (i) of this AD specifies the compliance times for the reporting. As noted earlier, the compliance time for this reporting has been extended from 30 days to 60 days in this final rule.

American Airlines (AAL) requested that we clarify paragraph (i) of the proposed AD to more clearly state what constitutes a “discrepant” finding that must be reported. AAL noted that the service information and proposed AD do not define “discrepant”, and stated that this could lead to confusion regarding what needs to be reported.

We agree to clarify. As noted earlier, we have revised this AD to refer to Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 003, dated December 3, 2018, which specifies reporting based on various conditions. Those conditions are specified in the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 003, dated December 3, 2018, with actions stating to “report all discrepant findings.” We have not changed this AD regarding this issue.

ANA and AAL requested that the proposed AD be revised to allow the installation of a “non-affected” PCU. ANA noted that Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 002, dated July 19, 2017, states to replace certain PCUs with a serviceable PCU, but does not allow installing non-affected PCUs having part number C99160-004. AAL added that installation of improved non-affected parts is not allowed by the proposed AD.

We agree with the commenters' requests. As stated earlier, we have revised this final rule to refer to Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 003, dated December 3, 2018; among other changes, this revision of the service information allows the installation of non-affected PCUs.

ANA noted that the “Spare Interchangeability” column of Table 2 in Appendix D of Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 002, dated July 19, 2017, states that it lists the elevator PCU part numbers, but it really lists the aileron PCU part numbers. We infer that the commenter is asking us to correct this information.

We agree with the commenter's request. As stated earlier, we have revised this final rule to refer to Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 003, dated December 3, 2018; among other changes, this revision of the service information corrects the specified part numbers.

Boeing requested that we revise the fourth paragraph under “Differences Between Proposed AD and the Service Information” of the proposed AD. Boeing asked that text stating “any leakage measured during the detailed inspection of the aileron PCU or elevator PCU that is more than 6 drops (or 9 drops, depending on the inspection) . . .” be revised to state “any leakage measured during the detailed inspection that is more than 6 drops for the aileron PCU (or 9 drops for the elevator PCU).” Boeing requested a similar language revision for the last sentence of that paragraph. Boeing stated that the language in the NPRM was not clear and could cause confusion regarding when repair or replacement is needed.

We acknowledge the commenter's request and agree that the proposed language would provide clarity. However, the “Differences Between Proposed AD and the Service Information” paragraph is not carried over to this final rule. We note that the revised service information clearly identifies the conditions that require repair or replacement. We have not changed this AD in this regard.

Boeing requested that we revise the Discussion sentence of the proposed AD to remove the word “excessive” when referring to hydraulic fluid leakage levels. Boeing noted that the reported in-service events found only minor leakage, not excessive leakage. Boeing added that the actions in the proposed AD are intended to prevent excessive leakage.

We acknowledge the commenter's request and agree that the proposed language would provide clarity. However, the sentence in question is not carried over to this final rule. We have not changed this final rule in this regard.

Boeing requested that we revise paragraph (h) of the proposed AD to specify that removal “and replacement” of all affected PCUs “with unaffected PCUs” terminates the requirements of paragraph (g) of this AD until an affected PCU is installed, “then the requirements of paragraph (g) are again required.” Boeing suggested that revising the language to add the quoted text would help to clarify that replacement with an affected PCU would require operators to perform inspections and on-condition actions on that affected PCU.

We agree to clarify. As the commenter noted, if an affected PCU is installed on an airplane, it is subject to inspections and on-condition actions. Paragraph (j) of this AD specifies the conditions under which an affected PCU may be installed on an airplane, including that the PCU is inspected and all applicable on-condition actions are done as specified in paragraph (g) of this AD, and discrepant findings are reported as required by paragraph (g) of this AD at the applicable times specified in paragraph (i) of this AD. We have revised paragraph (h) of this AD to clarify that once an affected part is installed on an airplane, the actions in paragraph (j) of this AD must be done on that airplane.

Boeing requested that we revise the Interim Action paragraph in the NPRM to say “the manufacturer may develop a modification” instead of “the manufacturer is currently developing a modification” and “if this modification is developed” instead of “when this modification is developed.” Boeing noted that it is reviewing the potential for a modification that may be able to address the identified unsafe condition.

We agree with the commenter for the reasons stated. We have revised the Interim Action paragraph of this final rule accordingly.

Boeing requested that we revise the applicability of our proposed AD from “all The Boeing Company Model 787 series airplanes” to “all The Boeing Company Model 787-8 and 787-9 airplanes.” Boeing stated that the approved type design allows installation of affected PCUs on only Model 787-8 and 787-9 airplanes, not on Model 787-10 airplanes.

We disagree with the commenter's request. As noted in the proposed AD, the affected PCUs are rotable parts. Although they are not part of the approved type design, the affected PCUs could be physically installed on Model 787-10 airplanes. Therefore, we included these models in our applicability to ensure the unsafe condition is addressed if an affected PCU is installed on a Model 787-10 airplane. We have not changed this AD regarding this issue.

Oman Air requested that paragraph (j)(1) of the proposed AD be revised to revise the requirement to inspect an affected PCU “after installation and before further flight” if the PCU is a repaired or overhauled unit coming from an authorized shop. Oman Air suggested that for units removed from airplanes in a serviceable condition, then reinstalled, the initial inspection for such PCUs be required within 6,000 flight hours after the last inspection, rather than before further flight.

