Transport Canada, which is the aviation authority for Canada, has issued AD Number CF-2018-28, dated October 15, 2018 (referred to after this as “the MCAI”), to correct an unsafe condition for all Viking (formerly Bombardier Inc.; de Havilland, Inc.) Models DHC-6-1, DHC-6-100, DHC-6-110, DHC-6-200, DHC-6-210, DHC-6-300, DHC-6-310, DHC-6-320, and DHC-6-400 airplanes. The MCAI states:

The damage to the elevator control cable is caused by a dent on the pulley on the inside bearing race that is not detectable by direct visual inspection or rotation of the pulley without applied load. The dent in the bearing race prevents free turning of the pulley under certain load conditions, which causes rapid wear of the cable. The dent is caused by wear over an extended period of time due to vibration while the bearing is stationary. This AD requires inspecting the elevator and rudder control cables for abnormal wear at pulley location STA 270.3 and replacing any worn cables and the corresponding pulley. You may examine the MCAI on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2019-0410.

In preparation of AD actions such as notices of proposed rulemaking and immediately adopted final rules, it is the practice of the FAA to obtain technical information and information on the operational and economic impact from design approval holders and aircraft operators. The FAA discussed certain aspects of this AD by email and in person with Viking Air Limited. A copy of each email contact and a summary of each discussion can be found in the rulemaking docket. For information on locating the docket, see “Examining the AD Docket” in ADDRESSES .

The FAA reviewed Viking DHC-6 Twin Otter Service Bulletin Number: V6/0062, dated July 31, 2017. The service information contains instructions for inspecting the elevator and rudder control cables for abnormal wear at pulley location STA 270.3 and replacing any worn cables and the corresponding pulley.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this AD because we evaluated all information provided by the State of Design Authority and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because failure of the elevator or rudder control cable in flight could result in loss of control of the aircraft. Therefore, the FAA finds good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reason(s) stated above, the FAA finds that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and the FAA did not precede it by notice and opportunity for public comment. The FAA invites you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2019-0410; Product Identifier 2018-CE-059-AD” at the beginning of your comments. The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this AD. The FAA will consider all comments received by the closing date and may amend this AD because of those comments.

The FAA will post all comments received, without change, to http://www.regulations.gov, including any personal information you provide. The FAA will also post a report summarizing each substantive verbal contact we receive about this AD.

The FAA estimates that this AD will affect 133 products of U.S. registry. The FAA also estimates that it will take about .5 work-hour per product to comply with the basic inspection requirement of this AD. The average labor rate is $85 per work-hour.

Based on these figures, the FAA estimates the cost of the AD on U.S. operators to be $5,652.50, or $42.50 per product.

In addition, the FAA estimates that any necessary follow-on replacement action will take about 3 work-hours and require parts costing $203 for a cost of $458 per product. The FAA has no way of determining the number of products that may need these actions.

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

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

This AD 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 small airplanes, gliders, balloons, airships, domestic business jet transport airplanes, and associated appliances to the Director of the Policy and Innovation Division.

The FAA determined that 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 the 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:

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. Since the Coast Guard received notice of this event on May 20, 2019, notice and comment procedures would be impracticable in this instance.

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 . For similar reasons as stated above, notice and comment procedures would be impractical in this instance due to the short notice provided for this event.

The Coast Guard is issuing this rule under authority 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port San Francisco (COTP) has determined that potential hazards associated with the Belvedere Island Birthday Fireworks on June 1, 2019, will be a safety concern for anyone within a 100-foot radius of the fireworks barge during loading, staging, and transit, and anyone within a 420-foot radius of the fireworks barge starting 30 minutes before the fireworks display is scheduled to commence and ending 30 minutes after the conclusion of the fireworks display. For this reason, a safety zone is needed to protect personnel, vessels, and the marine environment in the navigable waters around the fireworks barge during the fireworks display.

This rule establishes a safety zone from noon until 10:25 p.m. on June 1, 2019, during the loading, staging, and transit of the fireworks barge, until approximately 30 minutes after completion of the fireworks display. From noon to 9:15 p.m. on June 1, 2019, during the loading, staging, and transit of the fireworks barge until 30 minutes prior to the start of the fireworks display, the safety zone will encompass the navigable waters around and under the fireworks barge, from surface to bottom, within a circle formed by connecting all points 100 feet out from the fireworks barge. Loading the pyrotechnics onto the fireworks barge is scheduled from noon to 4 p.m. on June 1, 2019, at Pier 50 in San Francisco, CA. From 4 p.m. to 8:15 p.m. on June 1, 2019, the barge will remain at Pier 50. From 8:15 p.m. to 9:25 p.m. on June 1, 2019, the fireworks barge will be towed from Pier 50 to the display location, where it will remain until the conclusion of the fireworks display.

At 9:15 p.m. on June 1, 2019, 30 minutes prior to the commencement of the 10-minute Belvedere Island Birthday Fireworks, the safety zone will increase in size and encompass the navigable waters around and under the fireworks barge, from surface to bottom, within a circle formed by connecting all points 420 feet from the circle center at approximate position 37°52′08″ N, 122°28′18″ W (NAD 83). The safety zone will terminate at 10:25 p.m. on June 1, 2019.

The effect of the safety zone is to restrict navigation in the vicinity of the fireworks loading, staging, transit, and firing site. Except for persons or vessels authorized by the COTP or the COTP's designated representative, no person or vessel may enter or remain in the restricted areas. These regulations are needed to keep spectators and vessels away from the immediate vicinity of the fireworks firing sites to ensure the safety of participants, spectators, and transiting vessels.

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 limited duration and narrowly tailored geographic area of the safety zone. Although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterway users will be notified via public Notice to Mariners to ensure the safety zone will result in minimum impact. The entities most likely to be affected are waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities.

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.

This rule may affect the following entities, some of which may be small entities: owners and operators of waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities and sightseeing, if these facilities or vessels are in the vicinity of the safety zone at times when this zone is being enforced. This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) This rule will encompass only a small portion of the waterway for a limited period of time, and (ii) the maritime public will be advised in advance of these safety zones via Notice to Mariners.

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 Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone of limited size and duration. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. 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 Coast Guard will enforce the Safety Zones; Annual Events in the Captain of the Port Buffalo Zone listed in 33 CFR 165.939 for the following events:

(1) Seneca River Days, Baldwinsville, NY ; The safety zone listed in Table 165.939 as (a)(4) will be enforced from 9:30 p.m. through 10:15 p.m. on June 14, 2019 with a rain date of June 15, 2019.

(2) Flagship Niagara Mariner's Ball Fireworks, Erie, PA ; The safety zone listed in Table 165.939 as (a)(5) will be enforced from 9 p.m. through 10 p.m. on June 01, 2019.

(3) Hope Chest Buffalo Niagara Dragon Boat Festival, Buffalo, NY ; The safety zone listed in Table 165.939 as (a)(6) will be enforced from 8:00 a.m. through 5:30 p.m. on June 15, 2019.

Pursuant to 33 CFR 165.23, entry into, transiting, or anchoring within the safety zones during an enforcement period is prohibited unless authorized by the Captain of the Port Buffalo or a designated representative. Those seeking permission to enter the safety zones may request permission from the Captain of Port Buffalo via channel 16, VHF-FM. Vessels and persons granted permission to enter the safety zones shall obey the directions of the Captain of the Port Buffalo or a designated representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.

This notice of enforcement is issued under authority of 33 CFR 165.939 and 5 U.S.C. 552 (a). In addition to this notice of enforcement in the Federal Register , the Coast Guard will provide the maritime community with advance notification of this enforcement period via Broadcast Notice to Mariners or Local Notice to Mariners. If the Captain of the Port Buffalo determines that the safety zone need not be enforced for the full duration stated in this notification he or she may use a Broadcast Notice to Mariners to grant general permission to enter the respective safety zone.

On March 19, 2019 (84 FR 9991), EPA published a notice of proposed rulemaking (NPRM) for the Commonwealth of Pennsylvania. In the NPRM, EPA proposed approval of lower commercial fuel oil sulfur limits for combustion and sale in Philadelphia County into the Pennsylvania SIP. The formal SIP revision was submitted by the City of Philadelphia, Air Management Services (AMS) through the Pennsylvania Department of Environmental Protection (PADEP) on June 21, 2018. The SIP revision consists of an amendment to 40 CFR 52.2020(c)(3), the Philadelphia County portion of the SIP, in order to implement provisions for lower sulfur levels in commercial fuel oil in Philadelphia County.

Through its June 2018 SIP revision submittal, Pennsylvania sought to revise its SIP by including amendments to Section 3-207 of the Air Management Code (AMC), as well as Sections I, II, and III of Air Management Regulation (AMR) III (Control of Emissions of Oxides and Sulfur Compounds). The revision lowers the maximum allowable sulfur content in number 2 and lighter fuel oils from 0.2 percent (%) by weight (2,000 parts per million (ppm)) to 0.0015% by weight (15 ppm) and lowers the maximum allowable sulfur content in number 4 fuel oils from 0.3% by weight (3,000 ppm) to 0.25% by weight (2,500 ppm).

The revision also lowers the permissible sulfur dioxide (SO 2 ) emissions from the combustion of number 4 fuel oils and lowers the sulfur oxides emission limit to 0.4 ppm for any 5-minute period when measured at ground level. The revision allows commercial fuel oil stored by the ultimate consumer at its facility prior to the applicable compliance date, July 1, 2015, to be used after that applicable compliance date, if the fuel oil met the applicable maximum allowable sulfur content at the time it was stored, provided that certain conditions are met. Also included in the revised provisions are exemptions for using noncompliant fuel oil beyond July 1, 2020 and an emergency conditions provision.

Other specific requirements of lower commercial fuel oil sulfur limits for combustion and sale in Philadelphia County and the rationale for EPA's proposed action are explained in the NPRM, which is available in the docket for this rulemaking located at https://www.regulations.gov, Docket ID Number EPA-R03-OAR-2018-0722. No adverse public comments were received on the NPRM. Two identical positive public comments were received.