We disagree with the commenter's request. Affected PCUs are subject to the unsafe condition described in this AD. The repair or overhaul may have been unrelated to the unsafe condition, so an inspection before further flight is necessary to ensure that a PCU with unacceptable levels of hydraulic leakage is not installed on an airplane affected by this AD. We have not changed this AD regarding this issue.

Oman Air requested that we provide clarification on paragraph (j) of the proposed AD. Oman Air asked if an affected but serviceable PCU is installed during unscheduled maintenance, would that PCU only need to be inspected and tested before further flight (rather than repetitively as specified in paragraph (g) of the proposed AD). The commenter noted that in order to determine which actions are applicable for a given airplane, an operator must know the part number and condition of both the replaced PCU and the other PCU on that surface (aileron or elevator). Oman Air noted that the inspection requirements and on-condition actions for the replacement PCU are conditional based on the leak test results of the other PCU on that surface.

We agree to clarify. Paragraph (j) of this AD is intended to allow operators to install an affected PCU, provided it is inspected as required by paragraph (g) of this AD after installation and prior to flight. An affected PCU installed as specified in paragraph (j) of this AD is subject to the repetitive inspections and applicable on-condition actions required by paragraph (g) of this AD, and the reporting required by paragraph (g) of this AD that must be done at the applicable times specified in paragraph (i) of this AD. As the commenter noted, in order to comply with paragraph (g) of this AD, an operator must know the part number of both PCUs on a given surface, as well as the status of any applicable leakage tests on each PCU. We have clarified the language in the introductory text of paragraph (j) and in paragraphs (j)(1) and (j)(2) of this AD.

AAL requested that we revise paragraph (j) of the proposed AD to not allow the installation of an affected PCU. AAL suggested that if installing a single affected PCU in combination with unaffected PCUs presents a significant enough unsafe condition to require repetitive inspections of the affected PCU, then we should prohibit the installation of affected PCUs.

We disagree with the request. The provisions in paragraph (j) of this AD allowing the installation of affected PCUs, provided inspections and on-condition actions are done on the PCUs, are intended to provide flexibility to operators while ensuring an acceptable level of safety. A configuration with a mix of affected and unaffected PCUs is acceptable provided the actions in paragraphs (j)(1) and (j)(2) of this AD are done. The intent of this AD is to address the identified unsafe condition for PCUs subject to the noted hydraulic fluid leakage while those parts are used in service. We have not changed this AD regarding this issue.

AAL requested that we revise the proposed AD to allow the installation of one unaffected PCU on a control surface to terminate the inspections required by paragraph (g) of the proposed AD. AAL stated that it understands the unsafe condition happens only when both PCUs are leaking hydraulic fluid due to damage incurred by a lightning strike. AAL added that the improved, unaffected PCUs include measures to eliminate the lightning strike damage concern.

We disagree with the commenter's request. This AD is considered interim action intended to address the unsafe condition. Allowing the installation of one unaffected PCU to terminate the repetitive inspections and on-condition actions on the affected PCU would not adequately address the unsafe condition. The actions required by this AD will remove the affected parts from service or mitigate the unsafe condition. If the manufacturer develops a modification that will address the unsafe condition identified in this AD, we might consider additional rulemaking. We have not changed this AD regarding this issue.

ANA requested that we clarify whether certain methods of identifying affected part numbers are acceptable for compliance with the proposed AD. ANA noted that on its airplanes, the part number of the PCU is written in permanent marker and may not be legible after extensive time on the airplane. ANA noted that Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 003, dated December 3, 2018, states to inspect the elevator and aileron PCU part numbers in accordance with certain tasks. ANA added that related appendixes list both the PCU part numbers and the PCU assembly part numbers; the assembly part numbers are stamped on identification or mod plates, and can be easily found and read. ANA also noted that Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 003, dated December 3, 2018, added a note stating that a records review is acceptable for parts identification of the PCU part number, but the service information did not state whether the PCU assembly part number is an acceptable means of identifying affected parts. ANA asked if it is acceptable to use the PCU assembly part numbers for identification of affected parts, or if it would have to request an alternative method of compliance (AMOC) to do so. ANA also asked if using a records check to identify the PCU assembly part numbers would be allowed without obtaining an AMOC.

We agree to clarify. The intent of Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 003, dated December 3, 2018, is to allow flexibility in determining the PCU part numbers. We have added paragraph (k)(2) to this AD to specify that using the PCU assembly part number identified in the applicable Appendix of Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 003, dated December 3, 2018, is acceptable to determine if the PCU is an affected part; the PCU or PCU assembly part number may be determined through an inspection or records check.

CCA/AMECO requested that we provide clarification regarding the compliance time for the actions specified in paragraph (g) of the proposed AD. The commenter noted that it has several airplanes that have exceeded the initial compliance times noted in Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 003, dated December 3, 2018.

We agree to clarify. Paragraph (k)(1) of this AD provides relief to the compliance times in the service bulletin by allowing times to be counted from the effective date of this AD instead of from “the Issue 002 date of this service bulletin.”

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

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

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

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

We reviewed Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 003, dated December 3, 2018. The service information describes procedures for an inspection or records check to inspect for certain parts, detailed inspections for external leakage of the aileron and elevator PCUs, reporting of PCUs with discrepant leakage, and replacement if necessary. 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.

We consider this AD interim action. The manufacturer may develop a modification that will address the unsafe condition identified in this AD. If this modification is developed, approved, and available, we might consider additional rulemaking.

We estimate that this AD affects 82 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary reporting that would be required. We have no way of determining the number of aircraft that might need these reports:

We have received no definitive data that would enable us to provide cost estimates for the records check or certain on-condition actions specified in this AD.

According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW, Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

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.

We are 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 is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.

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) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

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

(4) 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 document and additional information concerning OFAC are available on OFAC's website ( www.treasury.gov/ofac ).

On September 12, 2018, the President, invoking the authority of, inter alia, the International Emergency Economic Powers Act (50 U.S.C. 1701-1706) (IEEPA), issued Executive Order 13848 (83 FR 46843, September 14, 2018) (E.O. 13848).

In E.O. 13848, the President determined that the ability of persons located, in whole or in substantial part, outside the United States to interfere in or undermine public confidence in United States elections, including through the unauthorized accessing of election and campaign infrastructure or the covert distribution of propaganda and disinformation, constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States. Accordingly, the President then declared a national emergency to deal with that threat.

OFAC is issuing the Foreign Interference in U.S. Elections Sanctions Regulations, 31 CFR part 579 (the “Regulations”), to implement E.O. 13848, pursuant to authorities delegated to the Secretary of the Treasury in E.O. 13848. A copy of E.O. 13848 appears in appendix A to this part.

The Regulations are being published in abbreviated form at this time for the purpose of providing immediate guidance to the public. OFAC intends to supplement this part 579 with a more comprehensive set of regulations, which may include additional interpretive and definitional guidance, general licenses, and statements of licensing policy. The appendix to the Regulations will be removed when OFAC supplements this part with a more comprehensive set of regulations.

Because the Regulations involve a foreign affairs function, the provisions of Executive Order 12866 and the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date, as well as the provisions of Executive Order 13771, are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

The collections of information related to the Regulations are contained in 31 CFR part 501 (the “Reporting, Procedures and Penalties Regulations”). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505-0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. The Coast Guard did not receive the final details of this fireworks display in time to publish an NPRM. As such, it is impracticable to publish an NPRM because we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would inhibit the Coast Guard's ability to protect participants, mariners and vessels from the hazards associated with this event.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231); 33 CFR 1.05-1, 160.5; Department of Homeland Security Delegation No. 0170.1.

The Captain of the Port Detroit has determined that potential hazard associated with fireworks from 9 p.m. to 10 p.m. on May 23, 2019 will be a safety concern to anyone within a 420-foot radius of the launch site. Such hazards include premature and accidental detonations, falling and burning debris, and collisions among spectator vessels. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the fireworks are being displayed.

With the aforementioned hazards in mind, the Captain of the Port Detroit has determined that this temporary safety zone is necessary to protect persons and vessels during the fireworks display. This rule establishes a safety zone from 9 p.m. through 10 p.m. on May 23, 2019. The safety zone will encompass all U.S. navigable waters of Lake St. Clair, Harrison Twp., MI, within a 420-foot radius of position 42°23.132′ N, 082°53.740′ W (NAD 83).

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Detroit or a designated on-scene representative. The Captain of the Port or a designated on-scene representative may be contacted via VHF Channel 16.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of Lake St. Clair from 9 p.m. to 10 p.m. on May 23, 2019. Moreover, the Coast Guard will issue Broadcast Notice to Mariners (BNM) via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

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

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

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

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

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

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

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting one hour that will prohibit entry into a designated area. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

The Northern Pacific Halibut Act (Halibut Act) of 1982 gives the Secretary of Commerce responsibility for implementing the provisions of the Halibut Convention between the United States and Canada. 16 U.S.C. 773-773k. The Halibut Act requires that the Secretary adopt regulations to carry out the purposes and objectives of the Halibut Convention and Halibut Act 16 U.S.C. 773(c). The Halibut Act also authorizes the regional fishery management councils to develop regulations in addition to, but not in conflict with, regulations of the International Pacific Halibut Commission (IPHC) to govern the Pacific halibut catch in their corresponding U.S. Convention waters. 16 U.S.C. 773c(c).

At its annual meeting in February 2019, the IPHC recommended an Area 2A catch limit of 1,500,000 lb (680.4 metric tons (mt)) for 2019. This catch limit is derived from the total constant exploitation yield (TCEY) of 1,650,000 lb (748.4 mt), which includes commercial discards and bycatch estimates calculated using a formula developed by the IPHC. The table below shows the fishery and subarea allocations resulting from the framework described in the 2019 Area 2A Catch Sharing Plan.

The Area 2A catch limit, tribal commercial fishery allocation, and commercial fishery allocations are adopted by the IPHC and were published in the Federal Register on March 14, 2019 (84 FR 9243) after acceptance by the Secretary of State in accordance with 50 CFR 300.62.

Since 1988, NMFS has implemented annual Catch Sharing Plans that allocate the IPHC regulatory Area 2A Pacific halibut catch limit between treaty Indian and non-Indian harvesters, and among non-Indian commercial and recreational (sport) fisheries. The Pacific Fishery Management Council (Council) develops Catch Sharing Plans in accordance with the Halibut Act. In 1995, the Council recommended, and NMFS approved and implemented a long-term Area 2A Catch Sharing Plan (60 FR 14651; March 20, 1995). NMFS has been implementing adjustments to the Area 2A Catch Sharing Plan based on Council recommendations each year to address the changing needs of these fisheries. While the full Catch Sharing Plan is not published in the Federal Register , it is made available on the Council and NMFS websites.