EPA is approving Pennsylvania's June 21, 2018 SIP submittal that lowers commercial fuel oil sulfur limits for combustion units in Philadelphia County as a revision to the Pennsylvania SIP. With this approval, EPA will incorporate amended AMC Section 3-207 and AMR III Sections I, II, and III into the Commonwealth of Pennsylvania's SIP.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of lower commercial fuel oil sulfur limits for combustion units in Philadelphia County discussed in Sections I and II of this action. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully Federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866.

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

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

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

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 30, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action regarding commercial fuel oil sulfur limits for combustion and sale in Philadelphia County may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

Section 110(a)(2)(C) of the Clean Air Act requires that the SIP include a program to provide for the “regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that national ambient air quality standards are achieved.” This includes a program for permitting construction and modification of both major and minor sources that the state deems necessary to protect air quality. The State of Michigan's minor source permit to install rules are contained in Part 2 (Air Use Approval) of the Michigan Administrative Code. Changes to the Part 2 rules were submitted on November 12, 1993; May 16, 1996; April 3, 1998; September 2, 2003; March 24, 2009; and February 28, 2017.

Michigan originally submitted its Michigan R 336.1205 (rule 205) as a revision to its Part 2 SIP on May 16, 1996. The most recent version of rule 205 was submitted to EPA on March 24, 2009 and has a State effective date of June 20, 2008. EPA published a proposed approval of all Part 2 changes, except rule 205, on August 15, 2017 (82 FR 38651). EPA took no action to approve rule 205 at that time. Most recently, EPA approved changes to the Part 2 rules (except rule 205) in a final approval dated August 31, 2018 (83 FR 44485). In this action, EPA is approving revisions to the SIP for Michigan rule 205 and 324.5511(3) of the Michigan Natural Resources and Environmental Protection Act. Rule 205 is titled “Permit to install; approval.” and is a section of the Part 2 air use approval rules of the Michigan Administrative Code that specifies the public participation requirements for issuance of air pollutant construction permits. Michigan Act 451, Part 55, section 324.5511(3) defines the permitting actions requiring public comment and public hearing opportunities.

Rule 205 requires permits to install which include limitations that restrict the potential to emit from a stationary source, process, or process equipment to a quantity below that which would otherwise constitute a major source or major modification under any part of the Part 2 air permit rules. Permits to install must contain adequate emission limits that are enforceable as a practical matter; with a consideration to the time-period, production, emission, usage and/or operational limits that restrict the source's potential to emit in order to demonstrate compliance.

Michigan rule 205 describes the content and public participation process for the Michigan Department of Environmental Quality (MDEQ), as the permitting authority, to act on certain permits which need to be “federally enforceable” or enforceable as a practical matter. Additionally, the rule also prescribes these requirements for any permit issued under Section 112 of the Clean Air Act. This rule incorporates guidance published by EPA in the Federal Register on June 28, 1989 (54 FR 27274) on limiting a source's potential to emit. The rule applies only to sources and modifications defined as “major” under Federal regulations and to sources which would be subject to the “major” requirements except for conditions contained in the permit which limit the potential to emit to less than the applicable emission thresholds. Sources which accept conditions which limit the potential to emit to something less than the true design capacity of the equipment being installed are referred to as “synthetic minor” sources.

Rule 205 specifies that the draft permit is subject to the public participation process specified in section 324.5511(3) of Michigan Act 451. The requirements of section 324.5511(3) are reviewed and further described below. Lastly, Michigan, at its discretion, may approve a permit to install that includes limitations restricting the potential to emit of the stationary source without meeting the requirements of section 324.5511(3) if the emission limitations restrict the potential to emit of the source to less than 90% of the quantity referenced in the applicable requirement.

In its May 1996 submittal, MDEQ requested that all of Part 55 of Act 451 of the 1994 Michigan act be approved as a revision to the Michigan SIP in addition to rule 205 and other sections of Michigan's Part 2 air permit program rules. EPA did not act on the request to include Part 55 of the Michigan act into the Michigan SIP, nor did we approve rule 205. Upon EPA's review of the submittal, we determined that the other sections of the Part 55 act, such as 324.5506, pertain to the Michigan operating permits program. EPA approved the mechanism for Michigan's title V operating permits program but did not approve its operating permits rules into the SIP because that program has a different approval mechanism under the Clean Air Act. Additionally, section 324.5511(3) references consent orders and the public notice opportunity for those actions. Actions related to consent orders are not being approved into the State's SIP.

On December 19, 2018, Michigan submitted a clarification letter to EPA specifying that it only intended to submit a selection of section 324.5511(3) of the Natural Resources and Environmental Protection Act 451 of 1994 as part of the revision with Michigan rule 205. Michigan rule 205 references the above-mentioned rule 324.5511(3) at R 336.1205(1)(b) citing, “A draft permit has been subjected to the public participation process specified in section 324.5511(3) of the act.” EPA is approving the selection of section 5511(3) into the Michigan SIP as submitted by the State in their December 19, 2018 letter. The selected language as submitted removes references to Michigan's operating permits program and consent order requirements which are not being approved into the SIP, nor are they required to be approved into the SIP. Whereas section 5511(3) contains provisions related to New Source Review (NSR), the operating permits program, and consent orders, this action is not intended as a revision to Michigan's SIP language pertaining to its title V operating permits program or to actions related to consent orders, but only for NSR construction permitting purposes.

EPA requires that major sources and major modifications to major sources subject to the Prevention of Significant Deterioration of air quality and those sources impacting nonattainment areas be subject to public participation requirements, including a public comment period and opportunity for a public hearing. EPA already approved Michigan's major source air permitting program and its associated public participation requirements, found in Michigan rule R 336.2817, on March 25, 2010 (75 FR14352) in accordance with the requirements found in 40 CFR 51.166. Sources subject to Part 19, New Source Review for major sources impacting nonattainment areas, are required to obtain a permit subject to the permitting provisions of Michigan rules Part 19, which meet the requirements found in 40 CFR 51.165(a) and (b), and rule 201 of the Part 2 air permit rules.

Approving Michigan's rule 205 and section 324.5511(3) of the Michigan act as a revision to the Michigan SIP will strengthen the existing State public notice requirements for public participation for air permits. As stated in Michigan's letter, “These additions will strengthen the Michigan SIP by formalizing the public participation process for all permits issued pursuant to Part 55 and R 336.1201, as well as major source prevention of significant deterioration and nonattainment NSR permits to install.”

Section 324.5511(3), paragraphs (a), (b), and (c) specify the requirements for permit notification and sets the public comment period to at least 30 days with an opportunity for a public hearing with at least a 30-day notice. The current SIP required NSR public participation process provides for only a 21-day public notice and comment period. The Federal permit public participation requirements are only applicable for major source and major modifications in both attainment and nonattainment areas and not the minor source permitting program. These approved provisions of rule 205 and section 324.5511(3) further strengthen the already approved minor air pollutant construction permitting program by adding a public notice requirement for those sources above 90% of the quantity referenced in the applicable requirements which would constitute a major source or major modification and by prescribing the permit emission limitations which will make the synthetic minor air permit practically enforceable. Michigan will continue to exercise its discretion by making draft permits available for public comment which are below the 90% quantity in the applicable requirements for a major source or major modification.

On March 27, 2019, EPA published an action proposing approval of Michigan rule R336.1205 and 324.5511(3) of Michigan Act 451 (84 FR 11464). The comment period for the proposed approval ended April 26, 2019. EPA received two comments via the regulations.gov website during the comment period. Commenters submitted comments that generally were in support of this proposed action. One commenter noted that the requirement for public hearing being put into place in Michigan needs to be country-wide and not just limited to communities that demand it after damage has already happened. The commenter also raised concerns with the oil and gas companies not requiring public notice for drilling operations. The Federal major source construction permitting rules require that all major sources of air pollution be subject to a public participation process including a 30-day public comment period and opportunity for a public hearing. States are required to adopt requirements that are at least as stringent as the Federal applicable air permitting requirements. The State of Michigan issues air permits pursuant to its regulations including all applicable Federal requirements, with their associated public notice and comment period requirements.

EPA is approving Michigan rule R 336.1205, “Permit to install; approval” and portions of section 324.5511(3) of Michigan Act 451 of 1994 into the Michigan SIP.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Michigan Regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available through www.regulations.gov, and at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 30, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

VOCs are organic compounds of carbon that, in the presence of sunlight, react with sources of oxygen molecules, such as nitrogen oxides (NO X ) and carbon monoxide (CO), in the atmosphere to produce tropospheric ozone, commonly known as smog. Common sources that may emit VOCs include paints, coatings, housekeeping and maintenance products, and building and furnishing materials. Outdoor emissions of VOCs are regulated by EPA primarily to prevent the formation of ozone.

VOCs have different levels of volatility, depending on the compound, and react at different rates to produce varying amounts of ozone. VOCs that are non-reactive or of negligible reactivity to form ozone react slowly and/or form less ozone; therefore, reducing their emissions has limited effects on local or regional ozone pollution. Section 302(s) of the CAA specifies that EPA has the authority to define the meaning of VOC and what compounds shall be treated as VOCs for regulatory purposes. It is EPA's policy that organic compounds with a negligible level of reactivity should be excluded from the regulatory definition of VOC in order to focus control efforts on compounds that significantly affect ozone concentrations. EPA uses the reactivity of ethane as the threshold for determining whether a compound has negligible reactivity. Compounds that are less reactive than, or equally reactive to, ethane under certain assumed conditions may be deemed negligibly reactive and, therefore, suitable for exemption by EPA from the regulatory definition of VOC. The policy of excluding negligibly reactive compounds from the regulatory definition of VOC was first laid out in the “Recommended Policy on Control of Volatile Organic Compounds” (42 FR 35314, July 8, 1977) and was supplemented subsequently with the “Interim Guidance on Control of Volatile Organic Compounds in Ozone State Implementation Plans” (70 FR 54046, September 13, 2005). The regulatory definition of VOC as well as a list of compounds that are designated by EPA as negligibly reactive can be found at 40 CFR 51.100(s).

On September 30, 1999, EPA revised the regulatory definition of VOC in 40 CFR 51.100(s) to exclude t-butyl acetate (also known as tertiary butyl acetate or TBAC) from the definition of VOC for purposes of VOC emissions limitations or VOC content requirements. See 64 FR 52731. 1

On November 29, 2004 (69 FR 69290), EPA promulgated a final rule revising the regulatory definition of VOC in 40 CFR 51.100(s) to add HFE-7000 (1,1,1,2,2,3,3-heptafluoro-3-methoxy-propane), HFE-7500 [3-ethoxy-1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-(trifluoromethyl) hexane], HFC-227ea (1,1,1,2,3,3,3-heptafluoropropane), and methyl formate to the list of compounds excluded from EPA's regulatory definition of VOC. On January 18, 2007 (72 FR 2193) and January 21, 2009 (74 FR 3437), EPA promulgated additional final rules revising the regulatory definition of VOC in 40 CFR 51.100(s) to add HFE-7300 (1,1,1,2,2,3,4,5,5,5-decafluoro-3-methoxy-4-trifluoromethyl-pentane), propylene carbonate, and dimethyl carbonate to the list of compounds excluded from the regulatory definition of VOC. These actions were based on EPA's consideration of the compounds' negligible reactivity and low contribution to ozone as well as the low likelihood of risk to human health or the environment. EPA's rationale for these actions is explained in more detail in the final rules for these actions.

In order to conform with EPA's current regulatory definition of VOC in 40 CFR 51.100(s), Delaware amended Section 2.0 of 7 DE Admin. Code 1101— Definitions and Administrative Principles to add HFE-7000, HFE-7500, HFC-227ea, methyl formate, HFE-7300, propylene carbonate and dimethyl carbonate to a list of compounds excluded from the regulatory definition of VOC. Delaware also amended the definition of VOC in 7 DE Admin. Code 1101 to exclude TBAC from the definition of VOC for the purposes of VOC emissions limitations or VOC content requirements, but continued to define TBAC as a VOC for purposes of all recordkeeping, emissions reporting, photochemical dispersion modeling, and inventory requirements that apply to VOC. 2 Delaware also made minor changes to the format of some of the chemical formulas for VOCs that were already excluded from the definition of VOC in 7 DE Admin Code 1101. 3 On May 25, 2018, the State of Delaware, through the Department of Natural Resources and Environmental Control (DNREC), formally submitted these amendments to 7 DE Admin. Code 1101 as a SIP revision.

On February 12, 2019 (84 FR 3384), EPA published a notice of proposed rulemaking (NPRM) for the State of Delaware. In the NPRM, EPA proposed approval of updates to the regulatory definition of VOC. EPA's rationale for the proposed action is discussed in the NPRM and will not be restated here.

EPA received one comment supporting EPA's NPRM approval of the SIP and suggesting that EPA adopt a new nomenclature for VOCs. EPA thanks the commenter but notes that the renaming of VOCs was outside of the scope of EPA's proposal.

EPA is approving updates to the regulatory definition of VOC in Section 2.0 of 7 DE Admin. Code 1101, submitted on May 25, 2018 by DNREC, as a revision to the Delaware SIP, as the submission meets the requirements of CAA section 110.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference ofx the revisions to the definition of VOC in Section 2.0 of 7 DE Admin. Code 1101 discussed in Section II of this preamble. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region III Office (please contact the person identified in the For Further Information Contact section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully Federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 4

DoD published a proposed rule in the Federal Register at 83 FR 65618 on December 21, 2018, to revise the DFARS to implement section 821 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L. 115-91). Section 821 amends 41 U.S.C. 1908(d) to require inflation adjustments of statutory acquisition-related thresholds under 41 U.S.C. 1908 apply to existing contracts and subcontracts in effect on the date of the adjustment. Section 821 adds the words “and shall apply, in the case of the procurement of property or services by contract, to a contract, and any subcontract at any tier under the contract, in effect on that date without regard to the date of award of the contract or subcontract” at the end of 41 U.S.C. 1908(d).

41 U.S.C. 1908, Inflation adjustment of acquisition-related dollar thresholds, requires an adjustment every five years of acquisition-related thresholds for inflation using the Consumer Price Index for All Urban Consumers (CPI-U), except for the Construction Wage Rate Requirements statute (formerly known as the Davis-Bacon Act), Service Contract Labor Standards statute (formerly known as the Service Contract Act), and trade agreements thresholds.

There were no public comments submitted in response to the proposed rule. There are no changes made to the final rule except for conforming changes to the current version of the DFARS.

This rule does not create any new provisions or clauses or impact any existing provisions or clauses, except for moving dollar values of thresholds in the stated clauses to DFARS text locations and adding references to the DFARS text locations in these clauses.

Executive Order (E.O.s) 12866, Regulatory Planning and Review; and E.O. 13563, Improving Regulation and Regulatory Review, direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This is not a major rule under 5 U.S.C. 804.

This final rule is not an E.O. 13771 regulatory action, because this rule is not significant under E.O. 12866.

DoD does not expect this final rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. However, a final regulatory flexibility analysis has been performed and is summarized as follows:

DoD is amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 821 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018. Section 821 amends 41 U.S.C. 1908(d) by including a statement that the inflation adjusted acquisition-related dollar thresholds apply to existing contracts and subcontracts in effect on the date of the adjustment.

There were no comments made by the public in response to the initial regulatory flexibility analysis.

This rule will likely affect, to some extent, all small business concerns that submit offers or are awarded contracts by the Federal Government. For Fiscal Year 2017, there were 106,438 unique vendors in the Federal Procurement Data System (FPDS) identified as small business concerns.

This rule is not expected to have any significant economic impact on small business concerns, because this rule: (1) Is not creating any new requirements with which small entities must comply, and (2) is only establishing the framework to apply the inflation adjustments of statutory acquisition-related thresholds under 41 U.S.C. 1908 to existing contracts and subcontracts in effect on the date of the adjustment. The rule will have minimal impact on small businesses when responding to solicitations where an inflation-adjusted threshold applies. Any impacts of this rule will have a positive impact on small business entities.

The next inflation adjustment to the thresholds will be implemented through a future DFARS rule. The inflation adjustments are intended to maintain the status quo by adjusting for changes in the value of the dollar. Often any impact on small business concerns will be beneficial by preventing burdensome requirements from applying to small dollar value acquisitions, which are the acquisitions for which small business concerns are most likely to participate.

The rule does not duplicate, overlap, or conflict with any other Federal rules.

There are no known significant alternative approaches to the proposed rule that would meet the requirements of the applicable statute.

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR parts 201, 209, and 252 are amended as follows:

DoD published an interim rule in the Federal Register at 83 FR 66066 on December 21, 2018, to implement section 1603 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L. 115-91) and section 1296 of the NDAA for FY 2017 (Pub. L. 114-328). Section 1603 amends 10 U.S.C. 2279 to impose additional prohibitions with regard to acquisition of certain foreign commercial satellite services, such as cybersecurity risk and source of satellites and launch vehicles used to provide the foreign commercial satellite services. Section 1603 also expands the definition of “Covered foreign country” to include Russia. Section 1296 prohibits purchase of items from a Communist Chinese military company. One respondent submitted a public comment in response to the interim rule.

DoD reviewed the public comment received. It was favorable to implementation of the rule. No changes from the interim rule are made in the final rule.

• To implement section 1603 of the NDAA for FY 2018, this rule amended the provision at DFARS 252.225-7049, Prohibition on Acquisition of Commercial Satellite Services from Certain Foreign Entities—Representation, and added a clause to enforce compliance with the representations in the associated provisions. This provision and clause apply to acquisitions not greater than the simplified acquisition threshold (SAT) and acquisitions of commercial items.

• To implement section 1296 of the NDAA for FY 2017, this rule modified the clause at DFARS 252.225-7007, Prohibition on Acquisition of United States Munitions List Items from Communist Chinese Military Companies, to prohibit contractors or subcontractors from acquiring items listed on the 600 series of the CCL that are to be delivered under the contract from any Communist Chinese military company. The rule continues to prescribe the use of this clause for use in solicitations and contracts for items valued at or below the SAT. However, the clause now applies to the acquisition of commercial items, including Commercially Available Off-the-Shelf (COTS) items, if the items are 600 series items on the CCL, or USML items. Although most 600 series items are not commercial items, and USML items are even less likely to be commercial items, it is possible that some of these covered items will be commercial items and must not be purchased from a Communist Chinese military company.

• Section 1603 of the NDAA for FY 2018. A determination and finding was signed by the Director, Defense Procurement and Acquisition Policy, on June 23, 2014, that due to potential risk to national security it would not be in the best interest of the United States to exempt acquisitions not greater than the SAT and acquisitions of commercial items from the applicability of 10 U.S.C. 2279.

• Section 1296 of the NDAA for FY 2017. A determination under 41 U.S.C. 1905 was not required to prescribe DFARS 252.225-7012 for use in solicitations and contracts valued at or below the SAT, because this is consistent with the current applicability of the clause DFARS 252.225-7007, which prohibits acquisitions of items on the USML from Communist Chinese Military companies. The Principal Director, DPC, determined that it is in the best interest of the Government to apply the requirements of section 1296 to contracts for the acquisition of commercial items, including COTS items, to prevent insertion of malicious items into U.S. weapons platforms, information technology systems, and other areas, presenting a threat to our warfighters and their ability to defend national security.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

A final regulatory flexibility analysis (FRFA) has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows:

The reason for this rule is to implement section 1603 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 and section 1296 of the NDAA for FY 2017. Section 1603 of the NDAA for FY 2018 amends 10 U.S.C. 2279, which prohibits acquisition of certain foreign commercial satellite services. Section 1296 of the NDAA for FY 2017 amends section 1211 of the NDAA for FY 2006 to prohibit purchase from any Communist Chinese military company, through a contract or subcontract (at any tier), of goods and services controlled as munitions items on the 600 series of the Commerce Control List (CCL) of the Export Administration Regulations of the Department of Commerce.