This rule adopts the Council's recommended changes to the Catch Sharing Plan for IPHC regulatory Area 2A, which affect only the recreational fishery. In addition, this rule revises the recreational Pacific halibut fishery management measures, such as season dates and bag limits, set in NMFS regulations and described in the proposed rule (84 FR 9281; March 14, 2019). These management measures are detailed in the Council's recommended Catch Sharing Plan and were developed through the Council's public process. This rule finalizes 2019 dates for the recreational fisheries consistent with the Council's recommendations as well as recommendations from Oregon, Washington, and California that were received either during the Council process or during the comment period for the proposed rule.

For 2019, the Council recommended minor modifications to recreational (sport) fisheries to better match the needs of the fishery. On March 14, 2019, NMFS published a proposed rule to approve the Council's recommended changes to the 2019 Catch Sharing Plan and recreational management measures for Area 2A (84 FR 9281). This final rule includes these components of the proposed rule. The Catch Sharing Plan changes provide flexibility to the state recreational fishery managers for opening the South Coast nearshore fishery and for extending the Columbia River fishery into the summer by both modifying the number of open days and the process for setting open days.

The 2019 Catch Sharing Plan allows incidental halibut retention in the sablefish primary fishery north of Pt. Chehalis, WA, when the Washington recreational catch limit is 214,110 lb (101.7 mt) or greater, provided that a minimum of 10,000 lb (4.5 mt) is available. The Area 2A catch limit for 2019 is great enough to allow 70,000 lb (31.8 mt) for incidental halibut retention in the sablefish primary fishery, which occurs when the catch limit is 1,500,000 lb (680.4 mt) or more. Incidental halibut landing restrictions in the sablefish fishery are recommended by the Council and implemented in the groundfish regulations at 50 CFR 660.231(b)(3)(iv).

The annual domestic management measures are published each year through a final rule under NMFS' authority to implement the Halibut Convention. 50 CFR 300.62. As provided in the Halibut Act at 16 U.S.C. 773b, 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. For the 2019 fishing season, the final rule for the commercial fisheries and IPHC regulations was published on March 14, 2019 (84 FR 9243). The section numbers below correspond to IPHC regulation sections in the March 14, 2019, final rule.

The recreational fishing regulations for Area 2A, included in section 27 (referring to the relevant section of the IPHC regulations) below, are consistent with the measures adopted by the IPHC and approved by the Secretary of State, but were developed by the Council and promulgated by the United States under the Halibut Act.

This rule adds the following text to Section 27 of the annual domestic management measures and paragraph (8) of the 2019 IPHC regulations, “Sport Fishing for Pacific Halibut—IPHC Regulatory Area 2A”:

(8) The sport fishing subareas, subquotas, fishing dates, and daily bag limits are as follows, except as modified under the inseason actions consistent with 50 CFR 300.63(c). All sport fishing in Area 2A is managed on a “port of landing” basis, whereby any halibut landed into a port counts toward the quota for the area in which that port is located, and the regulations governing the area of landing apply, regardless of the specific area of catch.

(a) The quota for the area in Puget Sound and the U.S. waters in the Strait of Juan de Fuca, east of a line extending from 48°17.30′ N lat., 124°23.70′ W long. north to 48°24.10′ N lat., 124°23.70′ W long., is 77,550 lb (35.2 mt).

(i) The fishing seasons are:

(A) Fishing is open May 2, 4, 9, 11, 18, 24, and 26; June 6, 8, 20, and 22, or until there is not sufficient quota for another full day of fishing and the area is closed by the Commission. Any closure will be announced on the NMFS hotline at 800-662-9825.

(ii) The daily bag limit is one halibut of any size per day per person.

(b) The quota for landings into ports in the area off the north Washington coast, west of the line described in paragraph (2)(a) of section 26 and north of the Queets River (47°31.70′ N lat.) (North Coast subarea), is 128,187 lb (58.1 mt).

(i) The fishing seasons are:

(A) Fishing is open May 2, 4, 9, 11, 18, 24, and 26; June 6, 8, 20, and 22, or until there is not sufficient quota for another full day of fishing and the area is closed by the Commission. Any closure will be announced on the NMFS hotline at 800-662-9825.

(ii) The daily bag limit is one halibut of any size per day per person.

(iii) Recreational fishing for groundfish and halibut is prohibited within the North Coast Recreational Yelloweye Rockfish Conservation Area (YRCA). It is unlawful for recreational fishing vessels to take and retain, possess, or land halibut taken with recreational gear within the North Coast Recreational YRCA. A vessel fishing with recreational gear in the North Coast Recreational YRCA may not be in possession of any halibut. Recreational vessels may transit through the North Coast Recreational YRCA with or without halibut on board. The North Coast Recreational YRCA is a C-shaped area off the northern Washington coast intended to protect yelloweye rockfish. The North Coast Recreational YRCA is defined in groundfish regulations at 50 CFR 660.70(a).

(c) The quota for landings into ports in the area between the Queets River, WA (47°31.70′ N lat.), and Leadbetter Point, WA (46°38.17′ N lat.) (South Coast subarea), is 62,896 lb (28.5 mt).

(i) This subarea is divided between the all-waters fishery (the Washington South coast primary fishery), and the incidental nearshore fishery in the area from 47°31.70′ N lat. south to 46°58.00′ N lat. and east of a boundary line approximating the 30 fm depth contour. This area is defined by straight lines connecting all of the following points in the order stated as described by the following coordinates (the Washington South coast, northern nearshore area):

The primary fishery season dates are May 2, 5, 9, 12, and 24, or until there is not sufficient quota for another full day of fishing and the area is closed by the Commission. Any closure will be announced on the NMFS hotline at 800-662-9825. If sufficient quota remains, the fishing season in the nearshore area commences the Saturday subsequent to the closure of the primary fishery, and continues 7 days per week until 62,896 lb (28.5 mt) is projected to be taken by the two fisheries combined and the fishery is closed by the Commission or September 30, whichever is earlier. If the fishery is closed prior to September 30, and there is insufficient quota remaining to reopen the northern nearshore area for another fishing day, then any remaining quota may be transferred in-season to another Washington coastal subarea by NMFS.