The objectives of the rule are as follows:

• Section 1603. To prohibit award of contracts for commercial satellite services to a foreign entity if entering into such contract would create an unacceptable cybersecurity risk. In addition, the definition of covered foreign country is expanded to include Russia (other covered foreign countries are China, North Korea, Iran, Sudan, and Syria). New restrictions are also added with regard to the satellites and launch vehicles to be used to provide the satellite services, but these restrictions do not apply to launches that occur prior to December 31, 2022.

• Section 1296. To prohibit purchase of items originating in the People's Republic of China that meet the definition of goods and services controlled as munitions items when moved to the 600 series of the CCL of the Export Administration Regulations of the Department of Commerce.

There were no significant issues raised by the public comments in response to the initial regulatory flexibility analysis.

DoD estimates that this rule applies to small entities as follows:

• Section 1603. This part of the rule applies to less than 86 small entities. According to Federal Procurement Data System (FPDS) data for FY 2016, 86 small entities were awarded contracts or orders for services under Product Service Code D304 (ADP Telecommunications and Transmission Services), of which commercial satellite services are a subset. Although the focus of the Regulatory Flexibility Act is protection of domestic small business entities that are eligible for assistance from the Small Business Administration, there may be domestic small business entities in the United States that offer the satellite services of a foreign entity that would be restricted by this rule.

• Section 1296. This part of the rule applies to any small entities that intend to provide items on the 600 series of the Commerce Control List under a DoD contract or subcontract. The 600 series consists of items on the Commerce Control List that have an export control classification number of which the third character is a “6”. These items were transitioned from the United States Munitions List (USML) to the 600 series, because they have less than a critical military or intelligence capability than the items that remain on the USML, but they are not currently in normal commercial use. Data on the number of entities that can provide such items, and whether they are small or other than small entities, is not available in FPDS, because these items are not readily identifiable in FPDS and are often acquired through subcontracts.

Projected reporting or recordkeeping requirements of this rule are as follows:

• Section 1603. In addition to the current annual representations as to whether the offeror is, or is not, a foreign entity subject to the prohibitions of the statute; or is, or is not, offering commercial satellite services provided by such a foreign entity, this rule adds five more annual representations as to whether the offeror—

○ Is, or is not offering commercial satellite services using satellites, launched on or after December 31, 2022, that will be designed or manufactured in a covered foreign country;

○ Is, or is not offering commercial satellite services using satellites, launched on or after December 31, 2022, that will be designed or manufactured by an entity controlled in whole or in part by, or acting on behalf of, the government of a covered foreign country;

○ Is, or is not offering commercial satellite services using satellites, launched outside the United States on or after December 31, 2022, using a launch vehicle that is designed or manufactured in a covered foreign country;

○ Is, or is not offering commercial satellite services using satellites, launched outside the United States on or after December 31, 2022, using a launch vehicle that is provided by the government of a covered foreign country; and

○ Is, or is not offering commercial satellite services using satellites, launched outside the United States on or after December 31, 2022, using a launch vehicle that is provided by an entity controlled in whole or in part by, or acting on behalf of, the government of a covered foreign country.

Further information is required if the offeror provides an affirmative response to any of the representations, but such affirmative response and further submission is expected to be extremely rare because of the statutory prohibition and the expected rarity of a waiver by the Under Secretary of Defense for Acquisition and Sustainment or for Policy. Furthermore, this prohibition is only applicable to launches on or after December 31, 2022.

If the satellite service provider responded affirmatively to any of the new representations regarding launch vehicles, if such launches are covered in whole or in part by a contract or other agreement relating to launch services that, prior to June 10, 2018, was either fully paid by the satellite service provider or covered by a legally binding commitment of the satellite service provider to pay for such services, a de minimis amount of information is required with regard to such contract or agreement in order to establish an exception to the associated prohibitions.

• Section 1296. There are no projected reporting or recordkeeping requirements relating to implementation of section 1296. The only compliance requirements are to not purchase 600 series items that originate in the People's Republic of China.

This rule will not have a significant economic impact on any small entities, unless they are offering commercial satellite services subject to the restrictions of this rule or providing 600 series items that originate in the Peoples Republic of China. DoD was not able to identify any alternatives that would reduce the burden on small entities and meet the objectives of the rule.

The interim rule affected the information collection requirements in the provision at DFARS 252.225-7049, currently approved through March 31, 2021, under OMB Control Number 0704-0525, entitled Prohibition on Acquisition of Commercial Satellite Services from Certain Foreign Entities, in accordance with the Paperwork Reduction Act (44 U.S.C. chapter 35). The impact, however, is negligible at this time, because the prohibition on use of certain foreign satellites and launch vehicles only applies to launches outside the United States on or after December 31, 2022. The information collection will be updated to reflect these changes when renewed.

DoD published a proposed rule in the Federal Register at 83 FR 54696 on October 31, 2018, to implement section 888(a) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 114-328), which requires that competition on DoD contracts not be limited through the use of brand name or equal descriptions, or proprietary specifications or standards, in solicitations, unless a justification for such specification is provided and approved in accordance with 10 U.S.C. 2304(f). Six respondents submitted public comments in response to the proposed rule.

DoD reviewed the public comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments is provided, as follows:

The paragraphs at DFARS 211.104 and DFARS 211.170 have been updated to clarify that the use brand name or equal descriptions or proprietary specifications and standards shall be justified and approved when using sealed bidding procedures, negotiated procedures, or simplified procedures for certain commercial items.

Comment: Several respondents expressed support for the rule.

Response: DoD acknowledges the support for the rule.

Comment: A respondent expressed concern that subjecting brand name or equal descriptions to the justification and approval process will discourage the use of solicitations that signal a preference for, but do not require, a specific brand or product.

Response: The language in the rule meets the intent of the statute at section 888(a) of the NDAA for FY 2017. When contracting without providing for full and open competition ( e.g., requiring a specific brand or product particular to one manufacturer, or requiring specifications or standards that are proprietary to a specific entity), contracting officers are still required to justify such an action and have it approved in accordance with the processes of Federal Acquisition Regulation (FAR) 6.3 and DFARS 206.3.

Comment: Several respondents advised that requiring brand name or proprietary equipment typically assures that a certain level of quality and warranty will be conveyed with the item. The respondents expressed concern that DoD may face difficulties ensuring that equivalent products provide the same level of quality assurance as brand name or proprietary equipment during the product's lifecycle. Further, one respondent expressed dissatisfaction with placing additional restrictions on the ability to use brand name descriptions when procuring complex system components, as the action prevents DoD from making the best decisions about the quality of goods being used in the national defense.

Response: The rule does not prohibit the use of brand name descriptions, brand name or equal descriptions, or proprietary specifications and standards, when necessary. Instead, the rule encourages the development of requirement descriptions that enable competition, to the maximum extent possible. For example, if a system component to be used in national defense requires a minimum level of quality and reliability, those physical, functional, and performance needs can be expressed in the description of the requirement and a competitive solicitation may be issued. If the component requirements for quality and reliability can only be expressed in terms of or met by a single brand name description, proprietary specifications or standards, or a brand name or equal description, then the description or specifications and standards may be used in the acquisition; but, only after the action is justified with sufficient facts and rationale and approved in accordance with FAR 6.3 and DFARS 206.3.

Comment: To mitigate life-cycle quality assurance concerns, one respondent suggested that solicitations utilizing brand name or equal descriptions include a comparable life-cycle length for the product, as necessary, to ensure DoD receives an equal product in terms of durability and warranty.

Response: Requirements personnel determine and define the minimum physical, functional, and performance characteristics of a requirement necessary to ensure it will meet DoD's needs. At their discretion, requirements personnel can identify an essential life-cycle length or warranty coverage in the description of the requirement.

Comment: Another respondent suggested that removing the draft proposed text at DFARS 206.302-1(c)(2)(S-70), regarding the use of proprietary specifications and standards, may help alleviate concerns about DoD receiving a necessary level of quality assurance.

Response: The language in the rule meets the intent of the statute at section 888(a) of the NDAA for FY 2017, which requires that competition on DoD contracts is not limited by the use of proprietary specifications or standards in solicitations, unless a justification for such specifications or standards is provided and approved in accordance with FAR 6.3 and DFARS 206.3.

Comment: Some respondents advised that the rule is unclear whether the Government intends to apply the justification and approval requirement to acquisitions valued at or below the SAT.

Response: The rule does not apply the justification and approval requirement to acquisitions valued at or below the SAT. The rule adds text to DFARS 206.3, Other Than Full and Open Competition, and DFARS 213.5, Simplified Procedures for Certain Commercial Items, neither of which apply to acquisitions valued at or below the simplified acquisition threshold. The rule also adds text to DFARS subpart 211.1, Selecting and Developing Requirements Documents.

In the proposed rule, the requirement to execute a justification and approval when using such descriptions or specifications and standards appeared as a standalone statement under DFARS 211.1, with two subparagraphs directing the contracting officer to see the proposed rule text in DFARS 206.3 and 213.5, as applicable. The rule uses the title of FAR 13.5, Simplified Procedures for Certain Commercial Items, only to refer to the procedures for the acquisition of commercial supplies and services in an amount greater than the simplified acquisition threshold but not exceeding $7 million.

The intent of the text in this subpart is to clarify that a justification and approval is required to include brand name or equal descriptions, or proprietary specifications or standards, in DoD solicitations that use sealed bidding, or negotiated acquisition procedures, or simplified acquisition procedures for certain commercial items, as specified in the following two subparagraphs. To clarify the intent of the rule, the text in subpart 211.1 has been changed from a standalone statement to a statement that a justification and approval is required when using the procedures identified in the subsequent subparagraphs; and, to add a reference to “FAR 13.5” after simplified acquisition procedures for certain commercial items.

This rule does not create any new DFARS clauses or amend any existing DFARS clauses.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

This rule is not subject to E.O. 13771, because this rule is not a significant regulatory action under E.O. 12866.

A final regulatory flexibility analysis (FRFA) has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows:

DoD is amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 888(a) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017, which requires that competition in DoD contracts not be limited through the use of brand name or equivalent descriptions, or proprietary specifications or standards, in solicitations unless a justification for such specification is provided and approved in accordance with 10 U.S.C. 2304(f).

The objective of this final rule is to ensure that a justification is executed and approved prior to including brand name or equal descriptions, or proprietary specifications or standards, in a solicitation that uses simplified procedures for certain commercial items or negotiated acquisition or sealed bidding procedures.

No public comments were received in response to the initial regulatory flexibility analysis.

The Federal Procurement Data System (FPDS) does not collect data on contracts awarded using brand name or equal descriptions or contracts that were competed and included proprietary specifications or standards. Currently, brand name or equal descriptions are procured through competitive procedures, but FPDS does not identify the subset of contracts that were awarded competitively using such descriptions.

FPDS can identify the number of offers received in response to a solicitation. This subset can help DoD better identify the number of competitive requirements that may have used such descriptions, specifications, or standards, but only received one offer for various reasons.

As a result, FPDS identifies that there were 127,536 contracts and orders competed and awarded in FY 2017 that only received one offer. Of the 127,536 new awards, 76,179(60%) of these actions were awarded to 9,823 unique small business entities. The proposed rule applies to all entities who do business with the Federal Government and is not expected to have a significant impact on these entities, regardless of business size.

This rule does not include any new reporting, recordkeeping, or other compliance requirements for small businesses.

The rule does not duplicate, overlap, or conflict with any other Federal rules.

There are no known significant alternative approaches to the rule that would meet the proposed objectives.

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR parts 206, 211, and 213 are amended as follows:

This final rule amends the DFARS as follows:

1. Provides direction to contracting officers at DFARS 215.406-2 to see DFARS Procedures, Guidance, and Information (PGI) 215.406-2 for additional information and guidance on Certificates of Current Cost or Pricing Data.

2. Provides direction to contracting officers at DFARS 233.171 to follow the procedures at DFARS PGI 233.171 for reporting information on protests involving the same contract award or proposed award that have been filed at both the Government Accountability Office and the United States Court of Federal Claims.

Therefore, 48 CFR parts 215 and 233 are amended as follows:

DoD is amending the DFARS to remove DFARS clause 252.247-7012, Ordering Limitation, and the associated prescription at DFARS 247.271-3(g). This DFARS clause is included in solicitations and contract when an indefinite-delivery contract for the preparation of personal property for movement or storage, or for performance of intra-city or intra-area movement, is contemplated. The clause advises a contractor of the manner in which the Government will place orders for requisite supplies and services in consideration of the contractor's guaranteed maximum daily capacity.

Federal Acquisition Regulation (FAR) clause 52.216-19, Ordering Limitations, is also included in solicitations and contracts for indefinite-delivery contracts and identifies: The minimum and maximum order quantities or values; a limitation on ordering, within a specified number of days, a total amount or quantity that exceeds the maximum order quantities or values; and, the terms and conditions for placing, accepting, or refusing orders that exceed the maximum ordering limitations identified in the clause. Upon review of the DFARS and FAR clause and based on current transportation practices, DoD determined that the FAR clause adequately addresses the necessary terms and conditions on minimum and maximum ordering limitations for the preparation of personal property for movement or storage, or performance of intra-city or intra-area movement. In the event that supplemental information on ordering in excess of a contractor's guaranteed maximum capability is necessary in a solicitation or contract, the information can be included and more appropriately belongs in the ordering procedures of the contract. As the FAR clause adequately meets DoD needs, this DFARS clause is no longer necessary and can be removed.

The removal of this DFARS text supports a recommendation from the DoD Regulatory Reform Task Force. On February 24, 2017, the President signed Executive Order (E.O.) 13777, “Enforcing the Regulatory Reform Agenda,” which established a Federal policy “to alleviate unnecessary regulatory burdens” on the American people. In accordance with E.O. 13777, DoD established a Regulatory Reform Task Force to review and validate DoD regulations, including the DFARS. A public notice of the establishment of the DFARS Subgroup to the DoD Regulatory Reform Task Force, for the purpose of reviewing DFARS provisions and clauses, was published in the Federal Register at 82 FR 35741 on August 1, 2017, and requested public input. No public comments were received on this clause. The DoD Task Force reviewed the requirements of DFARS clause 252.247-7012, Ordering Limitation, and determined that the DFARS coverage was unnecessary and recommended removal.

This rule only removes obsolete DFARS clause 252.247-7012, Ordering Limitation. The rule does not impose any new requirements on contracts at or below the simplified acquisition threshold and for commercial items, including commercially available off-the-shelf items.

The statute that applies to the publication of the FAR is Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because DoD is not issuing a new regulation; rather, this rule is merely removing an obsolete clause from the DFARS.

E.O.s 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

This rule is not subject to E.O. 13771, because this rule is not a significant regulatory action under E.O. 12866.

Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section III. of this preamble), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR parts 247 and 252 are amended as follows:

The Coastal Pelagic Species (CPS) fishery in the U.S. EEZ off the West Coast is managed under the CPS Fishery Management Plan (FMP). The Pacific Fishery Management Council (Council) developed the FMP pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. The six species managed under the CPS FMP are Pacific sardine, Pacific mackerel, jack mackerel, northern anchovy (northern and central subpopulations), market squid, and krill. The CPS FMP is implemented by regulations at 50 CFR part 660, subpart I.

Management unit stocks in the CPS FMP are classified under three management categories: active, monitored, and prohibited harvest species. Stocks in the active category (Pacific sardine and Pacific mackerel) are managed under catch limits set using regular stock assessments and regular or annual adjustments of target harvest levels based on those stock assessments. Fisheries for these stocks have biologically significant levels of catch, or biological or socioeconomic considerations requiring this type of relatively intense harvest management procedures. In contrast, stocks in the monitored management category (jack mackerel, northern anchovy, and market squid  1 ), are managed under multi-year catch limits and annual reviews of available abundance data without dictated regular stock assessments or annual adjustments to target harvest levels. Fisheries for monitored stocks do not have biologically significant catch levels and, therefore, do not require intensive harvest management. As a result, monitored stocks have been adequately managed by tracking landings and examining available abundance indices. Species in both categories may be subject to management measures such as catch allocation, gear regulations, closed areas or closed seasons. For example, trip limits and a limited entry permit program apply to all CPS finfish. The prohibited harvest species category is comprised only of krill, which is subject to a complete prohibition on targeting and retention.

Compared to the management framework for stocks in the active category, which uses annual estimates of biomass to calculate annual harvest levels, the ACLs for the monitored finfish stocks are not based on annual estimates of biomass or any single estimate of biomass. As described above, ACLs for monitored finfish are set at the ABC levels, which are no higher than 25 percent of the OFL. OFLs are set equal to estimates of MSY—an estimate that is intended to reflect the largest average fishing mortality rate or yield that can be taken from a stock over the long term, if contained in the CPS FMP, or set based on a stock-specific method if deemed more appropriate. Although the control rules and harvest policies for monitored CPS stocks are simpler than the active category control rules, the inclusion of a large non-discretionary buffer between the OFL and ABC both protects the stock from overfishing and allows for a relatively small sustainable harvest while also meeting the goals and objectives of the CPS FMP including helping to achieve optimum yield (OY). In recognition of the low fishing effort and landings for these stocks, the Council chose this type of passive management framework for some finfish stocks in the FMP because it has proven sufficient to prevent overfishing while allowing for sustainable annual harvests, even when the year-to-year biomasses of these stocks fluctuate.

On January 18, 2018, in Oceana, Inc. v. Ross, the U.S. District Court for the Northern District of California granted summary judgment to Oceana, vacating OFL, ABC, ACL for the central subpopulation of northern anchovy (hereafter, simply “central anchovy”). This ruling, in combination with subsequent court rulings, requires NMFS to submit for publication a final rule re-establishing these reference points no later than May 28, 2019. Therefore, NMFS is implementing through this action a new OFL, ABC and ACL that will be in effect beginning in the 2019 fishing year and that would remain in place until new scientific information becomes available to warrant changes. Additional details about management framework for stocks in the CPS FMP, as well as the process used to determine these new reference points, is discussed in the proposed rule for this action (April 8, 2019; 84 FR 13858), and are not repeated here.

NMFS determined that with the limited time available to review and analyze more complex approaches for setting these reference points, the most appropriate path at this time for setting an OFL for central anchovy in accordance with the FMP is to use an approach similar to the approach used by the Council, and approved by NMFS, for developing an OFL and ABC for the northern subpopulation of northern anchovy (NSNA) in 2010.

Consistent with the approach used to set the NSNA reference points, the OFL, ABC, and ACL in this rule are based on averaging three of the available four recent estimates of the relative abundance for central anchovy from NMFS surveys and an estimate of the rate of fishing mortality for central anchovy at MSY or E MSY . 2 The abundance estimates are from the 2016 and 2018 NMFS acoustic-trawl method (ATM) surveys, which are 151,558 mt and 723,826 mt respectively and the 2017 NMFS daily egg production method (DEPM) survey, which is 308,173 mt. An ATM estimate was also available for 2017. However, NMFS evaluated the 2017 estimate compared to the other ATM estimates, and decided, for this rulemaking, to exclude it from the analysis to generate catch limits. NMFS did so because the ATM survey in the summer of 2017 was focused off the northern portion of the U.S. West Coast as well as the west coast of Vancouver Island, British Columbia, Canada, and was not designed to sample the complete range of central anchovy. The principle objectives of this survey were to gather data on the northern stock of Pacific sardine, and to some extent, the northern stock of northern anchovy, and therefore the survey chose not to sample south of Morro Bay, California, which is area where central anchovy are typically found.

The fishing mortality rate estimate is from an analysis that the NMFS Southwest Fisheries Science Center (SWFSC) completed in 2016 as part of an effort examining minimum stock size thresholds for CPS. For potentially deriving an E MSY , this analysis used the most current time-series data available, which comes from the last model-based stock assessment for central anchovy completed for formal management purposes (Jacobson et al. 1995). This analysis produced estimates of F MSY based on eight alternative models. We have used the average of the four best fitting models from that work to calculate an E MSY of 0.239. This methodology, as more fully described in the proposed rule results in an OFL of 94,290 metric tons (mt), an ABC of 23,573 mt, and an ACL of 23,573 mt, all of which are being established through this action.