(ii) The daily bag limit is one halibut of any size per day per person.

(iii) Seaward of the boundary line approximating the 30-fm depth contour and during days open to the primary fishery, lingcod may be taken, retained and possessed when allowed by groundfish regulations at 50 CFR 660.360, subpart G.

(iv) Recreational fishing for groundfish and halibut is prohibited within the South Coast Recreational YRCA and Westport Offshore YRCA. It is unlawful for recreational fishing vessels to take and retain, possess, or land halibut taken with recreational gear within the South Coast Recreational YRCA and Westport Offshore YRCA. A vessel fishing in the South Coast Recreational YRCA and/or Westport Offshore YRCA may not be in possession of any halibut. Recreational vessels may transit through the South Coast Recreational YRCA and Westport Offshore YRCA with or without halibut on board. The South Coast Recreational YRCA and Westport Offshore YRCA are areas off the southern Washington coast established to protect yelloweye rockfish. The South Coast Recreational YRCA is defined at 50 CFR 660.70(d). The Westport Offshore YRCA is defined at 50 CFR 660.70(e).

(d) The quota for landings into ports in the area between Leadbetter Point, WA (46°38.17′ N lat.), and Cape Falcon, OR (45°46.00′ N lat.) (Columbia River subarea), is 15,127 lb (6.9 mt).

(i) This subarea is divided into an all-depth fishery and a nearshore fishery. The nearshore fishery is allocated 500 lb (0.23 mt) of the subarea allocation. The nearshore fishery extends from Leadbetter Point (46°38.17′ N lat., 124°15.88′ W long.) to the Columbia River (46°16.00′ N lat., 124°15.88′ W long.) by connecting the following coordinates in Washington 46°38.17′ N lat., 124°15.88′ W long. 46°16.00′ N lat., 124°15.88′ W long. and connecting to the boundary line approximating the 40 fm (73 m) depth contour in Oregon. The nearshore fishery opens May 6, and continues on Monday, Tuesday, and Wednesday each week until the nearshore allocation is taken, or September 30, whichever is earlier. The all-depth fishing season is open May 2, 5, 9, 12, 24, and 26. If sufficient quota remains after May 26, the Columbia River subarea would be open two days per week (Thursday and Sunday) until 15,127 lb (6.9 mt) are estimated to have been taken and the season is closed by the Commission, or September 30, whichever is earlier. Subsequent to this closure, if there is insufficient quota remaining in the Columbia River subarea for another fishing day, then any remaining quota may be transferred inseason to another Washington and/or Oregon subarea by NMFS. Any remaining quota would be transferred to each state in proportion to its contribution.

(ii) The daily bag limit is one halibut of any size per day per person.

(iii) Pacific Coast groundfish may not be taken and retained, possessed or landed when halibut are on board the vessel, except sablefish, Pacific cod, flatfish species, and lingcod caught north of the Washington-Oregon border during the recreational halibut fishery, when allowed by Pacific Coast groundfish regulations, during days open to the all-depth fishery only.

(iv) Taking, retaining, possessing, or landing halibut on groundfish trips is only allowed in the nearshore area on days not open to all-depth Pacific halibut fisheries.

(e) The quota for landings into ports in the area off Oregon between Cape Falcon (45°46.00′ N lat.) and Humbug Mountain (42°40.50′ N lat.) (Oregon Central Coast subarea), is 271,592 lb (123.2 mt).

(i) The fishing seasons are:

(A) The first season (the “inside 40-fm” fishery) commences June 1, and continues 7 days a week, in the area shoreward of a boundary line approximating the 40-fm (73-m) depth contour, or until the sub-quota for the central Oregon “inside 40-fm” fishery of 32,591 lb (14.8 mt), or any inseason revised subquota, is estimated to have been taken and the season is closed by the Commission, or October 31, whichever is earlier. The boundary line approximating the 40-fm (73-m) depth contour between 45°46.00′ N lat. and 42°40.50′ N lat. is defined at § 660.71(k).

(B) The second season (spring season), which is for the “all-depth” fishery, is open May 9, 10, 11; 16, 17, 18; 23, 24, 25; 30, 31, June 1; and 6, 7, 8. The allocation to the all-depth fishery is 171,103 lb (77.6 mt). If sufficient unharvested quota remains for additional fishing days, the season will re-open June 20, 21, 22; July 4, 5, 6; and July 18, 19, 20. Notice of the re-opening will be announced on the NMFS hotline (206) 526-6667 or (800) 662-9825.