In determining whether to use the abundance estimates described above, we considered scientific reviews presented to the Council at its April 2018 meeting, which stated that ATM estimates cannot be considered absolute estimates of biomass and should not be used to directly inform management on their own. These reviews concluded that, unless ATM estimates are used as a data source in an integrated stock assessment model, two things would need to occur before they are used to directly inform management, including: (1) Addressing the area shoreward of the survey that is not sampled; and (2) conducting a management strategy evaluation to determine the appropriate way to incorporate an index of abundance into a harvest control rule. However, we are comfortable at this time with using these ATM estimates, because the acoustic estimates represent recent information on the stock and can be considered minimum estimates of the stock size, and using these estimates in a time series to set an OFL, in combination with reducing the OFL by 75 percent to set the ABC and ACL, will prevent overfishing. Therefore, NMFS determined that using these ATM estimates in the manner described above represents use of the best available information for determining the reference points in this rule.

The Council developed, and NMFS approved, the monitored stock management control rules and overfishing specification process as consistent with the best scientific information available. Monitored stock management, including the buffer between the OFL and ABC that is built into the harvest policy for CPS stocks, appropriately accounts for the various types of scientific uncertainty around the OFL estimate and also takes into account other considerations associated with meeting the goals and objectives of the CPS FMP. This action sets the ACL equal to the ABC per the framework in the FMP. The CPS FMP states that the ACL for stocks in the monitored management category are set equal to their ABC or lower if it is determined necessary to prevent overfishing or for other OY considerations. When deciding whether to reduce the ACL to prevent overfishing, the primary condition that would necessitate NMFS setting an ACL at a level lower than ABC would be if NMFS determined that landings could not be adequately tracked in-season to prevent harvests from exceeding the ABC. However, setting the ACL at a level lower than the ABC, or establishing an additional ACT to account for management uncertainty and to prevent overfishing is unnecessary, because managers have the ability to track the landings of this fishery and close the fishery if necessary to ensure the ACL, and, therefore, to ensure that the ABC is not exceeded.

As for setting the ACL at a level lower than ABC for OY considerations, no probative information has been presented that requires reductions in the ACL based on economic or social reasons. Oceana asserted that prey dependency (a potential “ecological consideration” that they note) dictates reductions, however, as discussed in the responses to Comments 5 and 6 below, there is no credible scientific record for that assertion. The ACL will sufficiently limit harvests of central anchovy on an annual basis to both conserve the ecosystem and prevent overfishing of the stock.

These reference points will remain in place until changed conditions necessitate revisions to the FMP framework or changes to the reference points pursuant to the existing framework. If the ACL is reached, or about to be reached, the fishery will be closed until the beginning of the next fishing season. The NMFS West Coast Regional Administrator would publish a notice in the Federal Register announcing the date of any such closure.

This action also implements a minor revision to 50 CFR 660.509 to clarify the NMFS West Coast Regional Administrator's authority to close a CPS fishery by announcement in a notice published in the Federal Register , per the CPS FMP, when an ACL is reached. Currently this section describes the Regional Administrator's authority for implementing in-season closures only when a directed fishery allocation or incidental allocation is reached.

On April 8, 2019, NMFS published a proposed rule for this action and solicited public comments (84 FR 13858), with a public comment period that ended on April 23, 2019. NMFS received 10 comment letters on the proposed rule. Some of the letters included multiple comments, and some letters contained comments similar to comments in other letters. NOAA summarizes and provides responses to the comments below. We note that some comments included recommendations to change the default ABC control rule for monitored stocks, the OY specification for central anchovy, and the central anchovy management framework, but none of these measures were within the scope of this rulemaking. Even though these recommendations were not within the scope of this final rule, for information purposes only, NMFS also respondse to these recommendations below. No changes were made from the proposed rule stage in response to the comments received.

Comment 1: One of the comments provided by the environmental non-governmental organization Oceana stated that the proposed action was not consistent with the CPS FMP, specifically the framework for setting the OFL, ABC, and ACL for stocks in the monitored management category of the FMP. The commenter notes that the prior MSY estimate for central anchovy was based, to some degree, on a long time series of abundance estimates, whereas the proposed MSY value and OFL are only based on 3 years of abundance estimates. The commenter questions NMFS's choice of abundance estimates, as well as why NMFS did not use other available abundance estimates. The commenter notes that by excluding other abundance estimates or not considering them, NMFS does not ensure management measures prevent overfishing if the stock declines below NMFS's selected average biomass. Finally, the commenter states that, in other recent abundance estimates, central anchovy abundance was below the ACL proposed in this action.

Response: NMFS used the best scientific information available to determine the OFL for central anchovy. As described in the preamble of the proposed rule, under the default framework established through Amendment 13 (76 FR 70362, November 14, 2011) the OFL had been set equal to the existing MSY value in the FMP. This MSY value was set in Amendment 8 to the FMP. Using this approach again would have resulted in the OFL that was vacated in the court decision on Oceana v. Ross . For this reason, the commenter is correct that NMFS did not use the default method described in the FMP. Instead, NMFS derived reference points using an alternative approach.

NMFS did not attempt with this rule to “update” or calculate a new MSY value for central anchovy and it was not necessary to do so. As stated in the preamble of the proposed rule, although a default method is described in the FMP for setting reference points for stocks in the monitored management category of the FMP, the OFL may also be determined using a stock-specific method. For example, when determining the OFL for the northern subpopulation of northern anchovy (NSNA), the Council recommended a stock-specific approach to calculate an OFL instead of the FMP default method. Section 4.6.1 of the CPS FMP states that “the Council may use the default harvest control rule . . . for Monitored species unless a better species-specific rule is available.” For this action NMFS determined that although a viable MSY estimate for central anchovy still exists in the FMP, a stock-specific approach was more appropriate for calculating the OFL.

Additionally, although NMFS did not explicitly recalculate a new estimate of MSY for central anchovy, one of the central tenets of the management framework for stocks in the monitored management category is that, unlike stocks in the active management category whose OFL and ABC change every year, the OFL and ABC for stocks in the monitored category remain in place until new scientific information becomes available to warrant changing them or they are moved to the active category. Therefore, not only did NMFS determine that the OFL and ABC in this action are based on the best scientific information available, NMFS also determined that these values are robust enough to remain in place for multiple years and still prevent overfishing.

Although the vacated reference points were set using long-term information and thus were representative of the long-term population structure and variability of central anchovy, the District Court indicated that the vacated reference points were not reflective of recent biomass levels. To address this concern, NMFS attempted to use recent abundance estimates in the current rulemaking. In making this decision, NMFS examined historical estimates from past central anchovy stock assessments, specifically the time series of spawning stock biomass produced by the 1995 assessment. That stock assessment was subject to a formal scientific review and was determined to be the best scientific information available estimating the biomass of central anchovy for 1994. NMFS reviewed this information, to compare more recent abundance estimates to historic biomass estimates. This comparison revealed that the recent ATM and DEPM biomass estimates used to calculate the OFL implemented in this action fell well within the range of historic estimates. The average of the recent three abundance estimates was similar to the average biomass over the historic timeframe. The average spawning stock biomass from 1963 to 1994 using values produced by the 1995 stock assessment was approximately 400,000 mt, with a median of 346,500 mt. Averaging abundance estimates from the three recent years used in this fnal rule (151,558 mt, 308,173 mt, 723,826 mt) produces a very comparable average biomass of 394,519 mt. The highest stock biomass estimate over the historic timeframe according to the 1995 stock assessment was approximately 1.1 million mt, and the lowest was 138,000 mt.

The commenter also states that NMFS did not consider other data sources that provide longer term estimates of central anchovy abundance and that show that the values chosen by NMFS are not valid. Specifically the commenter cites estimates from two scientific papers, a MacCall et al. 2016 (MacCall paper) and a Thayer et al. 2017 paper. (Thayer et al. 2017 is also used by the commenter as a reference to a Thayer 2018 citation that includes estimates only presented as a public comment to the Pacific Fishery Management Council in 2018.) The commenter also cites apparent total abundance estimates from egg and larval data produced by NMFS, other than the DEPM estimate used for this rulemaking. In previous reviews and for multiple reasons, NMFS and other independent scientists determined that the estimates of abundance from the MacCall paper were not the best scientific information available on the status of total central anchovy population. NMFS and other outside scientists had concerns regarding the method used to expand the trend information into estimates of absolute or total abundance. Also, NMFS and outside scientists identified inherent issues with using data from only the California Cooperative Fisheries Investigation (CalCOFI) core region for estimating total biomass, as the spatial scale of this region does not encompass the range of central anchovy, as well as the high uncertainty in the estimates the paper produced. In 2016, NMFS fishery scientists and other outside scientists highlighted technical flaws in the method the MacCall paper used to derive population estimates in presentations to the Council. In NMFS' judgement, these issues rendered the estimates unreliable as a measure of the total stock abundance. NMFS presented an analysis at the Council's November 2016 meeting ( i.e., attempted “DEPM-lite”) that confirmed some of the technical weaknesses with the MacCall paper's estimation method and that same method is used for the estimates in Thayer et al. 2017 and Thayer 2018. The Council's Science and Statistical Committee (SSC) agreed with NMFS's analysis of these technical weaknesses with the methods used to derive the biomass estimates in the MacCall and subsequent Thayer papers. NMFS analysis presented to the Council in November 2016, as well as a separate publication by NFMS scientists (McClatchie et al 2018), also highlighted some of the practical reasons why the stock was likely never as low as calculated or purported by the original MacCall paper and subsequent Thayer papers. For this action, NMFS re-reviewed the MacCall paper and reviewed the subsequent estimates utilizing this same method (Thayer et al 2017 and Thayer 2018) and believes that these estimates do not represent the best scientific information available currently on the population status of central anchovy.

In fact, Thayer 2018, presented revised estimates from Thayer et al. 2017 that were drastically higher than they had previously reported, further raising issues with the accuracy and usability of the MacCall and Thayer estimates for calculating an OFL. Specifically, Thayer et al. 2017, reported population levels for the years 2012-2016, extending the MacCall 2016 estimates beyond 2011 (the last year included in that paper), and stated that central anchovy total abundance in 2015 was 5,300 mt and that the 2016 population level was probably similar to the 2015 estimate. However, Thayer 2018 revised the Thayer et al. 2017 estimates for 2015 and 2016 to 92,100 mt and 153,200 mt respectively; these revised estimates are approximately 30 times higher than the Thayer et al. 2017 estimates from the previous year.

This is not to say that all of the information produced by these papers is uninformative. H, for use as total estimates of the central anchovy population, or for determining a reliable OFL for the purpose of this rule, NMFS determined that the MacCall and Thayer papers did not represent the best scientific information available. The data used by NMFS in this action come from validated and approved methods for determining biomass and therefore represent better estimates of the total biomass of central anchovy and therefore are the best scientific information available for use in determining the OFL. NMFS notes, however, that if one were to compare the MacCall and Thayer time series of biomass estimates to the information that NMFS used to calculate the OFL in this final rule, the range of the estimates ( e.g. both the average and the median) are actually fairly similar. And in one scenario, using the time series of calculated biomass estimates from the Thayer papers actually produces an average biomass value of 425,000 mt., which is higher than the average of the three years used by NMFS of approximately 395,000 mt. Using this higher average biomass to calculate an OFL would subsequently result in a higher OFL than the one in this final rule.

The commenter also relies on a time series of data incorporating the biomass estimates from MacCall and Thayer in stating that the anchovy biomass was below the proposed ACL in recent years. As stated above, NMFS has determined that these estimates of biomass do not represent the best scientific information available regarding the current or past status of the stock. As noted above other information, also directly contradicts the commenter's assertion that the population of anchovy was ever as low as stated in the MacCall paper (lower than 20,000 mt and potentially as low as 6,000 mt) including that actual fishery landings exceeded these levels in the same years while at the same time, large amounts of anchovy are also being consumed by predators. For example, in 2015, just over 17,000 mt of central anchovy were caught in U.S. waters alone, while Thayer et al. 2017 estimated that the population was only 5,000 mt in 2015.

Similarly, the commenter questions NMFS's choice to not use a NMFS ATM estimate of abundance from 2015 as well as apparent egg production estimates and other egg and larval data from CalCOFI data. NFMS did consider the degree to which NMFS could use the 2015 ATM estimate. NMFS determined that this estimate could not be used because the 2015 ATM estimate was calculated during the first year the SWFSC had attempted an ATM estimate for central anchovy, because of the uncertainty associated with the estimate, and because the estimate was never finalized by the SWFSC, determined to be best available science, or published by the SWFSC in a final technical report. As it relates to existing or potential estimates from egg and larval data, the commenter cites an index of abundance presented by NMFS scientists in 2016 for the years 1981-2015, as well as information presented at the November 2018 Council meeting by NMFS SWFSC staff, that the commenter states showed “. . . data on 2017 egg production and corresponding spawning stock biomass estimates for CSNA, indicating the agency is able to convert the relative egg production index to absolute biomass.” The commenter further states that “[t]his presentation also included time series of CSNA spawning biomass from DEPM, DEPM Light, and CalCOFI eggs & larvae for 1982, 1983, 1984, 2009-2011, and 2017, including a spawning biomass of 15,000 mt from 2009-2011”. While it is true that in 2016 NMFS attempted to produce egg production estimates in a manner similar to the method used in the MacCall paper (although NMFS made some modifications to try to correct some of the faults in the method used in the MacCall paper), NMFS reached the same conclusion as it had when reviewing the 2015 ATM estimate, that is, that the data was not suitable for estimating the total biomass of the central anchovy stock. This conclusion is also stated in the presentation the commenter references. NMFS is somewhat unclear as to what information the commenter is referencing when using the phrase “indicating the agency is able to convert the relative egg production index to absolute biomass,” except perhaps there is confusion regarding the various methods used for the data presented. The presentation does include the 2017 DEPM estimate used by NMFS for this action, as well as some historical DEPM point estimates for reference, as well as non-DEPM methods, such as the MacCall estimates; however to clarify, although the 2017 DEPM estimate used by NMFS as part of this rulemaking, the estimates from the MacCall andThayer papers, the attempted DEPM-lite and the egg production estimates referenced by the commenter all use some level of egg data; however, all of these different biomass estimates were produced using different methods. For example some of these methods, including the MacCall and Thayer methods, require taking trends in the egg data and expanding or turning those trends into an estimate of absolute biomass. This type of expansion is one of the technical flaws mentioned above that makes estimates from these methods unreliable for estimating total biomass. Whereas, the 2017 DEPM estimate does not suffer from this same weakness because it is a direct calculation derived using reproductive information from adult fish collected in the same year as the egg and larval information, which is not the case for the MacCall and Thayer biomass estimats. By taking data from adult fish from the same year in which the egg data are collected, there is not a need to expand the egg data into estimates of biomass based adult information from a different time period, such as the 1980's as done in the MacCall paper. In addition, the 2017 DEPM estimate used by NMFS in this final rule was derived using egg data from more than just the core CalCOFI region. The survey data used for this estimate was from north of San Francisco to San Diego, and therefore it covered the majority of the range of central anchovy in U.S. waters. By comparison, the northern extent of the CalCOFI data used in for the MacCall and Thayer estimates is near Point Conception, California.

Comment 2: The Council commented that, although it had limited time to review the proposed rule, it considered the proposed OFL, ABC, and ACL as viable replacements for these reference points for central anchovy at this time. The Council also noted that the CPS FMP allows reference points to be updated, if necessary, as new scientific information becomes available. The Council's comment letter described its future plans to investigate other approaches for setting the central anchovy reference points in the future.

Response: NMFS recognizes that the Council had limited time to review the proposed rule, and appreciates the Council scheduling time at its April meeting to allow the Council and its advisory bodies to review the proposed reference points. NMFS will continue to support Council efforts to research central anchovy reference points and management approaches.

Comment 3: A number of commenters expressed concern over the perceived indefinite and/or static nature of the proposed reference points. Commenters stated that setting reference points indefinitely for central anchovy would not account for the variability of the stock size from one year to the next, and may not prevent overfishing in years when the population is small. Related to this comment was a comment that the ABC control rule NMFS used to set reference points in this action does not prevent overfishing because it does not account for the variability in central anchovy population levels. Oceana also commented that new information shows that the anchovy population is highly variable.

Response: The management framework in the CPS FMP adjusts reference points for some stocks each year based on annual estimates of total biomass, typically from integrated stock assessments. For other stocks, such as central anchovy, the FMP uses conservative catch limits that are not adjusted annually. The CPS FMP management framework is described in further detail in the preamble of this rule and in the proposed rule, but is not the subject of this rulemaking. Therefore, NMFS is not re-opening the CPS FMP management regime or the ABC control rule used in this rule, which provides for a 75 percent reduction to the OFL. This management regime and ABC control rule were recommended by the Council's SSC and approved by NMFS in 2000 through Amendment and reaffirmed through Amendment 13 in 2011.

Although the reference points implemented in this rule will not be adjusted until the Council or NMFS takes a new action to change them, they are not intended to be in place indefinitely. The CPS FMP explicitly allows the Council to recommend changes, updates, or revisions to reference points at any time based on new scientific information. Additionally, these commenters appear to assert that “overfishing” of the stock will occur if, in a single year or a few consecutive years, the biomass of the stock is 75 percent or more below the average biomass used to calculate the OFL. This assertion however assumes that the OFL is equal to the average biomass used in the OFL calculation, when in fact the OFL is substantially lower than average biomass. Conceptually, one can view the OFL as a proxy for MSY and by definition, MSY is a long-term average yield, not biomass, and is intended to represent he amount of fishing mortality that may sustainably occur over the long term, even with variability in stock biomass. The annual estimate of central anchovy stock biomass may be higher or lower than average biomass in a given year, without overfishing occurring. And because the ABC/ACL level has been substantially reduced from the OFL/MSY level, which was reduced from average biomass, the annual estimate of central anchovy biomass may also be above or below this level without overfishing occurring.

Regarding the ABC control rule, i.e. the 75 percent buffer from OFL to ABC, NMFS further notes that this buffer is intended to account for scientific uncertainty in the estimate of stock biomass, and ensures that overfishing does not occur if there are large changes in abundance from one year to the next. The commenter imagined an example stock that declines from 715,000 mt to 167,000 mt over a 3-year period (a 77 percent decline from 1985-1988), and stated that reducing a static OFL by 75 percent is not sufficient to prevent overfishing. The commenter noted that, had an overfishing limit and associated catch limits been set based on the 1985 biomass of 715,000 mt, an ABC set using the 75 percent buffer would not have been sufficient to prevent overfishing.

If NMFS did in fact set the OFL based on an estimate of biomass of 715,000 mt, then the resulting OFL based on the same methodology in this action would be 170,885 mt. In this case, the resulting ABC would be 42,712 mt. If the biomass then declined to 167,000 mt, then a removal of 42,712 mt would only be a 25 percent harvest rate, which would still be precautionary for a fast growing and highly productive species like central anchovy. Additionally, the methodology that NMFS used in this rulemaking for determining the OFL does not set the OFL equal to a single estimate of biomass.