(C) The third season (summer season), which is for the “all-depth” fishery, will be August 2, 3; 16, 17; 30, 31; September 13, 14; 27, 28; October 11, 12; and 25, 26; and will continue until the combined spring season and summer season quotas in the area between Cape Falcon and Humbug Mountain, Oregon, are estimated to have been taken and the area is closed by the Commission. NMFS will announce on the NMFS hotline in July whether the fishery will re-open for the summer season in August. Additional fishing days may be opened if sufficient quota remains after the last day of the first scheduled open period. If, after this date, an amount greater than or equal to 60,000 lb (27.2 mt) remains in the combined all-depth and inside 40-fm (73-m) quota, the fishery may re-open every Friday and Saturday, beginning August 2 and 3, and ending when there is insufficient quota remaining, whichever is earlier. If after September 3, an amount greater than or equal to 30,000 lb (13.6 mt) remains in the combined all-depth and inside 40-fm (73-m) quota, and the fishery is not already open every Friday and Saturday, the fishery may re-open every Friday and Saturday, beginning September 6 and 7, and ending October 31. After September 3, the bag limit may be increased to two fish of any size per person, per day. NMFS will announce on the NMFS hotline whether the summer all-depth fishery will be open on such additional fishing days, what days the fishery will be open and what the bag limit is.

(ii) The daily bag limit is one halibut of any size per day per person, unless otherwise specified. NMFS will announce on the NMFS hotline any bag limit changes.

(iii) During days open to all-depth halibut fishing when the groundfish fishery is restricted by depth, no groundfish may be taken and retained, possessed or landed, when halibut are on board the vessel, except sablefish, Pacific cod, and flatfish species, when allowed by groundfish regulations, if halibut are on board the vessel. During days open to all-depth halibut fishing when the groundfish fishery is open to all depths, any groundfish species permitted under the groundfish regulations may be retained, possessed or landed if halibut are on board the vessel. During days open to nearshore halibut fishing, flatfish species may be taken and retained seaward of the seasonal groundfish depths restrictions, if halibut are on board the vessel.

(iv) When the all-depth halibut fishery is closed and halibut fishing is permitted only shoreward of a boundary line approximating the 40-fm (73-m) depth contour, halibut possession and retention by vessels operating seaward of a boundary line approximating the 40-fm (73-m) depth contour is prohibited.

(v) Recreational fishing for groundfish and halibut is prohibited within the Stonewall Bank YRCA. It is unlawful for recreational fishing vessels to take and retain, possess, or land halibut taken with recreational gear within the Stonewall Bank YRCA. A vessel fishing in the Stonewall Bank YRCA may not possess any halibut. Recreational vessels may transit through the Stonewall Bank YRCA with or without halibut on board. The Stonewall Bank YRCA is an area off central Oregon, near Stonewall Bank, intended to protect yelloweye rockfish. The Stonewall Bank YRCA is defined at § 660.70(f).

(f) The quota for landings into ports in the area south of Humbug Mountain, OR (42°40.50′ N lat.) to the Oregon/California Border (42°00.00′ N lat.) (Southern Oregon subarea) is 11,322 lb (5.1 mt).

(i) The fishing season commences on May 1, and continues 7 days per week until the subquota is taken, or October 31, whichever is earlier.

(ii) The daily bag limit is one halibut per person with no size limit.

(iii) No Pacific Coast groundfish may be taken and retained, possessed or landed, except sablefish, Pacific cod, and flatfish species, in areas closed to groundfish, if halibut are on board the vessel.

(g) The quota for landings into ports south of the Oregon/California Border (42°00.00′ N lat.) and along the California coast is 39,000 lb (17.7 mt).

(i) The fishing season will be open May 1 through October 31, or until the subarea quota is estimated to have been taken and the season is closed by the Commission, whichever is earlier. NMFS will announce any closure by the Commission on the NMFS hotline (206) 526-6667 or (800) 662-9825.

(ii) The daily bag limit is one halibut of any size per day per person.

NMFS accepted public comments on the Council's recommended modifications to the 2019 Area 2A Catch Sharing Plan and the resulting proposed domestic fishing regulations through March 29, 2019. We received two comments from state agencies—the California Department of Fish and Wildlife (CDFW) and the Washington Department of Fish and Wildlife (WDFW).

Comment 1: CDFW submitted a comment recommending final recreational fishing season dates for the 2019 season. CDFW hosted an online survey following the IPHC annual meeting. Based on public comments received on California halibut fisheries and fishing performance in recent years, CDFW recommended season dates of May 1-October 31, or until quota has been attained, whichever comes first.

Response: NMFS concurs that the CDFW-recommended season dates are appropriate. The Area 2A catch limit is significantly higher than in the recent past and the season structure recommended by CDFW, which removes closed periods that were in effect in past years, should allow California to fully utilize its allocation. NMFS has updated sport fishery season dates off of California in this final rule.

Comment 2: WDFW submitted a comment suggesting a revision to the Catch Sharing Plan. WDFW provided its preferred season dates and suggested Catch Sharing Plan changes at the November Council meeting, prior to the IPHC's recommended Area 2A catch limit. The IPHC agreed on an Area 2A catch limit in early February 2019 that was higher than anticipated in November 2018, when the Council recommended Catch Sharing Plan changes and season dates. WDFW commented that the 2019 FCEY is 26 percent higher than in 2018, and that it anticipates needing more than two fishing days per week, as set forth under the Catch Sharing Plan, to ensure that sport fishery participants can catch the entire allocation. To allow for the additional fishing days, WDFW suggests adjusting the Catch Sharing Plan language. The Catch Sharing Plan includes language for recreational fisheries in Washington subareas that states “seasons . . . may be open up to two days per week which may include one weekday and one weekend day.” WDFW suggested removing the language specifying two days per week from the Catch Sharing Plan to provide flexibility for additional fishing days.

Response: The Catch Sharing Plan is a framework that details allocations and season structure. The Catch Sharing Plan forms the basis for season dates as recommended by the states after discussion with stakeholders, and allocations resulting from the 2A catch limit. It is a document created by the Council and is not subject to NMFS approval. NMFS may implement the Catch Sharing Plan through its regulations, but lacks authority to alter or amend the Council's approved Plan.

WDFW's comment requests that NMFS revise the Catch Sharing Plan to remove language that allows for a maximum of two fishing days per week in the Washington subareas. NMFS is unable to revise the Catch Sharing Plan, but does have the authority to make revisions to the regulations under flexible inseason management provisions, described in the Catch Sharing Plan, and implemented in regulation at 50 CFR 300.63.

As described in the response to Comment 1 above, NMFS changed season dates off of California in this final rule.

Regulations governing the U.S. fisheries for Pacific halibut are developed by the IPHC, the Pacific Fishery Management Council, the North Pacific Fishery Management Council, and the Secretary of Commerce. Section 5 of the Halibut Act of 1982 (Halibut Act, 16 U.S.C. 773c) provides the Secretary of Commerce with the general responsibility to carry out the Halibut Convention between Canada and the United States for the management of Pacific halibut, including the authority to adopt regulations as may be necessary to carry out the purposes and objectives of the Halibut Convention and Halibut Act. This action is consistent with the Secretary's authority under the Halibut Act.

This final rule has been determined to be not significant for purposes of Executive Order 12866. This final rule is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

This final rule does not contain policies with federalism or “takings” implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.

NMFS finds good cause to waive the 30-day delay in the date of effectiveness and make this rule effective on April 29, 2019, in time for the start of recreational Pacific halibut fisheries on May 1, 2019, pursuant to 5 U.S.C. 553(d)(3). The 2019 Catch Sharing Plan provides the framework for the annual management measures and subarea allocations based on the 2019 Area 2A catch limit for Pacific halibut. Some recreational fishery subareas open May 1, 2019, and this rule implements subarea allocations for those fisheries. Additionally, this rule implements a change to the Catch Sharing Plan season structure for the Washington South Coast and Columbia River subareas, which start in early May.

The Council's 2019 Catch Sharing Plan approved in this rule includes changes that respond to the needs of the fisheries in each state, including fisheries that begin in early May. The recreational fishery subarea allocations for 2019 are 26 percent higher than in 2018, and are implemented through this rule. The recreational Pacific halibut fisheries have high participation, and some subareas close months before the end of the season due to quota attainment. Without the higher allocation, fishing opportunity is lost, potentially causing economic harm to communities at sport fishing ports. Additionally, the season dates in this rule are specific to 2019 according to the Catch Sharing Plan framework. Without the publication of this rule, the 2018 season dates would remain in place, and would not occur on the days of the week specified in the Catch Sharing Plan. This year, the Council recommended modifying the season dates for the Columbia River subarea from three to two days per week, and this rule is necessary to implement that change; otherwise the fishery, which is scheduled to begin May 2, may close sooner than intended. The season lasted only five days last year, and if the 2018 season remained in place for 2019, the fishery would likely conclude before the third week in May.

Therefore, allowing the 2018 Catch Sharing Plan to remain in place would not respond to the needs of the fishery and would be in conflict with the Council's final recommendation for 2019. A delay in effectiveness could cause economic harm to the associated fishing communities by reducing fishing opportunity at the start of the fishing year. As a result of the potential harm to fishing communities that could be caused by delaying the effectiveness of this final rule, NMFS finds good cause to waive the 30-day delay in the date of effectiveness and make this rule effective upon publication in the Federal Register .

Section 604 of the Regulatory Flexibility Act (RFA), 5 U.S.C. 604, requires Federal agencies to prepare a Final Regulatory Flexibility Analysis (FRFA) for each final rule. The FRFA describes the economic impact of this action on small entities. The FRFA includes a summary of significant issues raised by public comments, the analyses contained in the accompanying Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (IRFA), the IRFA summary in the proposed rule, as well as the summary provided below. A statement of the necessity for, and the objectives of this action are contained in proposed rule and in the preamble to this final rule, and is not repeated here.

A statement of the significant issues raised by the public comments in response to the IRFA, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments.

There were no issues raised about the IRFA in the public comments.

The response of the agency to any comments filed by the Chief Counsel for Advocacy in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments.

There were no comments filed by the Chief Counsel for Advocacy.

A description and, where feasible, estimate of the number of small entities to which the final rule applies.

This action makes changes only to the sport fishing sector of the halibut fishery. Therefore, this rule may affect some charterboat operations in Area 2A. Previous analyses determined that charterboats are small businesses. See 77 FR 5477 (Feb. 3, 2012) and 76 FR 2876 (Jan. 18, 2011). Charter fishing operations are classified under NAICS code 487210, with a corresponding SBA size standard not in excess of $7.5 million in annual receipts. No commercial fishing entities are directly affected by this rule.

In 2018, the IPHC issued 133 licenses to the charterboat fleet. Recent information on charterboat activity is not available, but prior analysis indicated that 60 percent of the IPHC charterboat license holders (around 80 vessels) may be affected by these regulations. Private vessels used for recreational fishing are not businesses, and are therefore not subject to the RFA.

Reporting and recordkeeping requirements.

The changes to the Catch Sharing Plan and domestic management measures do not include any new reporting or recordkeeping requirements.

Description and estimate of economic effects on entities, by entity size and industry.

The major effect of halibut management on small entities will be from the catch limit decisions made by the IPHC, a decision independent from this action. This action only makes minor changes to the Catch Sharing Plan to provide increased recreational opportunities under the allocations that result from the Area 2A catch limit. There are no large entities involved in the halibut fisheries; therefore, none of these changes will have a disproportionately negative effect on small entities versus large entities. The changes to the plan are considered minor, with minimal economic effects.

An explanation of the criteria used to evaluate whether the rule would impose “significant” economic effects.

The recreational management measures implement the Catch Sharing Plan by managing the fisheries to meet the differing fishery needs of the various areas along the coast according to the Catch Sharing Plan's objectives. These changes were uncontroversial throughout the Council's public process and are considered minor because the timing and level of participation are not expected to change. The changes to the Catch Sharing Plan are not expected to have a significant economic impact on a substantial number of small entities.

An explanation of the criteria used to evaluate whether the rule would impose effects on “a substantial number” of small entities.

Participants in the recreational Washington and Columbia River subareas will be impacted by these changes, and all of the entities are considered small. However, the effects of the rule would be minimal as described above. In 2017, the average number of participants in the Columbia River subarea was 73 (private vessels and charterboats are not differentiated), with the highest number on the first two days and last day. Participation in 2019 is expected to be similar.

A description of, and an explanation of the basis for, assumptions used.

In the description of the entities affected, estimates of the number of charterboats were based off a 2004 report by the Pacific States Marine Fisheries Commission. This report has not been updated and the number of entities is assumed to be similar.

Relevant Federal rules that may duplicate, overlap or conflict with the final rule.

There are no relevant federal rules that may duplicate, overlap, or conflict with this action.

A description of any significant alternatives to the final rule that accomplish the stated objectives of applicable statutes and that minimize any significant economic impact of the action on small entities.

There were no significant alternatives to the final rule that would minimize any significant impact on small entities. The minor changes, including updates to recreational fishery season dates, removing the set-aside for the nearshore fishery in the Washington South Coast subarea, and modifying the number of open days and the process for setting open days in the Columbia River subarea, were proposed by stakeholders and recommended by the Council to address the needs of the fishery. In developing the minor changes to the Plan that it recommended to NMFS, the Council considered and accepted public comment on alternatives. In large part, these included “status quo” and “action” alternatives, where “status quo” represented the 2018 Plan. Removing the set-aside in the nearshore fishery is not expected to impact the fishery, since the South Coast primary fishery has exceeded its sub-allocation in previous years, and the nearshore fishery has remained closed. Reducing the number of open days in the Columbia River subarea from three open days (status quo—open Thursday, Friday, and Sunday), to two open days (open a combination of Thursday, Friday, or Sunday), is expected to allow the season to stay open through the summer. Allowing the season to remain open for three days could result in the season ending at an earlier date, which would ultimately decrease sport fishing opportunities. The changes to the Catch Sharing Plan are expected to slightly increase fishing opportunities in some areas and at some times and to slightly decrease fishing opportunities in other areas and at other times. None of these changes are controversial and none are expected to result in substantial environmental or economic impacts. These actions are intended to enhance the conservation of Pacific halibut and to provide angler opportunity where available. Because the goal of the action is to maximize angler participation, and thus to maximize the economic benefits of the fishery, NMFS did not analyze alternatives to the above changes, other than the Council-proposed changes and the status quo, for purposes of the FRFA. Effects of the status quo and the changes in this final rule are similar, because the changes to the Catch Sharing Plan for 2019 are not substantially different from the 2018 Plan. The changes to the Plan are not expected to have a significant economic impact.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a public notice to fishery participants that also serves as a small entity compliance guide (guide) was prepared. Copies of this final rule are available from the West Coast Regional Office, and the guide will be sent to all stakeholders on the email listserv for the groundfish fishery and posted to the West Coast groundfish and halibut websites. The guide and this final rule will be available upon request from the West Coast Regional Office.

A copy of this analysis is available from the Council or NMFS (see ADDRESSES ).

Pursuant to Executive Order 13175, the Secretary recognizes the sovereign status and co-manager role of Indian tribes over shared Federal and tribal fishery resources. Section 302(b)(5) of the Magnuson-Stevens Fishery Conservation and Management Act establishes a seat on the Pacific Council for a representative of an Indian tribe with federally recognized fishing rights from California, Oregon, Washington, or Idaho.

The U.S. Government formally recognizes that the 13 Washington Tribes have treaty rights to fish for Pacific halibut. In general terms, the quantification of those rights is 50 percent of the harvestable surplus of Pacific halibut available in the tribes' usual and accustomed fishing areas (described at 50 CFR 300.64). Each of the treaty tribes has the discretion to administer their fisheries and to establish their own policies to achieve program objectives. Accordingly, tribal allocations and regulations, including the changes to the Catch Sharing Plan, have been developed in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.

NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2019 Greenland turbot ITAC in the Aleutian Islands subarea of the BSAI is 144 metric tons (mt) as established by the final 2019 and 2020 harvest specifications for groundfish in the BSAI (84 FR 9000, March 13, 2019). The Regional Administrator has determined that the 2019 ITAC for Greenland turbot in the Aleutian Islands subarea of the BSAI is necessary to account for the incidental catch of this species in other anticipated groundfish fisheries for the 2019 fishing year. Therefore, in accordance with § 679.20(d)(1)(i), the Regional Administrator establishes the directed fishing allowance for Greenland turbot in the Aleutian Islands subarea of the BSAI as zero mt. Consequently, in accordance with § 679.20(d)(1)(iii), NMFS is prohibiting directed fishing for Greenland turbot in the Aleutian Islands subarea of the BSAI.

While this closure is effective, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Greenland turbot in the Aleutian Islands subarea of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as April 22, 2019.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.