NMFS agrees that there is considerable variability in the central anchovy population, and notes that the original CPS FMP recognized this variability. The analysis used to approve the originally CPS FMP, which is when the Council first adopted the ABC control rule for stocks in the monitored management category, highlights the variability of CPS stock sizes in multiple places. For instance the CPS FMP states that “extreme natural variability and susceptibility to recruitment overfishing are characteristic of clupeoid stocks.” Central anchovy is a clupeoid stock. Additionally, the CPS FMP cites multiple scientific studies showing that central anchovy goes through “boom and bust” cycles and has done so even back to historical time frames (over 1,000 years ago) before there was commercial fishing on the stock. NMFS notes that the concept of potential risks of fishing at a constant level on variable stocks like those in the CPS FMP, is not a new concept as implied by the commenter, and was also recognized in the original CPS FMP and therefore were considered and properly accounted for when determining and adopting the monitored stock control rules. The CPS FMP states, “The original theoretical definition of MSY as a constant level of catch should not be applied in the CPS fishery, because biomass and productivity of most CPS change in response to environmental variability on annual and decadal time scales. For example, the theoretical, deterministic equilibrium MSY catch level for Pacific sardine under favorable environmental conditions may be greater than the biomass of an unfished stock under unfavorable environmental conditions (Jacobson and MacCall 1995). Any reasonable level of MSY as a constant catch will result in low biomass levels and risk to the stock during unproductive periods when abundance tends to decline.” This is why catch levels are not set at MSY under the CPS FMP, instead, the Council and NMFS determined that applying the conservative monitored stock control rule, which sets catch substantially below MSY catch levels alleviate the concern that some of the resulting annual catch levels could be detrimental to the stock.

Furthermore, the available data and information for this stock does not indicate that fishing at similar levels seen over the last 20 years jeopardizes the long-term productive capacity of the stock, even when biomass levels are relatively low. NMFS acknowledges that the stock was likely at relatively lower levels at times in the past decade, but even assuming the stock reached the anomalously low levels calculated by the MacCall and Thayer for 2009-2015, fishing continued at historical levels and the stock recovered very substantially in the immediately following years according to all of the available biomass estimates. Nothing in the recent experience for this stock suggests that “overfishing” is occurring or likely with the ACL adopted by this final rule. To the contrary, the scientific consensus long has been that fishing is not having any significant impact on this stock, and the more recent biomass data only confirm that conclusion.

Finally, as part of NMFS' general responsibilities, we will continue to collect information on the abundance of central anchovy, likely through the results of ATM surveys, and report that information to the Council to ensure adequate conservation and management of the stock. Separately, if NMFS were to observe any anomalously low fluctuations in the population, we would directly inform the Council of the changed conditions and determine if a change in the management of the stock is warranted to conserve central anchovy.

Comment 4: NMFS received two comments, one from the whale watching business and one from a wildlife photographer, expressing concern over potential impacts to humpback whales from anchovy fishing in and around Monterey Bay, California. In particular, commenters stated that fishing may cause localized depletion of anchovy, which is a prey species for humpback whales, and may ultimately impact businesses that involve humpback whales, such as whale watching and other tourism.

Response: Although not specifically requested in the comments as a way to mitigate potential localized depletion effects, we note that area closures to mitigate potential localized depletion or user group conflicts or other measures to restrict anchovy fishing in Monterey Bay or other areas are outside the scope of this action. Humpback whales are globally distributed and are highly migratory. The whales spend spring, summer, and fall feeding in temperate or high-latitude areas of the North Atlantic, North Pacific and Southern Ocean, and migrate to the tropics in winter to breed and calve. Recent NMFS status reports show humpback whales are increasing in abundance throughout much of their range, with some populations that occur off of California to feed no longer warranting listing as endangered under the Endangered Species Act. Humpback whales off the central California coast are highly migratory, breeding in Costa Rica and Mexico and traveling to central California to forage. Humpback whales are believed to be largely opportunistic foragers (Fleming et al., 2015), who target a wide variety of prey species (Whitteveen, 2006). They are known to feed on several types of small schooling fish and krill, and their prey consumption is likely an indicator of dominant prey types in the ecosystem. Each year, the distribution of these whales off the West Coast can shift based on a variety of biological and environmental conditions. These whales typically undertake regular migrations between feeding and breeding areas. Environmental conditions will also vary and influence the distribution of prey species ( e.g., krill and small fishes) the whales need. Given their diverse diet and migratory patterns, it is unlikely that the removal of a portion of one prey source in one localized geographic area would have a substantial negative impact on their population. Additionally, although central anchovy can often be found in Monterey Bay, there is not a separate resident population of central anchovy within Monterey Bay. Along with moving up and down the coast, anchovy also move in and out of Monterey Bay and this movement happens regardless of fishing pressure. This pattern may be linked the whether or not krill, one of their preferred prey species, are available in more offshore waters. NMFS is actively engaged in trying to understand the drivers of humpback whale foraging patterns along the U.S. West Coast to enhance the ecosystem science used in our fisheries management. These include, in particular the patterns witnessed recently of humpback whales moving inshore because of a lack of krill offshore.

Comment 5: Oceana also commented that NMFS should set the ACL below ABC to account for predator needs and other relevant ecological, economic, and social factors, to achieve optimum yield.

Response: Although the ACL can be set lower than the ABC (which has already been reduced from OFL) for OY considerations, as it relates to predator needs NMFS has determined that no further reductions are warranted based on the record. With regard to the potential indirect impact to central anchovy predators through the removal of a prey source, because the ACL is set equal to the ABC, and the ABC has already been substantially reduced to account for scientific uncertainty to protect central anchovy from overfishing and OY considerations, harvesting up to the ACL level should have a minimal effect on central anchovy populations. As discussed above, the recent biomass trends support this conclusion. Populations of anchovy fluctuate frequently, primarily triggered by larger ecosystem and environmental changes and regardless of fishery harvests, which generally amount to a relatively small proportion of central anchovy biomass even at lower biomass levels. Therefore, it is unlikely that removing up to the ACL will reduce the total abundance of central anchovy in a manner that would indirectly impact predator populations. Additionally, given that harvest rates of central anchovy have generally been well below this ACL, with little expectation they will increase significantly in the short term, and the fact that central anchovy is only one component of much larger forage base upon which most predators in the California Current Ecosystem (CCE) along the U.S. West Coast depend, harvest at the level of the ACL would likely not have a discernable impact as a removal of a prey source. Furthermore, there is no direct evidence that the current fishing levels are having direct competition effects on species that feed on central anchovy. The likely reason for this, as reflected in most studies on the subject, is that predators of CPS in the CCE have opportunistic diets and do not depend on one specific prey item. For example, many documented predators of sardines showed no signs of population stress or decline during periods of very low sardine abundance in the CCE from the 1950s through the 1980s when their diets reflected an absence of this prey resource.

NMFS did not identify any other economic, ecological or social reasons to reduce the ACL from the ABC.

NMFS is issuing these regulations under Magnuson-Stevens Act section 305(d), 16 U.S.C. 1855(d).

Pursuant to the procedures established to implement section 6 of E.O. 12866, the Office of Management and Budget has determined that this final rule is not significant.

A final regulatory flexibility analysis (FRFA) was prepared as part of the regulatory impact review. The FRFA describes the economic impact this final rule may have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble and is not repeated here. The results of the analysis are stated below. A copy of this analysis is available from NMFS (see ADDRESSES ).

For Regulatory Flexibility Act (RFA) purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2(a)). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.

The action being implemented through this final rule is the establishment of a new OFL, ABC, and ACL for the central anchovy.

The small entities that would be affected by this action are the vessels that harvest central anchovy as part of the West Coast CPS purse seine fleet. The average annual per vessel revenue in 2016 for the West Coast CPS finfish small purse seine fleet, as well as the few vessels that target anchovy off of Oregon and Washington, was below $11 million; therefore, all of these vessels are considered small businesses under the RFA. Because each affected vessel is a small business, this final rule is considered to equally affect all of these small entities in the same manner. Therefore, this rule would not create disproportionate costs between small and large vessels/businesses.

To evaluate whether this final rule could potentially reduce the profitability of affected vessels, NMFS compared current and average recent historical landings to the proposed ACL (maximum fishing level for each year). The ACL for central anchovy is 23,573 mt. In 2018, approximately 17,040 mt of central anchovy were landed. The annual average harvest from 2009 to 2018 for central anchovy was 7,020 mt. Therefore, although the establishment of a new ACL for this stock is considered a new management measure for the fishery, and is lower than the previous ACL level of 25,000 mt, this action should not result in changes in current fishery operations. As a result, it is unlikely that the ACL implemented in this rule will limit the potential profitability to the fleet from catching central anchovy and thus would not impose significant economic impacts.

The central anchovy fishery is a component of the CPS purse seine fishery off the U.S. West Coast, which generally fishes a complex of species that also includes the fisheries for Pacific sardine, Pacific mackerel, jack mackerel, and market squid. Currently there are 58 vessels permitted in the Federal CPS limited entry fishery off California. Annually, 32 of these 58 CPS vessels landed anchovy in recent years.

CPS finfish vessels typically harvest a number of other species, including Pacific sardine, Pacific mackerel, and market squid, making the central anchovy fishery only one component of a multi-species CPS fishery. Therefore, the revenue derived from this fishery is only part of determining the overall revenue for a majority of the vessels in the CPS fleet, and the economic impact to the fleet from the action cannot be viewed in isolation. CPS vessels typically rely on multiple species for profitability because abundance of the central anchovy stock, like the other CPS stocks, is highly associated with ocean conditions and seasonality. Variability in ocean conditions and season results in variability in the timing and location of CPS harvest throughout the year. Because each species responds to ocean conditions in its own way, not all CPS stocks are likely to be abundant at the same time. Therefore, as abundance levels and markets fluctuate, the CPS fishery as a whole has relied on a group of species for its annual revenues.

NMFS reviewed and evaluated other methods and data sources to update the estimate of MSY or develop a new long-term OFL. However, NMFS had limited time to fully review these types of methods; therefore, an alternative such as this was not fully developed. The CPS FMP also states that the ACL is set equal to the ABC or lower if determined necessary to prevent overfishing or for other OY considerations not already build into the ABC control rule. This action sets the ACL equal to the ABC which is the maximum level it can be set; other alternatives for the ACL could only set it lower, creating a higher potential for negative economic impact on the directly affected fishermen. Additionally, this action maintains the management approach set in the FMP for stocks in the monitored category, which dictates how the OFL and ABC can be set, thereby limiting the alternatives for these values.

Thus, no significant alternatives to this final rule exist that would accomplish the stated objectives of the applicable statutes while minimizing any significant economic impact of this rule on the affected small entities. However, as stated above, this final rule is not expected to have a significant economic impact on the regulated fishermen.

This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.

For the reasons set out in the preamble, 50 CFR part 660 is amended as follows: