On June 11, 2018, USDA proposed to revise its regulations in order to incorporate changes of the FOIA Improvement Act of 2016 and the OPEN Government Act of 2007, to streamline processing procedures, and to incorporate the template published by the Department of Justice Office of Information Policy (“Template”). The proposed regulations were published in full and reflected these substantive changes as well as a renumbering and reorganization of USDA's existing regulations. USDA also removed language it identified as obsolete, redundant, or inconsistent. In keeping with the Department's long-standing commitment to provide improved service by writing in plain language, USDA also revised some of the language to make it more clear, understandable, and useful to our requester community.

USDA invited public comment, and after carefully considering the submissions, has determined to incorporate additional revisions. USDA has also made minor clarifying and numbering corrections, made updates to reflect administrative and organizational changes, and removed duplicative language. USDA has also determined to revise the proposed language in § 1.7 to expand the component's discretion to determine whether to voluntarily undertake the creation of new records. Accordingly, this preamble addresses significant changes to USDA's existing regulations and, where relevant, addresses significant public comments.

In total, USDA received five public submissions to its proposed rule. One commenter expressed general support for the proposed rule. The remaining four submissions addressed a variety of issues to include public reading rooms, affirmative disclosures, fee provisions, treatment of confidential business information, and appeals. Collectively, these comments afforded USDA an opportunity to improve its final regulations and to reconsider the inclusion of language proposed for deletion.

Two commenters raised concerns with USDA's proposed regulations concerning public reading rooms and the affirmative disclosure requirements of 5 U.S.C. 552(a)(2). Specifically, one commenter asserted that the proposed regulation fails to implement a process to manage proactive disclosures for records requested three or more times, because it fails to provide adequate guidance to components about when and how to determine when records are likely to become the subject of subsequent requests, because it removes existing guidance, and because it fails to establish procedures to identify records of public interest for disclosure in an electronic format.

Another commenter raised general concerns with USDA's past and future handling of public reading rooms, including allegations that are the subject of ongoing litigation. USDA declines to address comments that extend beyond the scope of the proposed regulations in this forum. With regard to comments about the proposed regulations, the commenter stated that (i) the proposed regulations should require all USDA components to post indices of frequently requested records with certain functions and information, pursuant to 552(a)(2)(D); (ii) USDA must promptly promulgate implementing regulations to provide “a rational approach to FOIA's affirmative disclosure mandate”; (iii) the regulations provide no clear mechanism or guidance for submitting or processing requests under 552(a)(2)(D); (iv) the regulations eliminate existing guidance for components to determine whether records “are likely to become the subject of requests for substantially the same records” under 552(a)(2)(D)(ii)(I) and that such guidance should be expanded; (v) the regulations eliminate, without explanation, existing language that clarifies circumstances under which components will make frequently requested records available and what records are required to be posted online under 552(a)(2); (vi) USDA eliminates existing requirements concerning indices, handbooks, access to formal adjudication proceedings, and an index of information systems; (vii) USDA should adopt and expand factors from its existing regulations with regard to 552(a)(2)(D), e.g., USDA regulations should require agencies to consider “whether records fall into frequently requested categories of information . . . without regard to whether any particular [ ] record has actually been requested under (a)(3) of the statute” and components should be required to make a determination each time it releases a record as to whether it is a “frequently requested record”; and (viii) USDA regulations should clarify the term “released” under 552(a)(2)(D)(i) to include “making the information available online or by responding to a FOIA request by referring the requester to the agency's website.”

After consideration of the public comments, USDA has determined to include language to assist components in making online publication decisions pursuant to 552(a)(2). Specifically, USDA is keeping language from its existing regulation that identifies the types of records that are required to be published under 552(a)(2) and that assists components in determining what 552(a)(3) FOIA-processed records are “likely to become the subject of subsequent requests for substantially the same records.” USDA declines proposals to expand certain language in contravention of the FOIA statute. Specifically, USDA disagrees with the proposed expansion of 552(a)(2)(D) to require components to consider categories of records without regard to whether any record has actually been requested and released under 552(a)(3). Such a suggestion is contrary to the plain language of the FOIA 552(a)(2)(D)(i) which is limited to records “that have been released to any person under paragraph (3).” Similarly, USDA disagrees with the comment that USDA regulations should clarify the term “released” to include “making the information available online.” Such a change would be contrary to the plain language of the statute, which is limited to certain FOIA-processed records that have previously been released to a person in response to a request under (a)(3). With regard to the comment concerning the indexing requirement of 552(a)(2), USDA notes that the requirement is generally satisfied by providing a distinct link to each document that is posted. More generally, beyond what is discussed above, USDA believes it is not currently necessary or appropriate to elaborate or expand upon the reading room requirements already set forth in the statute with sufficient clarity and precision.

One commenter asserted that USDA's proposed regulations wrongfully delete information regarding the titles and addresses of relevant decision-making officials. This same commenter also contended that the proposed regulations failed to assist the public in identifying where records may be located. USDA disagrees with these comments. As explained in § 1.3(a) of the proposed regulations, USDA maintains a dedicated FOIA website containing contact information for component agencies and an online web portal for submitting requests. In addition, § 1.3(a) states that the public may submit requests to the Departmental FOIA Officer who will route them to the component(s) believed most likely to maintain the requested records. Additional guidance about submitting requests to USDA agencies is contained in § 1.3.

On June 24, 2019, the Supreme Court issued an opinion in Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 915 (2019), concerning FOIA Exemption 4 and the definition of the term “confidential.” USDA has reviewed and updated the language of § 1.8 based on the Argus Leader opinion. The Argus Leader opinion renders moot the majority of comments received on § 1.8. For the reasons explained below, USDA has determined to adopt the language of the Template, subject to some customizations for USDA.

One commenter submitted several comments on § 1.8 and raised concerns with USDA's proposed handling of information which may be determined to be confidential business information within the meaning of Exemption 4. The commenter objected to (i) USDA's proposal to hold in abeyance a FOIA request until any “reverse FOIA” lawsuits are fully resolved. The commenter also argued that (ii) USDA omits the former requirement that business submitters explain item-by-item why disclosure would cause substantial harm to its competitive position; (iii) USDA has attempted to improperly codify a test established in Critical Mass Energy Project v. Nuclear Regulatory Commission, 975 F.2d 871 (D.C. Cir. 1982); and (iv) USDA fails to establish a strict timeline for submission of business submitter objections to disclosure.

The USDA's decision to adopt the Template language and the Argus Leader decision render moot comments (i), (ii), (iii) and (iv).

One commenter suggested that USDA regulations improperly require that an appeal be received within 90 days. USDA accepts that comment and has revised the regulations to state that appeals must be postmarked or transmitted by email no later than 90 calendar days from the date of the adverse determination. This section is also revised to include language regarding engaging in dispute resolution services provided by the Office of Government Information Services (“OGIS”). These revisions also implement changes of the FOIA Improvement Act of 2016.

Two commenters asserted that USDA should not cite to Uniform Freedom of Information Act Fee Schedule and Guidelines (“OMB Fee Guidelines”) which are unreliable and no longer authoritative. USDA has determined to include references to the OMB Fee Guidelines, consistent with the Template. To the extent that the guidelines conflict with the FOIA statute, USDA acknowledges that the statute would control. For this reason, USDA declines to remove its citations.

One commenter objected to the removal of the provision which allowed the agency in its discretion to waive or reduce fees regardless of whether the requester had sought a waiver or reduction. The commenter was concerned about the potential negative effect on unsophisticated requesters or requesters who do not adequately understand the requirement. USDA has determined that it will help ensure the equal treatment of requesters by declining to include such language in the revised regulations. Further, USDA's FOIA website provides guidance to all requesters about things to consider before submitting a FOIA request, including fee waiver requests.

One commenter asserted that USDA should eliminate the new provision under which the agency will close a request if advance payment is not received within 20 working days. USDA accepts this comment and has deleted this new provision.

One commenter asserted USDA's proposed regulations improperly make the fee waiver standard more stringent by requiring an “identifiable” operation of the government “with a connection that is direct and clear, not remote or attenuated.” Also, the commenter stated that USDA's proposed regulations improperly require that the information “must be meaningfully informative” and that “disclosure of information in the public domain in either the same or a substantially identical form would not contribute such understanding.” USDA declines to accept comments concerning the fee waiver provision because it is consistent with the FOIA statute and the language comes from the Template.

One commenter suggested that USDA has deviated from the six-factor test for determining whether disclosure is in the public interest for fee waiver purposes and places the burden on the requester exclusively to demonstrate there is no commercial interest. USDA disagrees with these comments. USDA's updates do not substantively change the analysis but instead present the factors in a way that is clearer to both components and requesters. Rather than six factors, the revised section establishes three factors that address substantively the same issues formerly set forth in six factors. Specifically, a requester should be granted a fee waiver if the requested information (1) sheds light on the activities and operations of the government; (2) is likely to contribute significantly to public understanding of those operations and activities; and (3) is not primarily in the commercial interest of the requester. This streamlined description facilitates easier understanding and application of the statutory standard.

Two commenters asserted that the proposed regulations included language that was inconsistent with the OPEN Government Act of 2007 which amended the statutory definition of representative of the news media to eliminate the “organized and operated” factor. USDA agrees with this comment and revises App. A (2)(b)(4)(i) accordingly.

One commenter asserted that USDA should consider the nature of the requester, not the nature of the request, in determining eligibility for news media fee category status. The commenter further contended that, while case-by-case inquiry may be appropriate for new entities without a track record, the FOIA focuses on the requester not on the request for this purpose. USDA's proposed language is consistent with the FOIA statute; therefore USDA declines to accept this comment.

One commenter suggested that USDA should use a broader standard for determining whether a product meets the “distinct work” standard, to include a “simple press release commenting on records” or “editorial comment.” USDA declines to accept this comment proposing to articulate a broader “distinct work” standard. USDA disagrees that the language of the proposed regulation is narrow and notes that it is consistent with the statutory definition and the Template.

One commenter suggested that USDA should indicate that any examples of news media entities in its regulations are non-exhaustive, in order to accommodate evolving news media formats. USDA agrees with this comment and added clarifying language to make clear that the list of examples is not exhaustive.

One commenter suggested that USDA should clarify its regulations to make clear that litigation itself is not strictly a commercial activity because the reference to litigation in the “commercial requesters” definition could adversely affect public interest groups and nonprofits that engage in litigation. USDA declines to accept this comment. USDA considers fee determinations on a case-by-case basis.

USDA also received a few comments regarding the definition of an educational institution. USDA agrees with the comment that teachers and students may qualify for reduced fees and therefore has elected to revise its definition accordingly.

One commenter suggested that the proposed cost of authentication and certification of records is exorbitant. USDA accepts the comment regarding the potential for increased costs for authentication and certification of records. Accordingly, USDA has determined to use the language of the existing regulations. Another comment proposed that authentication and certification services should be eligible for fee waivers automatically if a fee waiver is otherwise granted to the FOIA requester or if the requester qualifies for a fee waiver under the same conditions as FOIA requests. USDA disagrees with this proposal because those services are outside of the FOIA and because of the potential impact on processing times and agency resources.

One commenter asserted that the proposed regulations eliminate any discussion of the annual reports. USDA prepares and posts online its reports in accordance with the requirements of the FOIA.

One commenter objected to the elimination of language requiring USDA components to provide requesters a date by which the component expects to issue a determination in the event that the component misses a FOIA deadline. USDA accepts this comment and has added language from the Template.

One commenter suggested that USDA include the foreseeable harm standard in its regulations. USDA declines to accept this comment as the foreseeable harm standard is codified in the FOIA statute.

One commenter asserted that USDA's proposed regulations eliminate a provision concerning routing misdirected requests outside of USDA. USDA has elected to omit this language because agency employees are not necessarily familiar with the missions of other federal agencies and such a provision risks further delay by misdirecting requests.

This rule has been drafted and reviewed in accordance with Executive Order 12866, 58 FR 51735 (Sept. 30, 1993), section 1(b), Principles of Regulation, and Executive Order 13563, 76 FR 3821 (January 18, 2011), Improving Regulation and Regulatory Review. The rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the rulemaking has not been reviewed by the Office of Management and Budget. This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866. Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

USDA, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Under the FOIA, agencies may recover only the direct costs of searching for, reviewing, and duplicating the records processed for requesters, and only for certain classes of requesters and when particular conditions are satisfied. Thus, fees assessed by the USDA are nominal.

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (as amended), 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This AD is a final rule that involves requirements affecting flight safety, and the FAA did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, the FAA invites you to participate in this rulemaking by submitting written comments, data, or views. The FAA also invites comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. The FAA will file in the docket all comments received, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. The FAA will consider all the comments received and may conduct additional rulemaking based on those comments.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2019-0152-E, dated June 28, 2019, to correct an unsafe condition for Airbus Helicopters (AH), formerly Eurocopter, Eurocopter France, Model EC 225 LP helicopters with MGB part number (P/N) 332A325001.XX, P/N 332A325002.XX, or P/N 332A325003.XX equipped with main reduction gear module P/N 332A325011.XX, P/N 332A325012.XX, or P/N 332A325013.XX in post-mod 07-53016 configuration installed, where XX represents any dash number, and with RH free wheel shaft P/N 332A322191.20 (16-roller free wheel) installed. EASA advises of a report of wear of the ramps and a broken roller cage of the RH free wheel shaft that were discovered during overhaul of an MGB. EASA states an investigation to determine the root cause of the occurrence is ongoing. EASA advises that this condition, if not corrected, could lead to reduced capacity to transfer one engine inoperative (OEI) power delivered by the right side engine following an event of in-flight shut down of the left side engine, resulting in reduced control of the helicopter.

Accordingly, the EASA AD requires repetitive replacement of the affected MGBs, installing placards that specify an operational limitation for OEI training flights, and introduces conditions for installing a replacement MGB. EASA states its AD is considered an interim action and further AD action may follow.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA of the unsafe condition described in the EASA AD. The FAA is issuing this AD after evaluating all information provided by EASA and determining the unsafe condition exists and is likely to exist or develop on other helicopters of the same type design.

Airbus Helicopters has issued Emergency Alert Service Bulletin No. 04A016, Revision 1, dated June 28, 2019, which specifies procedures to determine the total hours TIS of the free wheel shafts, a life limit schedule and instructions to replace the MGB or RH free wheel shaft, and instructions to install one or two labels (placards) in view of both pilots about OEI training procedures.

This AD requires determining the total hours TIS of each free wheel shaft. For the purpose of this AD, if the total hours TIS of the RH and LH free wheel shafts are different, the greater number of total hours TIS will be considered as the RH free wheel shaft total hours TIS. If the RH free wheel shaft has accumulated 1,000 or more total hours TIS, or before the RH free wheel shaft exceeds 1,000 total hours TIS, this AD requires replacing the MGB with an airworthy MGB or replacing the RH free wheel shaft. This AD also requires installing placard(s) in full view of both pilots and revising the RFM for your helicopter with OEI training procedures pertaining to the “TRAINING IDLE” switches. As an option, this AD specifies installing alternate MGB configurations that would constitute terminating action for the requirements of this AD.

The EASA AD requires repetitive replacement of the MGB, whereas this AD requires an initial replacement of the MGB instead. The FAA plans to publish a notice of proposed rulemaking to give the public an opportunity to comment on this longer-term requirement. This AD requires revising the RFM for your helicopter, whereas the EASA AD does not.

The FAA considers this AD to be an interim action. Repetitively replacing the MGB at a longer interval is also necessary. However, the planned compliance time for the repetitive replacement would allow enough time to provide notice and opportunity for prior public comment on the merits of the replacement.

The FAA estimates that this AD affects 23 helicopters of U.S. Registry. The FAA estimates that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour.

Determining the hours TIS of each free wheel shaft takes about 0.25 work-hour, for an estimated cost of $21 per helicopter and $483 for the U.S. fleet. Installing placard(s) and revising the RFM for your helicopter takes about 0.5 work-hour for an estimated cost of $43 per helicopter and $989 for the U.S. fleet. Replacing an MGB takes about 40 work-hours and parts cost about $850,000 (overhauled), for an estimated cost of $853,400.

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

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule because the required corrective actions must be completed within 10 hours TIS. Therefore, notice and opportunity for prior public comment are impracticable and contrary to public interest pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the reason(s) stated above, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

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.

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, I certify that this AD:

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

(2) Will not affect intrastate aviation in Alaska.

The FAA prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

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

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

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

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

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

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

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

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

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

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

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary.

This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

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

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

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

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

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

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

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

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

On June 16, 2017, President Trump announced changes to U.S. policy toward Cuba intended to: Enhance compliance with United States law; channel funds toward the Cuban people and away from the regime; encourage the Cuban government to address oppression and human rights abuses; further the national security and foreign policy interests of the United States, as well as express solidarity with the Cuban people; and lay the groundwork to improve human rights, encourage the rule of law, foster free markets and free enterprise, and promote democracy in Cuba. The President's policy is stated in the National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba (NSPM-5), dated June 16, 2017 (82 FR 48875, October 20, 2017). NSPM-5 also directs the Secretary of Commerce, as well as the Secretaries of State and the Treasury, to take certain actions to implement the President's Cuba policy. On November 9, 2017, the Department of Commerce's Bureau of Industry and Security (BIS) and the Department of the Treasury's Office of Foreign Assets Control (OFAC) published rules in the Federal Register to implement certain portions of NSPM-5 (82 FR 51983 and 82 FR 51998, respectively). The Department of State also published the List of Restricted Entities and Subentities Associated with Cuba (Cuba Restricted List) (82 FR 52089), which is used by BIS in reviewing license applications submitted pursuant to the Export Administration Regulations (EAR) (15 CFR parts 730 through 774) and by OFAC in prohibiting certain direct financial transactions pursuant to the Cuban Assets Control Regulations (CACR) (31 CFR part 515). Additional entities and subentities have subsequently been added to the Cuba Restricted List (83 FR 57523, 84 FR 8939, 84 FR 17228, and 84 FR 36154). Please also see the Department of State's website at: https://www.state.gov/cuba-sanctions/cuba-restricted-list/.

On April 17, 2019, the White House announced that the Administration is holding the Cuban regime accountable for repressing the Cuban people and supporting the Maduro regime in Venezuela through multiple actions, including by restricting non-family travel to Cuba, or in other words, “veiled tourism.” BIS and OFAC published rules in the Federal Register on June 5, 2019, to implement restrictions on non-family travel to Cuba (84 FR 25986 and 84 FR 25992, respectively). Additionally, OFAC published a rule in the Federal Register on September 9, 2019, to remove certain authorizations for remittances to Cuba and amend the general license relating to “U-turn” financial transactions to eliminate the authorization to process such transactions and instead only allow the rejection of such transactions (84 FR 47121).

The Cuban government has generated revenue or otherwise benefited from certain exports and reexports to Cuba. Consequently, BIS is amending the EAR to further restrict the Cuban government's access to items subject to the EAR, thereby supporting the Administration's policy to hold the Cuban regime accountable for its malign activities at home and abroad. Any party that violates the EAR may be subject to criminal and/or civil penalties specified in section 1760 of the Export Control Reform Act of 2018 (50 U.S.C. 4801-4852), and any other sanctions available under U.S. law.

Consistent with the embargo of Cuba, BIS authorization in the form of a license or license exception is required for the export or reexport to Cuba of all items subject to the EAR. Section 746.2(b) of the EAR explains that license applications for the export or reexport to Cuba of items requiring a license are subject to a general policy of denial unless otherwise specified in that paragraph. This rule amends paragraph (b)(2)(v) to remove the general policy of approval for applications to export or reexport aircraft leased to Cuban state-owned airlines. Consequently, license applications to lease aircraft to Cuban state-owned airlines are now subject to the general policy of denial in § 746.2(b) of the EAR. BIS will also revoke licenses within seven days, through individual notifications to licensees pursuant to § 750.8 of the EAR, for aircraft leased to Cuban state-owned airlines under the former policy. BIS is making these changes because the Cuban government generates revenue from tourists that it transports on leased aircraft.

Section 746.2(a)(1) of the EAR identifies the license exceptions, or portions thereof, that are available for exports and reexports to Cuba, including paragraphs (a) and (d) of License Exception AVS in § 740.15 for, respectively, certain aircraft and vessels on temporary sojourn.

Paragraph (a) of License Exception AVS authorizes the export or reexport to Cuba of certain aircraft on temporary sojourn, provided all of the associated terms and conditions are met. Paragraph (a)(3) identifies the criteria that must be met if a flight is to qualify as a temporary sojourn. This rule adds paragraph (a)(3)(x) to clarify that aircraft leased to or chartered by a Cuban national are not eligible for License Exception AVS. New paragraph (a)(3)(x) also clarifies that aircraft are not eligible for License Exception AVS if leased to or chartered by a national of a destination in Country Group E:1 (Terrorist supporting countries). Additionally, this rule adds Cuba to restrictions in paragraphs (a)(1)(i) and (ii) of License Exception AVS regarding the sale or transfer of operational control of foreign registered aircraft and to restrictions in paragraphs (a)(3)(iv) through (ix) of License Exception AVS regarding the operational control of foreign and U.S. registered aircraft. Instead of identifying Cuba by name, this rule adds references to Country Group E:2 (Unilateral embargo), which currently only includes Cuba. For consistency, this rule changes a reference to Cuba in paragraph (a)(2)(ii) of License Exception AVS to Country Group E:2. This rule also clarifies the existing list of aircraft eligible for paragraph (a)(2)(i) of License Exception AVS.

Paragraph (d) of License Exception AVS authorizes the export or reexport to Cuba of cargo vessels for hire on temporary sojourn, provided all of the associated terms and conditions are met. Paragraph (d)(3) identifies the criteria that must be met if a voyage is to qualify as a temporary sojourn. This rule adds paragraph (d)(3)(v) to clarify that vessels leased to or chartered by a Cuban national are not eligible for License Exception AVS. New paragraph (d)(3)(v) also clarifies that vessels are not eligible for License Exception AVS if leased to or chartered by a national of a destination in Country Group E:1. Additionally, this rule adds Cuba to the restriction in paragraphs (d)(1)(i) and (ii) of License Exception AVS regarding the sale or transfer of operational control of foreign flagged vessels and to restrictions in paragraphs (d)(2)(v) through (vii), (d)(3)(iv), and (d)(4)(v) through (vii) of License Exception AVS regarding the operational control of and related activities involving foreign and U.S. flagged vessels. As is done in paragraph (a), the changes to paragraph (d) reference Country Group E:2 instead of referencing Cuba by name.

License applications for the export or reexport of aircraft or vessels leased to or chartered by, or on the behalf of, the Cuban government, including state-owned airlines or other enterprises, will generally be denied pursuant to the licensing policy in § 746.2(b) of the EAR. License applications for aircraft or vessels leased to or chartered by other nationals of Cuba will be reviewed pursuant to the applicable licensing policy described in § 746.2(b) of the EAR. BIS is making these changes to License Exception AVS because the Cuban government has generated revenue or otherwise benefited from the lease or charter of aircraft and vessels.

Pursuant to part 734 of the EAR, foreign-made items located abroad are subject to the EAR under specified circumstances, including when they incorporate, or are bundled or commingled with, specified levels of controlled U.S.-origin commodities, software, or technology. Paragraph (a) of § 734.4 identifies items for which there is no de minimis level, and thus are subject to the EAR if they contain any controlled U.S.-origin content, and paragraph (b) identifies special requirements for certain encryption items. When paragraphs (a) and (b) of § 734.4 are not applicable, either the 10-percent de minimis rule described in paragraph (c) or the 25-percent de minimis rule described in paragraph (d) applies, depending upon the destination of the items.

This rule amends § 734.4(d) of the EAR to make Cuba subject to the general 10-percent de minimis rule in § 734.4(c). Now, a BIS license or an applicable license exception specified in § 746.2(a)(1) of the EAR is required for the reexport to Cuba of foreign-made items that contain greater than 10 percent of U.S.-origin content or, when § 734.4(a) applies, contain any U.S.-origin content. License applications for such items are subject to a general policy of denial, unless eligible for another licensing policy described in § 746.2(b) of the EAR. Instead of referencing Cuba by name in § 734.4, this rule makes Cuba subject to the general 10-percent de minimis rule by referencing Country Group E:2. BIS is making this change to de minimis because the Cuban government could generate revenue or otherwise benefit from the receipt of items containing greater than 10 percent of U.S.-origin content.

License Exception Support for the Cuban People (SCP) in § 740.21 of the EAR was created to authorize certain exports and reexports to Cuba that are intended to support the Cuban people by improving their living conditions and supporting independent economic activity; strengthening civil society in Cuba; and improving the free flow of information to, from, and among the Cuban people. Items exported or reexported pursuant to certain provisions of License Exception SCP may be consigned to or, in some instances, used by the Cuban government provided the items would be used to benefit the Cuban people.

Paragraph (c)(1) of License Exception SCP authorizes the export or reexport to Cuba of certain donated items for use in scientific, archeological, cultural, ecological, educational, historic preservation, or sporting activities provided specified conditions are met. This rule amends paragraph (c)(1) to exclude donations to organizations administered or controlled by the Cuban government or communist party. Consequently, an exporter or reexporter wanting to donate items to organizations administered or controlled by the Cuban government or communist party must submit a license application to BIS, which will be reviewed pursuant to the licensing policy in § 746.2(b) of the EAR. This change will give the U.S. Government the opportunity to determine whether donations to those entities would benefit the Cuban people. Paragraph (c)(1) of License Exception SCP is still available for eligible donations to the Cuban people and civil society organizations provided the items would be used to support activities independent of the Cuban government and communist party.

Paragraph (d)(1) of License Exception SCP authorizes the export or reexport to Cuba of certain items for telecommunications infrastructure creation and upgrades. This rule amends paragraph (d)(1) to clarify that it is limited to eligible items for the creation and upgrades of telecommunications infrastructure to improve the free flow of information to, from, and among the Cuban people. For infrastructure items that would be used to connect specific end users ( i.e., non-backbone items), those items may be used to connect individual Cubans or the Cuban private sector only. A license is required for the export or reexport to Cuba of items for telecommunications infrastructure that would be used to connect other specific end users ( e.g., Cuban government ministries and state-owned hotels), which will be reviewed pursuant to the licensing policy in § 746.2(b) of the EAR. Separately, License Exception Consumer Communications Devices (CCD) in § 740.19 of the EAR authorizes the export or reexport to Cuba of certain consumer communications devices for use by eligible individuals and independent non-governmental organizations.

This rule also revises paragraph (e)(2) of License Exception SCP to eliminate an authorization for items to be given away for free for promotional purposes. This provision regarding such promotional items has been primarily beneficial to the Cuban government since it has a virtual monopoly on importing items into the country. However, items for use by the Cuban private sector for private sector economic activities remain eligible for paragraph (b)(1) of License Exception SCP, provided the associated terms and conditions are met. License applications for the export or reexport of promotional items to the Cuban government will be reviewed pursuant to the general policy of denial in § 746.2(b) of the EAR.

BIS is making these changes to License Exception SCP to ensure that the Cuban people, not the Cuban government or communist party, benefit from items exported or reexported pursuant to the license exception.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866.

2. This final rule is not subject to the requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because it is issued with respect to a national security function of the United States. This rule supports the Administration's national security and foreign policy objectives per the direction provided to agencies in National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba (NSPM-5). National Security Presidential Memoranda are used to promulgate Presidential decisions on national security matters. Thus, the primary direct benefit of this rule is to improve national security. Restricting additional exports and reexports to Cuba, including leased aircraft, will reduce the ability of the Cuban government, including its military, intelligence, and security services, to generate revenue or otherwise derive benefits from the use of items subject to the EAR. Accordingly, this rule meets the requirements set forth in the April 5, 2017, OMB guidance implementing E.O. 13771. See https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf.

3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

4. Pursuant to section 1762 of the Export Control Reform Act of 2018 (50 U.S.C. 4801-4852), enacted as part of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date.

5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, 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.

6. Notwithstanding any other provision of law, no person may be required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves a collection currently approved by OMB under control number 0694-0088, Simplified Network Application Processing System. This collection includes, among other things, license applications, and carries a burden estimate of 42.5 minutes for a manual or electronic submission for a total burden estimate of 31,878 hours. BIS expects the burden hours associated with this collection to minimally increase and have limited impact on the existing estimates. Any comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, may be sent to Jasmeet K. Seehra, Office of Management and Budget (OMB), by email to Jasmeet_K._Seehra@omb.eop.gov, or by fax to (202) 395-7285.

For the reasons set forth in the preamble, 15 CFR chapter VII, subchapter C, is amended as follows:

Because EPA received adverse comment, we are withdrawing the direct final rule approving revisions to the Idaho SIP relating to revisions to the Idaho crop residue burning fee billing procedures, published on September 3, 2019 (84 FR 45918). We stated in that direct final rule that if we received adverse comment by October 3, 2019, we would publish a timely withdrawal in the Federal Register and the direct final rule would not take effect. We subsequently received an adverse comment on that direct final rule prior to October 3, 2019. Accordingly, we are withdrawing the direct final rule. We will address the comment in a subsequent final action based upon the parallel proposed rule also published on September 3, 2019 (84 FR 45930). As stated in the direct final rule and the parallel proposed rule, we will not institute a second comment period on this action.

On April 16, 2019, EPA published a Notice of Proposed Rulemaking (NPRM) proposing to approve various Virginia air pollution control requirements for inclusion in the updated compilation of “Commonwealth of Virginia Requirements Applicable to OCS Sources,” dated February 20, 2019, which is incorporated by reference into 40 CFR part 55. See 84 FR 15549.

Pursuant to 40 CFR 55.12, consistency reviews will occur (1) at least annually; (2) upon receipt of a Notice of Intent (NOI) under 40 CFR 55.4; or (3) when a state or local agency submits a rule to EPA to be considered for incorporation by reference in 40 CFR part 55. This action is being taken in response to the submittal of a NOI, received on January 28, 2019, by Dominion Energy Virginia, for the proposed installation of a 12-megawatt offshore wind technology testing facility located approximately 24 nautical miles east of the City of Virginia Beach, Virginia. 1

Section 328(a) of the CAA requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of States' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into 40 CFR part 55 as they exist onshore. This limits EPA's flexibility in deciding which requirements will be incorporated into 40 CFR part 55 and prevents EPA from making substantive changes to the requirements it incorporates. As a result, EPA may be incorporating rules into 40 CFR part 55 that do not conform to all of EPA's state implementation plan (SIP) guidance or certain requirements of the CAA. Consistency updates may result in the inclusion of state or local rules or regulations into 40 CFR part 55, even though the same rules may ultimately be disapproved for inclusion as part of the SIP. Inclusion in the OCS rule does not imply that a rule meets the requirements of the CAA for SIP approval, nor does it imply that the rule will be approved by EPA for inclusion in the SIP.

EPA reviewed Virginia's rules for inclusion in 40 CFR part 55 to ensure that they are rationally related to the attainment or maintenance of Federal or state ambient air quality standards and compliance with part C of title I of the CAA, that they are not designed expressly to prevent exploration and development of the OCS, and that they are potentially applicable to OCS sources. See 40 CFR 55.1. EPA has also evaluated the rules to ensure they are not arbitrary or capricious. See 40 CFR 55.12(e). In addition, EPA has excluded administrative or procedural rules, 2 and requirements that regulate toxics which are not related to the attainment and maintenance of Federal and state ambient air quality standards. Other specific requirements of the consistency update and the rationale for EPA's proposed action are explained in the April 16, 2019 NPRM and will not be restated here.

EPA received three sets of comments on the April 16, 2019 NPRM. See 84 FR 15549. A summary of the relevant comments and EPA's responses are discussed in this Section. A copy of the comments can be found in the docket for this rulemaking action.

Comment: The Virginia Department of Environmental Quality (VADEQ) requested that EPA remove references to state-only toxics programs from being incorporated by reference into 40 CFR part 55, as proposed in EPA's April 16, 2019 NPRM. See 84 FR 15549. This affects the following sections of the Virginia Administrative Code (VAC): 9VAC5-40-350, 9VAC5-40-790, 9VAC5-40-970, 9VAC5-40-1880, 9VAC5-40-2310, 9VAC5-40-2460, 9VAC5-40-2610, 9VAC5-40-3330, 9VAC5-40-3480, 9VAC5-40-4830, 9VAC5-40-5270, 9VAC5-40-6390, 9VAC5-40-6690, 9VAC5-40-6880, 9VAC5-40-7030, 9VAC5-40-7470, 9VAC5-40-8090, 9VAC5-50-320, and Article 4 (9VAC5-60-200 et seq. ) and Article 5 (9VAC5-60-300 et seq. ) of 9VAC5-60 in their entirety.

EPA Response: At Virginia's request, in this final rulemaking action, EPA removed all references to the air toxics regulations in the compilation of the “Commonwealth of Virginia Requirements Applicable to OCS Sources” in 40 CFR part 55. EPA does not believe removal of the toxics sections of VAC will have any adverse impact on VADEQ's ability to properly implement air quality permitting for OCS sources, since they are not related to the attainment and maintenance of Federal and state ambient air quality standards.

Comment: VADEQ requested that Part I (9VAC5-80-5 et seq. ) of 9VAC5-80 be removed in its entirety from 40 CFR part 55, noting that this section, Permit Actions Before the Board, is a requirement of state code and cannot be implemented or enforced by EPA.

EPA Response: At Virginia's request, in this final rulemaking action, EPA removed Part I of 9VAC5-80 from the compilation of the “Commonwealth of Virginia Requirements Applicable to OCS Sources” in 40 CFR part 55. EPA does not believe removal of Part I (9VAC5-80-5 et seq. ) of 9VAC5-80 will have any adverse impact on VADEQ's ability to properly implement air quality permitting on OCS sources, since they are not related to the attainment and maintenance of Federal and state ambient air quality standards.

Additionally, for clarification purposes, because Virginia has been delegated authority to implement and enforce the requirements of the OCS Regulations within 25 miles of Virginia's seaward boundary, the inclusion of a regulation into 40 CFR part 55 does not designate EPA as the appropriate authority to implement or enforce those provisions of Virginia's regulations, but, rather, reinforces that VADEQ has the ability to implement and enforce those potentially applicable provisions on OCS sources, for which Virginia is designated as the COA. See 77 FR 44231 (July 27, 2012).

Comment: VADEQ noted a typographical error in EPA's April 16, 2019 NPRM under Article 1 (9VAC5-80-50 et seq. ) of Part II of 9VAC5-80, the effective date of 03/02/2011 should be corrected to be 11/16/2016.

EPA Response: EPA agrees with the commenter and has made the requested typographical correction.

Comment: VADEQ requested that Part IV (9VAC5-130-100) of 9VAC5-130 be removed. VADEQ noted that this section, Local Ordinances, is a template for the use of local jurisdictions to develop their own open burning ordinances. VADEQ also noted that this is a requirement of state code and cannot be implemented or enforced by EPA.

EPA Response: At Virginia's request, in this final rulemaking action, EPA removed Part IV (9VAC5-130-100) of 9VAC5-130 from the compilation of the “Commonwealth of Virginia Requirements Applicable to OCS Sources” in 40 CFR part 55. EPA does not believe removal of Part IV (9VAC5-130-100) of 9VAC5-130 will have any adverse impact on VADEQ's ability to properly implement air quality permitting on OCS sources, since they are not related to the attainment and maintenance of Federal and state ambient air quality standards.

In a previous response to comment, EPA addressed VADEQ's statement regarding EPA's ability to implement or enforce VAC provisions and will not be restating that here.

Comment: One commenter stated that regulating emissions from OCS sources within 25 miles of the coast to make them in accordance with onshore sources could make existing OCS sources within 25 miles obsolete. The commenter further asserts that dozens of oil rigs inside 25 miles comply with current OCS regulations, which require them to lower their emissions. In turn, the commenter states that requiring sources to comply with OCS requirements could cost rig owners a significant amount of money if they have to update or modify the rigs to comply. The commenter asserts that this could hurt many drilling businesses and as a result, hurt the economy. Finally, the commenter asks EPA to not go through with this proposal and allow companies to continue drilling within 25 miles of the shore under the current OCS regulations.

EPA Response: As noted in EPA's April 16, 2019 NPRM, this action is being taken because section 328(a) of the CAA requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of States' seaward boundaries that are the same as onshore requirements. See 84 FR 15549. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into 40 CFR part 55 as they exist onshore. This limits EPA's flexibility in deciding which requirements will be incorporated into 40 CFR part 55 and prevents EPA from making substantive changes to the requirements it incorporates. This rulemaking action is simply updating requirements that were previously incorporated by reference into 40 CFR part 55. See 76 FR 43185 (July 20, 2011). Further, as noted in EPA's April 16, 2019 NPRM and 40 CFR part 55.1, EPA reviewed all of the potentially applicable sections of VAC to ensure they are not designed expressly to prevent exploration and development of the OCS.

Comment: Another commenter expressed that the proposed rule should take effect. The commenter then discusses Virginia's designation as the COA and that the designation enhances the OCS sources' protection. The commenter then goes on to discuss tourism in Virginia. Finally, the commenter concludes that Virginia should go further to control air pollution from OCS sources and comply with standards of the COA.

EPA Response: While it is unclear to EPA exactly what the commenter's main concern is with respect to this rulemaking action, EPA is meeting its statutory obligations in CAA section 328(a)(1) and the requirements of 40 CFR part 55 with respect to specific OCS requirements, upon finalizing this rulemaking action. Additionally, the ability of VADEQ to implement and enforce air quality provisions potentially applicable to an OCS source, for which Virginia is the COA, occurs because Virginia has been delegated the authority, by the EPA, to administer and enforce OCS air requirements. See 77 FR 44231 (July 27, 2012). Lastly, it should be noted that there are many other Federal, state, and local agencies involved in the process of developing the OCS, and in this final rulemaking action, EPA is ensuring that VADEQ has the ability to implement and enforce any necessary applicable air quality regulations for which they have been designated as the COA for that source.

EPA is taking final action to incorporate the rules potentially applicable to OCS sources for which the Commonwealth of Virginia will be the COA. The rules that EPA is taking final action to incorporate are applicable provisions of VAC, as amended through February 20, 2019. The rules that EPA is taking final action to incorporate will replace the rules previously incorporated into “Commonwealth of Virginia Requirements Applicable to OCS Sources,” dated March 2, 2011, which was incorporated by reference into 40 CFR part 55. See 76 FR 43185 (July 20, 2011).

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of “Commonwealth of Virginia Requirements Applicable to OCS Sources,” dated February 20, 2019, which is the compilation of provisions of the VAC described in the amendments to 40 CFR part 55 set forth below. EPA has made, and will continue to make, these materials 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).

Under the Clean Air Act, the Administrator is required to establish requirements to control air pollution from OCS sources located within 25 miles of states' seaward boundaries that are the same as onshore air pollution control requirements. To comply with this statutory mandate, the EPA must incorporate applicable onshore rules into 40 CFR part 55 as they exist onshore. See 42 U.S.C. 7627(a)(1); 40 CFR 55.12. Thus, in promulgating OCS consistency updates, EPA's role is to maintain consistency between OCS regulations and the regulations of onshore areas, provided that they meet the criteria of the CAA. Accordingly, this action simply updates the existing OCS requirements to make them consistent with requirements onshore, without the exercise of any policy direction by EPA. 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 regulatory action because this action is not significant 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 incorporating by reference sections of VAC, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because this action is not approved to apply in Indian country located in the state, and EPA notes that it does not impose substantial direct costs on tribal governments or preemptive tribal law.

Under the provisions of the Paperwork Reduction Act, 44 U.S.C 3501 et seq., an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has approved the information collection requirements contained in 40 CFR part 55 and, by extension, this update to the rules, and has assigned OMB control number 2060-0249. OMB approved the EPA Information Collection Request (ICR) No. 1601.08 on September 18, 2017. 3 The current approval expires September 30, 2020. The annual public reporting and recordkeeping burden for collection of information under 40 CFR part 55 is estimated to average 643 hours per response, using the definition of burden provided in 44 U.S.C. 3502(2).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this 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 December 20, 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).)

EPA is incorporating the rules potentially applicable to sources for which the Commonwealth of Virginia is the COA. The rules that EPA is incorporating are applicable provisions of VAC.

Part 55 of Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

This document is viewable online through the Federal eRulemaking portal at http://www.regulations.gov . Retrieval help and guidelines are available on the website. It is available 24 hours each day, 365 days a year. An electronic copy of this document is available for download from the Office of the Federal Register home page at: http://www.ofr.gov and the Government Publishing Office web page at: http://www.gpo.gov .

Part 624 of title 49, Code of Federal Regulations, established the application procedures for the Clean Fuels Grant Program. This part implemented section 3008 of the Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-178), codified at section 5308 of title 49, United States Code (Section 5308), which required FTA to establish a new grant program intended to assist nonattainment and maintenance areas in achieving or maintaining air quality attainment status, to support emerging clean fuel and advanced propulsion technologies for transit buses, and to create markets for these technologies. Section 20002 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141) repealed section 5308, effectively ending the Clean Fuels Grant Program. For this reason, FTA is issuing this final rule to rescind 49 CFR part 624.

This action rescinds 49 CFR part 624, which implements the Clean Fuels Grant Program. The statutory basis for this regulation, 49 U.S.C. 5308, was repealed by MAP-21. While 49 CFR part 624 cites 49 U.S.C. 5334(a) as additional statutory authority, that statute provides only for the general authority of the Secretary of Transportation to implement statutory transit programs. However, the Secretary may not regulate a program repealed by statute. Thus, the requirements set forth in part 624 are superfluous.

Under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)), an agency may waive the normal notice and comment procedure if it finds, for good cause, that it is impracticable, unnecessary, or contrary to the public interest. Additionally, 5 U.S.C. 553(d) provides that an agency may waive the 30-day delayed effective date upon finding of good cause.

Section 20002 of MAP-21 repealed section 5308, effectively ending the Clean Fuels Grant Program. FTA finds good cause that notice and comment for this rule is unnecessary due to the nature of the revisions ( i.e., the rule simply carries out the nondiscretionary statutory language found in MAP-21). The statutory language does not require regulatory interpretation to carry out its intent, and comments cannot alter the regulation given that the statute abrogated its purpose. Further, the delayed effective date is unnecessary because the removal of the program was made effective by MAP-21. Accordingly, FTA finds good cause under 5 U.S.C. 553(b)(3)(B) and (d)(3) to waive notice and opportunity for comment and the delayed effective date.

FTA has determined that this rulemaking is not a significant regulatory action within the meaning of Executive Order 12866, and within the meaning of DOT regulatory policies and procedures. This action complies with Executive Orders 12866, 13563 and 13771 to improve regulation.

This final rule is considered an E.O. 13771 deregulatory action.

Because FTA finds good cause under 5 U.S.C. 553(b)(3)(B) to waive notice and opportunity for comment for this rule, the provisions of the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612) do not apply. FTA evaluated the effects of this action on small entities and determined the action would not have a significant economic impact on a substantial number of small entities. FTA hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities.

FTA has determined that this rule does not impose unfunded mandates, as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). This rule does not include a Federal mandate that may result in expenditures of $155.1 million or more in any 1 year (when adjusted for inflation) in 2012 dollars for either State, local, and tribal governments in the aggregate, or by the private sector. Additionally, the definition of “Federal mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal Transit Act permits this type of flexibility.

Executive Order 13132 requires agencies to assure meaningful and timely input by State and local officials in the development of regulatory policies that may 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. This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 dated August 4, 1999, and FTA determined this action will not have a substantial direct effect or sufficient federalism implications on the States. FTA also determined this action will not preempt any State law or regulation or affect the States' ability to discharge traditional State governmental functions.

The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program. This E.O. applies because State and local governments would be directly affected by the regulation. Local entities should refer to the Catalog of Federal Domestic Assistance Program Number 20.519, Clean Fuels, for further information.

Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. FTA has analyzed this rule under the Paperwork Reduction Act and believes that it does not impose additional information collection requirements for the purposes of the Act above and beyond existing information collection clearances from OMB.

Federal agencies are required to adopt implementing procedures for the National Environmental Policy Act (NEPA) that establish specific criteria for, and identification of, three classes of actions: (1) Those that normally require preparation of an Environmental Impact Statement, (2) those that normally require preparation of an Environmental Assessment, and (3) those that are categorically excluded from further NEPA review (40 CFR 1507.3(b)). This rule qualifies for categorical exclusions under 23 CFR 771.118(c)(4) (planning and administrative activities that do not involve or lead directly to construction). FTA has evaluated whether the rule will involve unusual or extraordinary circumstances and has determined that it will not.

FTA has analyzed this rule under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. FTA does not believe this rule effects a taking of private property or otherwise has taking implications under Executive Order 12630.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

FTA has analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. FTA certifies that this action will not cause an environmental risk to health or safety that might disproportionately affect children.

FTA has analyzed this rule under Executive Order 13175, dated November 6, 2000, and believes that it will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal laws. Therefore, a tribal summary impact statement is not required.

FTA has analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. FTA has determined that this action is not a significant energy action under that order and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required.

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations) and DOT Order 5610.2(a) (77 FR 27534, May 10, 2012) (available online at https://www.govinfo.gov/content/pkg/FR-2012-05-10/pdf/2012-11309.pdf ) require DOT agencies to achieve Environmental Justice (EJ) as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority and low-income populations. All DOT agencies must address compliance with Executive Order 12898 and the DOT Order in all rulemaking activities. On August 15, 2012, FTA's Circular 4703.1 became effective, which contains guidance for recipients of FTA financial assistance to incorporate EJ principles into plans, projects, and activities (available online at http://www.fta.dot.gov/documents/FTA_EJ_Circular_7.14-12_FINAL.pdf ).

FTA has evaluated this action under the Executive Order, the DOT Order, and the FTA Circular. The rule rescinds the implementing regulations of a program repealed by statute, and FTA has determined that this action will not cause disproportionately high and adverse human health and environmental effects on minority or low-income populations.

We prepared a species status assessment (SSA) report for the Barrens topminnow. Written in consultation with species experts, the SSA report represents the best scientific and commercial data available concerning the status of the Barrens topminnow, including the impacts of past, present and future factors (both negative and beneficial) affecting the species. Scientific expertise informing the SSA report came primarily from the Barrens Topminnow Working Group, which is a team of biologists from the Service, Tennessee Wildlife Resources Agency, Tennessee universities, and nongovernment organizations that have been working on Barrens topminnow conservation since 2001. Scientists on the Barrens Topminnow Working Group provided expertise in fish biology, habitat management, and stressors (factors negatively affecting the species). One biologist outside the Barrens Topminnow Working Group conducted independent peer review of the SSA report. The SSA report; the January 4, 2018, proposed rule (83 FR 490); this final rule; and other materials relating to this rulemaking can be found on the Service's Southeast Region website at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket No. FWS-R4-ES-2017-0094.

Please refer to the proposed listing rule for the Barrens topminnow (83 FR 490; January 4, 2018) for a detailed description of previous Federal actions concerning this species.

The Barrens topminnow is a small fish with an average lifespan of 2 years that is endemic to springs and gently flowing portions of spring-fed streams in middle Tennessee. This species relies on aquatic vegetation for spawning substrate and cover. Owing primarily to invasive western mosquitofish ( Gambusia affinis ) that prey upon and harass Barrens topminnows, the species' range has been curtailed and its status rangewide is low, based upon the best available scientific and commercial data available.

Please refer to the January 4, 2018, proposed listing rule for the Barrens topminnow (83 FR 490) and the SSA report for a full summary of species information. Both are available on the Service's Southeast Region website at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket No. FWS-R4-ES-2017-0094.

In the January 4, 2018, proposed rule (83 FR 490), we requested that all interested parties submit written comments on the proposal by March 5, 2018. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. We did not receive any requests for a public hearing.

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review actions under the Act (16 U.S.C. 1531 et seq. ), we solicited expert opinion from six knowledgeable individuals with scientific expertise that included familiarity with the Barrens topminnow and its habitat, biological needs, and threats. We received a response from one peer reviewer.

We updated the SSA report based on the peer reviewer's comments. The changes consisted of clarifications and corrections to the SSA report, including typographical edits, incorporation of omitted references, and a clarification regarding the definition of a genetic term. The peer reviewer's comments did not change our determination that the Barrens topminnow meets the definition of an endangered species under the Act.

We received 24 public comments on the proposed rule. Eleven of the comments were supportive of listing the Barrens topminnow as endangered but did not provide any new information on the species' status. None of the remaining 13 comments provided substantive comments concerning the proposed listing of the Barrens topminnow. Ten of those did not address or provide any information concerning the Barrens topminnow, and three focused on the need for transparency in regulations implemented under the Act. Regarding transparency for our listing decision for the Barrens topminnow, we note that we provide our SSA report, as well as several other reports and surveys that helped inform this listing decision, to the public on http://www.regulations.gov under Docket No. FWS-R4-ES-2017-0094. Thus, none of the public comments changed our determination that the Barrens topminnow meets the definition of an endangered species under the Act.

As discussed above, we made no changes to this final rule after consideration of the comments we received.

Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations in title 50 of the Code of Federal Regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. Our assessment evaluates the biological status of the species and possible threats to its continued existence based upon the best available scientific and commercial data.

Please refer to the SSA report for a more detailed discussion of the factors affecting the Barrens topminnow.

To evaluate the current and future viability of the Barrens topminnow, we assessed a range of conditions to consider the species' resiliency, representation, and redundancy (the “3 Rs” described in detail in the SSA report). The historical range of the Barrens topminnow included springs and spring runs (first and second order streams with a spring source) on the Barrens Plateau, which is part of the Eastern Highland Rim physiographic province in middle Tennessee. Historical species records are from the Duck River, Elk River, and Caney Fork River drainages. The Duck River and Elk River drain to the Tennessee River, and the Caney Fork River drains to the Cumberland River. Captively held Elk River and wild Caney Fork River stock exist today and are considered “evolutionary significant units” (ESUs, historically isolated groups of populations that are on independent evolutionary trajectories). Historical Duck River stock became extinct in the 1960s, before genetic material could be examined to assess whether the Duck River stock was a unique ESU or belonged to one of the two extant ESUs.

Once known to occupy 18 sites (and likely more sites that were not sampled prior to extirpation) within the three drainages, the Barrens topminnow currently occurs in the wild at 5 sites. The species occurs in the Duck River drainage in Short Spring and Marcum Spring, and in the Caney Fork drainage in Benedict Spring, McMahan Creek, and Greenbrook Pond. The Benedict Spring and McMahan Creek occurrences consist of native stock, while the remaining three, including the two Duck River occurrences, are populated with individuals introduced from Caney Fork drainage sites. An ark population of Barrens topminnows from Pond Spring in the Elk River drainage is held in captivity at three facilities, with the intention to reintroduce individuals from that population to the drainage where habitat conditions are, or can be made, suitable.

Of the five sites currently occupied by the species, the Greenbrook Pond and Marcum Spring populations are estimated to have medium resiliency, and the other three populations low resiliency. Rangewide, the Barrens topminnow has low representation, owing to the species' reduced genetic diversity, loss of at least one ESU from the wild, and restriction to a single ecoregion and specific habitat type. Redundancy is also low, as the species is extant at only 5 of 18 known historical sites. Based on the 3 Rs, the species' overall current condition is low.

The greatest threat to Barrens topminnow is predation from the western mosquitofish (Factor C), an invasive species native to portions of Tennessee west of the Barrens Plateau that preys upon young topminnows and harasses adults. Extirpation of Barrens topminnows has occurred consistently within 3 to 5 years of western mosquitofish invasion of a site, and the five sites where Barrens topminnows remain extant are the only sites not occupied by western mosquitofish.

Predation upon Barrens topminnows by western mosquitofish (Factor C) is the primary driver of Barrens topminnow range curtailment and habitat modification (Factor A), as well as adverse demographic changes (Factor E). The presence of predatory western mosquitofish in most spring and stream systems of the Barrens Plateau has rendered otherwise suitable habitat for the Barrens topminnow uninhabitable. In addition to modification of habitat by a biological feature (invasive western mosquitofish), alteration of physical habitat features has occurred due to conversion of surrounding upland habitat to pasture, with concomitant removal of riparian vegetation and livestock accessing streams.

Livestock access increases bank erosion, sedimentation, and nutrient loading in streams. Removal of riparian vegetation can also increase sedimentation and may raise water temperatures above levels suitable for Barrens topminnows. While such physical habitat alteration (Factor A) has occurred and has been a factor in curtailing some of the species' range, its impact on the topminnow is much less substantial than predation by western mosquitofish.

Adverse demographic changes (Factor E) also are largely driven by invasive western mosquitofish (Factor C). The expansion of western mosquitofish into topminnow habitat has eliminated connectivity between sites that would allow gene flow and maintenance of genetic diversity. Each occupied site is vulnerable to extirpation due to prolonged drought or a flood that enables western mosquitofish invasion. Topminnows cannot move from these sites during droughts or floods because western mosquitofish are downstream. Further, the erosion of genetic variability due to site isolation reduces the capacity of the species to withstand stochastic events.

Climate change (Factor E) is a threat to the Barrens topminnow. Drought poses a threat to Barrens topminnows as evidenced by the Benedict Spring site drying up three times since 2006, although each time topminnows were rescued from the drying spring and held in captivity until they could be returned to the spring after the drought subsided. Climate models at the scale of the Barrens Plateau are lacking, but in the broader southeastern United States, variability in weather is expected to increase over the next century, resulting in more extreme dry and wet years.

We did not find that the Barrens topminnow is impacted by overutilization (Factor B). Regarding the adequacy of existing regulatory mechanisms (Factor D), such as regulations implemented under the Clean Water Act to protect water quality and instream habitat, we found that they do not address, nor do they contribute to, the threat of invasive mosquitofish, which is the primary driver of the Barrens topminnow's status.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Barrens topminnow. The Barrens topminnow is extirpated from 13 of 18 historically occupied sites, which is equivalent to a 72 percent loss in the species' range. Native Duck River populations have been lost, and the ESU from the Elk River drainage currently persists only in captivity. Due primarily to predation by the western mosquitofish, but secondarily to habitat alternation exacerbated by climate change, the overall condition of the species is low, based on population resiliency and rangewide representation and redundancy.

The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species that “is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” As discussed above, the resiliency, representation, and redundancy of the species has been severely compromised by the operation of threats in the past, primarily due to predation by introduced and expanding populations of nonnative western mosquitofish. In addition, all of the remaining populations of Barrens topminnow are at imminent risk of further expansion of western mosquitofish, as well as drought events, with no reasonable prospect of natural reestablishment once a population is extirpated. Therefore, we conclude that the species is currently at risk of extinction throughout its range, thus meeting the definition of an endangered species. For the same reasons, we find that a threatened species status is not appropriate for the Barrens topminnow.

Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that the Barrens topminnow is in danger of extinction throughout its range, we find it unnecessary to proceed to an evaluation of potentially significant portions of the range. Where the best available information allows the Services to determine a status for the species rangewide, that determination should be given conclusive weight because a rangewide determination of status more accurately reflects the species' degree of imperilment and better promotes the purposes of the statute. Under this reading, we should first consider whether listing is appropriate based on a rangewide analysis and proceed to conduct a “significant portion of its range” analysis if, and only if, a species does not qualify for listing as either endangered or threatened according to the “all” language. We note that the court in Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), did not address this issue, and our conclusion is therefore consistent with the opinion in that case.

Therefore, on the basis of the best available scientific and commercial information, we list the Barrens topminnow as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and requires that recovery actions be carried out for all listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan identifies site-specific management actions that set a trigger for review of the five factors that control whether a species remains endangered or may be downlisted or delisted, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website ( http://www.fws.gov/endangered ) or from our Tennessee Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration ( e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.

Following publication of this final listing rule, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Tennessee will be eligible for Federal funds to implement management actions that promote the protection or recovery of the Barrens topminnow. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

Please let us know if you are interested in participating in recovery efforts for the Barrens topminnow. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 4(a)(3) of the Act and implementing regulations (50 CFR 424.12) require that we designate critical habitat at the time a species is determined to be an endangered or threatened species, to the maximum extent prudent and determinable. In the proposed listing rule (83 FR 490; January 4, 2018), we determined that designation of critical habitat was prudent but not determinable because specific information needed to analyze the impacts of designation was lacking. We are still in the process of assessing this information. We plan to publish a proposed rule to designate critical habitat for the Barrens topminnow in the near future.

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the Service; technical assistance and projects funded through the U.S. Department of Agriculture Natural Resources Conservation Service; issuance of permits by the Tennessee Valley Authority for right-of-way stream crossings; issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq. ) permits by the U.S. Army Corps of Engineers; and construction and maintenance of roads or highways by the Federal Highway Administration.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, also codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits for endangered wildlife are codified at 50 CFR 17.22. A permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a final listing on proposed and ongoing activities within the range of a listed species. Based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive:

(1) Normal agricultural practices, including herbicide and pesticide use, which are carried out in accordance with any existing regulations, permit and label requirements, and best management practices; and

(2) Normal residential landscaping activities.

Based on the best available information, the following activities may potentially result in a violation of section 9 the Act; this list is not comprehensive:

(1) Collection or handling of the Barrens topminnow;

(2) Introduction of nonnative species that compete with or prey upon the Barrens topminnow, including western mosquitofish and other species in the mosquitofish genus Gambusia;

(3) Removal or destruction of native aquatic vegetation in any body of water in which the Barrens topminnow is known to occur; and

(4) Discharge of chemicals or fill material into any waters in which the Barrens topminnow is known to occur.

Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Tennessee Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act, need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. There are no tribal lands affected by this listing determination.

A complete list of references cited in the SSA report that informed this rulemaking is available on the internet at http://www.regulations.gov under Docket No. FWS-R4-ES-2017-0094 and upon request from the Tennessee Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this final rule are the staff members of the Service's Tennessee Ecological Services Field Office.

Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

Atlantic HMS are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq., (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act, 16 U.S.C. 971 et seq., (ATCA). On October 2, 2006, NMFS published in the Federal Register (71 FR 58058) regulations implementing the 2006 Consolidated HMS FMP, which details the management measures for Atlantic HMS fisheries; these management measures have been amended or otherwise modified numerous times. The implementing regulations for Atlantic HMS are at 50 CFR part 635.

The regulations at 50 CFR part 635 are promulgated under ATCA and the Magnuson-Stevens Act for the conservation and management of Atlantic HMS, including species of tunas, billfish, sharks, and swordfish. The sale of Atlantic billfish has been prohibited by regulation since implementation of the 1988 Fishery Management Plan (FMP) for the Atlantic Billfishes (53 FR 21501; June 8, 1988). The Billfish Conservation Act of 2012 prohibited any person from possessing or offering billfish or billfish products for sale but included a limited exception for Pacific billfish, with the result that Pacific billfish product could continue to be sold throughout the United States. Thus, HMS regulations continued to require that a Billfish Certificate of Eligibility accompany any billfish product sold to ensure that the product did not come from the Atlantic Ocean. In 2018, amendments to the Billfish Conservation Act of 2012, clarified that billfish are only exempted from the sales prohibition when they are retained in Hawaii or the Pacific Insular Areas. Accordingly, such billfish may only be sold in the same location where landed or when legally transported to the other exempted location ( i.e., from Hawaii to the Pacific Insular Areas or vice versa). The new prohibition became effective when the legislation was signed into law on August 2, 2018. Thus, the Billfish Certificate of Eligibility requirement in 50 CFR part 635 is no longer necessary, and this final rule removes the requirement.

Regulations at §§ 635.2 (definition of “Billfish Certificate of Eligibility (COE)” and 635.31(b)(2) and (3) are out of date. Except for two specific exemptions that apply to Hawaii and Pacific Insular Areas, the Billfish Conservation Act, as amended in 2018, prohibits any person from offering billfish or billfish products for sale, selling them, or having custody, control, or possession of them for purposes of offering them for sale. Therefore, any language in 50 CFR part 635 referencing the Billfish COE is obsolete. In order to be consistent with Federal Register guidelines, this final action removes the out of date definition at § 635.2 and the language at § 635.31(b)(2) and (3). This final action also revises the language at § 635.31(b)(1).

The Assistant Administrator for Fisheries has determined that this final rule is necessary for the conservation and management of U.S. fisheries and that it is consistent with the Magnuson-Stevens Act, the 2006 Consolidated Atlantic HMS FMP and its amendments, ATCA, and other applicable law.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment are unnecessary and contrary to the public interest. This action removes regulatory text at 50 CFR part 635 for a requirement that became obsolete as a result of a statutory change that took place in 2018. For this reason, there is also good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

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

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, and a proposed rule is not being published, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

NMFS has determined that fishing activities conducted pursuant to this rule will not affect endangered and/or threatened species or critical habitat listed under the Endangered Species Act, or marine mammals protected by the Marine Mammal Protection Act, because the action only removes obsolete regulatory text at 50 CFR part 635.

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

Background

In the 2019 annual management measures for ocean salmon fisheries (84 FR 19729, May 6, 2019), NMFS announced management measures for the commercial and recreational fisheries in the area from the U.S./Canada border to the U.S./Mexico border, effective from 0001 hours Pacific Daylight Time (PDT), May 6, 2019, until the effective date of the 2020 management measures, as published in the Federal Register . NMFS is authorized to implement inseason management actions to modify fishing seasons and quotas as necessary to provide fishing opportunity while meeting management objectives for the affected species (50 CFR 660.409). Inseason actions in the salmon fishery may be taken directly by NMFS (50 CFR 660.409(a)—Fixed inseason management provisions) or upon consultation with the Pacific Fishery Management Council (Council) and the appropriate State Directors (50 CFR 660.409(b)—Flexible inseason management provisions). The state management agencies that participated in the consultations described in this document were: California Department of Fish and Wildlife (CDFW), Oregon Department of Fish and Wildlife (ODFW), and Washington Department of Fish and Wildlife (WDFW).

Management of the salmon fisheries is generally divided into two geographic areas: North of Cape Falcon (U.S./Canada border to Cape Falcon, OR) and south of Cape Falcon (Cape Falcon, OR, to the U.S./Mexico border). Within the north and south of Cape Falcon areas, there are further subarea divisions used to manage impacts on salmon stocks or stock groups as well as economic impacts to communities.

North of Cape Falcon: Recreational fisheries north of Cape Falcon are divided into four subareas: U.S./Canada border to Cape Alava, WA (Neah Bay subarea), Cape Alava, WA, to Queets River, WA (La Push subarea), Queets River, WA, to Leadbetter Point, WA (Westport subarea), and Leadbetter Point, WA, to Cape Falcon, OR (Columbia River subarea). Commercial fisheries north of Cape Falcon are divided at Queets River, WA, and Leadbetter Point, WA.

South of Cape Falcon: South of Cape Falcon, the area from Humbug Mountain, OR, to Horse Mountain, CA, is the Klamath Management Zone (KMZ) and is managed in two subareas, Oregon KMZ and California KMZ, divided at the Oregon/California border. The Oregon KMZ is the area from Humbug Mountain, OR, to the Oregon/California border. The California KMZ is the area from the Oregon/California border to Horse Mountain, CA. However, the area from Humboldt South Jetty, CA, to Horse Mountain, CA, has been closed to commercial salmon fishing since 1992.

Description of the action: Inseason action #6 temporarily closed the commercial salmon fishery from the U.S./Canada border to Queets River, WA.

Effective dates: Inseason action #6 took effect on June 19, 2019, and remained in effect until superseded by inseason action #8 on June 24, 2019.

Reason and authorization for the action: The purpose of inseason action #6 was to avoid exceeding the subarea quota for Chinook salmon. The 2019 annual management measures (84 FR 19729, May 6, 2019) state that inseason action will be considered when approximately 60 percent of the subarea guideline for the area from the U.S./Canada border to Queets River, WA, has been landed. At the time of this inseason consultation, 75 percent of the subarea guideline had been landed. The Regional Administrator (RA) considered Chinook salmon landings and fishery effort and determined inseason action was necessary to stay within the quota. Inseason action to modify fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

Consultation date and participants: Consultation on inseason action #6 occurred on June 14, 2019. Representatives from NMFS, WDFW, and ODFW participated in this consultation. Council staff were unavailable to participate, but were notified of the RA's decision immediately after the consultation.

Description of the action: Inseason action #7 allowed retention of halibut caught incidental to the commercial salmon fishery by International Pacific Halibut Commission license holders to continue past June 30, 2019. Inseason action #7 also reduced the landing limit for incidental halibut from 35 halibut per vessel per trip to 15 halibut per vessel per trip; other landing restrictions remained as set preseason. This inseason action applied to commercial salmon fisheries from the U.S./Canada border to the U.S./Mexico border.

Effective dates: Inseason action #7 took effect on July 1, 2019, and remained in effect until superseded on July 19, 2019 by inseason action #16.

Reason and authorization for the action: The 2019 annual management measures for ocean salmon fisheries (84 FR 19729, May 6, 2019) announced the conditions for incidental halibut harvest: “incidental harvest is authorized only during April, May, and June of the 2019 troll seasons, and after June 30 in 2019 if quota remains.” At the time of this consultation, 49 percent of the incidental halibut allocation remained uncaught. The RA considered Chinook salmon and halibut landings and fishery effort in the commercial ocean salmon fishery and determined that this inseason action was necessary to meet management objectives set preseason and to allow access to the available halibut allocation, as provided for in the 2019 annual management measures for ocean salmon fisheries (84 FR 19729, May 6, 2019). Inseason action to modify species that may be caught and landed during specific seasons and the establishment of modification of limited retention regulations are authorized by 50 CFR 660.409(b)(1)(ii).

Consultation date and participants: Consultation on inseason action #7 occurred on June 24, 2019. Representatives from NMFS, WDFW, ODFW, CDFW, and the Council participated in this consultation.

Description of the action: Inseason action #8 reopened the commercial salmon fishery from the U.S./Canada border to Queets River, WA, from 1 p.m., June 24, 2019, to 11:59 p.m., June 28, 2019, with a landing and possession limit of 20 Chinook salmon per vessel for the landing period.

Effective dates: Inseason action #8 superseded inseason action #6, above, on June 24, 2019, and remained in effect through the scheduled closure of this fishery on June 28, 2019.

Reason and authorization for the action: The purpose of inseason action #8 was to allow access to available subarea Chinook salmon quota for the May-June season for the economic benefit of local fishery dependent communities. The RA considered Chinook landings to date, remaining Chinook salmon quota, and fishery effort projections and determined inseason action was necessary to meet management objectives set preseason. Inseason action to modify fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

Consultation date and participants: Consultation on inseason action #8 occurred on June 24, 2019. Representatives from NMFS, WDFW, ODFW, and the Council participated in this consultation.

Description of the action: Inseason action #9 adjusted the July quota in the commercial salmon fishery in the Oregon KMZ to account for an impact-neutral rollover of unused quota from June. The July quota was adjusted from 2,500 Chinook salmon to 4,495 Chinook salmon.

Effective dates: Inseason action #9 took effect July 4, 2019, and remained in effect through the end of the July quota period on July 31, 2019.

Reason and authorization for the action: The purpose of inseason action #9 was to be consistent with the annual management measures, which state that any remaining portion of Chinook quotas in the Oregon KMZ may be transferred inseason on an impact-neutral basis to the next open quota period (84 FR 19729, May 6, 2019). The RA considered Chinook salmon landings to date and the calculations of the Council's Salmon Technical Team (STT) for rolling over quota on an impact-neutral basis for impacts to Klamath River fall-run Chinook salmon (KRFC), impacts to age-4 KRFC which serves as a surrogate for impacts to California Coastal Chinook salmon (listed as threatened under the Endangered Species Act (ESA)), and fifty-fifty tribal/nontribal sharing of KRFC allowable catch. The RA determined inseason action was necessary to meet management objectives set preseason. Inseason action to modify quotas is authorized by 50 CFR 660.409(b)(1)(i).

Consultation date and participants: Consultation on inseason action #9 occurred on July 3, 2019. Representatives from NMFS, ODFW, CDFW, and the Council participated in this consultation.

Description of the action: Inseason action #10 increased the landing limit in the commercial salmon fishery in the Oregon KMZ from 50 Chinook salmon to 125 Chinook salmon per vessel per landing week (set preseason as Thursday through Wednesday).

Effective dates: Inseason action #10 took effect July 4, 2019, and remained in effect through the scheduled closure of this fishery on August 29, 2019.

Reason and authorization for the action: The purpose of inseason action #10 was to provide greater access to available quota. The RA considered Chinook landings to date, remaining Chinook salmon quota, and fishery effort projections and determined inseason action was necessary to meet management objectives set preseason. Inseason action to modify limited retention regulations is authorized by 50 CFR 660.409(b)(1)(ii).

Consultation date and participants: Consultation on inseason action #10 occurred on July 3, 2019. Representatives from NMFS, ODFW, CDFW, and the Council participated in this consultation.

Description of the action: Inseason action #11 adjusted the July quota in the commercial salmon fishery in the California KMZ to account for an impact-neutral rollover of unused quota from June. The July quota was adjusted from 2,500 Chinook salmon to 3,997 Chinook salmon.

Effective dates: Inseason action #11 took effect July 4, 2019, and remained in effect through the end of the July quota period on July 31, 2019.

Reason and authorization for the action: The purpose of inseason action #11 was to be consistent with the annual management measures, which state that any remaining portion of Chinook quotas in the California KMZ may be transferred inseason on an impact-neutral basis to the next open quota period (84 FR 19729, May 6, 2019). The RA considered Chinook salmon landings to date and the calculations of the STT for rolling over quota on an impact-neutral basis for impacts to Sacramento River fall-run Chinook salmon. The RA determined inseason action was necessary to meet management objectives set preseason. Inseason action to modify quotas is authorized by 50 CFR 660.409(b)(1)(i).

Consultation date and participants: Consultation on inseason action #11 occurred on July 3, 2019. Representatives from NMFS, ODFW, CDFW, and the Council participated in this consultation.

Description of the action: Inseason action #12 modified the daily bag limit in the recreational fishery in the Neah Bay subarea to two salmon, only one of which can be a Chinook salmon; previously, two Chinook salmon could be retained.

Effective dates: Inseason action #12 took effect July 8, 2019, and remained in effect until superseded by inseason action #14 on July 14, 2019.

Reason and authorization for the action: The purpose of inseason action #12 was to avoid exceeding the subarea quota for Chinook salmon. This fishery opened on June 22, 2019, and had landed 28 percent of the subarea Chinook salmon guideline in less than two weeks. The RA considered Chinook salmon landings and fishery effort and determined inseason action was necessary to stay within the quota. Inseason action to modify recreational bag limits is authorized by 50 CFR 660.409(b)(1)(iii).

Consultation date and participants: Consultation on inseason action #12 occurred on July 3, 2019. Representatives from NMFS, WDFW, ODFW, and the Council participated in this consultation.

Description of the action: Inseason action #13 adjusted the July-September quota in the commercial salmon fishery north of Cape Falcon to account for an impact-neutral rollover of unused quota from the May-June fishery in the same area. The July-September quota was increased from 13,050 to 19,257 Chinook salmon.

Effective dates: Inseason action #13 took effect July 12, 2019, and remained in effect through the scheduled closure of the fishery on September 30, 2019.

Reason and authorization for the action: The purpose of inseason action #13 was to be consistent with the annual management measures, which state that any remaining portion of Chinook quotas in the north of Cape Falcon commercial fishery may be transferred inseason on an impact-neutral basis to the next open quota period (84 FR 19729, May 6, 2019). The RA considered Chinook salmon landings to date and the calculations of the STT for rolling over quota on an impact-neutral basis for impacts to ESA-listed Lower Columbia River tule Chinook salmon and Puget Sound Chinook salmon. The RA determined inseason action was necessary to meet management objectives set preseason. Inseason action to modify quotas is authorized by 50 CFR 660.409(b)(1)(i).

Consultation date and participants: Consultation on inseason action #13 occurred on July 12, 2019. Representatives from NMFS, WDFW, ODFW, and the Council participated in this consultation.

Description of the action: Inseason action #14 modified the daily bag limit in the recreational ocean salmon fishery in the Neah Bay subarea to prohibit retention of Chinook salmon.

Effective dates: Inseason action #14 superseded inseason action #12, above, on July 14, 2019, and remained in effect through the scheduled closure of the fishery on September 30, 2019.

Reason and authorization for the action: The purpose of inseason action #14 was to avoid exceeding the subarea guideline for Chinook salmon. In the two weeks since this fishery opened on June 22, 2019, nearly 60 percent of the subarea guideline for Chinook salmon had been landed. WDFW recommended prohibiting retention of Chinook salmon to ensure sufficient impacts available to account for incidental mortality of Chinook salmon while the fishery targeted coho salmon for the remainder of the season. The RA considered Chinook salmon landings and fishery effort and determined inseason action was necessary to stay within the guideline and meet management objectives set preseason. Inseason action to modify recreational bag limits is authorized by 50 CFR 660.409(b)(1)(iii).

Consultation date and participants: Consultation on inseason action #14 occurred on July 12, 2019. Representatives from NMFS, WDFW, ODFW, and the Council participated in this consultation.

Description of the action: Inseason action #15 modified the daily bag limit in the recreational ocean salmon fishery in the La Push subarea, to two salmon per day, only one of which can be a Chinook salmon; previously, two Chinook salmon could be retained.

Effective dates: Inseason action #15 took effect on July 15, 2019, and remained in effect through the scheduled closure of the fishery on September 30, 2019.

Reason and authorization for the action: The purpose of inseason action #15 was to avoid exceeding the subarea guideline for Chinook salmon. This subarea had a small guideline for Chinook salmon and, with the prohibition of Chinook salmon retention in the neighboring Neah Bay subarea (see inseason action #14, above), there was concern that effort shift to La Push would quickly exhaust the available Chinook salmon guideline. The RA considered Chinook salmon landings and fishery effort and determined inseason action was necessary to stay within the guideline and meet management objectives set preseason. Inseason action to modify recreational bag limits is authorized by 50 CFR 660.409(b)(1)(iii).

Consultation date and participants: Consultation on inseason action #15 occurred on July 12, 2019. Representatives from NMFS, WDFW, ODFW, and the Council participated in this consultation.

Description of the action: Inseason action #16 reduced the landing and possession limit for halibut caught incidental to the commercial ocean salmon fishery from the U.S./Canada border to the U.S./Mexico border from 15 to 4 halibut per vessel per trip, all other restrictions remained as set preseason.

Effective dates: Inseason action #16 superseded inseason action #7, above, on July 19, 2019, and remained in effect until superseded by inseason action #19, below, on July 27, 2019.

Reason and authorization for the action: The purpose of inseason action #16 was to extend access to available incidental halibut allocation without exceeding the allocation. At the time of this inseason consultation, 10.6 percent of the halibut allocation remained available. The RA considered Chinook salmon and halibut landings and fishery effort and determined inseason action was necessary to extend access to available halibut and stay within the allocation. Inseason action to modify species that may be caught and landed during specific seasons and the establishment of modification of limited retention regulations are authorized by 50 CFR 660.409(b)(1)(ii).

Consultation date and participants: Consultation on inseason action #16 occurred on July 17, 2019. Representatives from NMFS, WDFW, ODFW, CDFW, and the Council participated in this consultation.

Description of the action: Inseason action #17 increased the landing limit in the commercial ocean salmon fishery in the California KMZ from 20 to 50 Chinook salmon per vessel per day.

Effective dates: Inseason action #17 took effect on July 19, 2019, and remained in effect until superseded by inseason action #24 on August 12, 2019.

Reason and authorization for the action: The purpose of inseason action #17 was to provide increased access available Chinook salmon quota. Landings in the California KMZ in June and early July were low. At the time of this inseason consultation, the fishery had only landed two percent of the adjusted July quota. The RA considered Chinook salmon landings and fishery effort and determined inseason action was necessary to meet management goals set preseason. Inseason action to modify limited retention regulations is authorized by 50 CFR 660.409(b)(1)(ii).

Consultation date and participants: Consultation on inseason action #17 occurred on July 17, 2019. Representatives from NMFS, ODFW, CDFW, and the Council participated in this consultation.

Description of the action: Inseason action #18 imposed a landing limit of 125 Chinook salmon per vessel per landing week (set preseason as Thursday through Wednesday) in the commercial ocean salmon fishery from the U.S./Canada border to Cape Falcon, OR.

Effective dates: Inseason action #18 took effect on July 19, 2019, and remained in effect until superseded by inseason action #25 on August 16, 2019.

Reason and authorization for the action: The purpose of inseason action #18 was to set a precautionary landing limit on this fishery which opened July 1, 2019, with a Chinook salmon quota, but no landing limit, set preseason. The fishery landed 43 percent of the Chinook salmon quota in the first 17 days of the fishery. The RA considered Chinook salmon landings and fishery effort and determined inseason action was necessary to sustain season length while remaining within the quota. Inseason action to establish or modify limited retention regulations is authorized by 50 CFR 660.409(b)(1)(ii).

Consultation date and participants: Consultation on inseason action #18 occurred on July 17, 2019. Representatives from NMFS, WDFW, ODFW, and the Council participated in this consultation.

Description of the action: Inseason action #19 reduced the landing and possession limit for halibut caught incidental to the commercial ocean salmon fishery from the U.S./Canada border to the U.S./Mexico border from 4 to 2 halibut per vessel per trip, all other restrictions remained as set preseason.

Effective dates: Inseason action #19 superseded inseason action #16, above, on July 27, 2019, and remains in effect until all 2019 commercial salmon fisheries close, unless superseded by inseason action.

Reason and authorization for the action: The purpose of inseason action #19 was to extend access to available incidental halibut allocation without exceeding the allocation. At the time of this inseason consultation, 9.1 percent of the allocation remained available. The RA considered Chinook salmon and halibut landings and fishery effort and determined inseason action was necessary to extend access to available halibut and stay within the allocation. Inseason action to modify species that may be caught and landed during specific seasons and the establishment of modification of limited retention regulations are authorized by 50 CFR 660.409(b)(1)(ii).

Consultation date and participants: Consultation on inseason action #19 occurred on July 24, 2019. Representatives from NMFS, WDFW, ODFW, CDFW, and the Council participated in this consultation.

Description of the action: Inseason action #20 adjusted the August quota in the commercial salmon fishery in the California KMZ to account for an impact-neutral rollover of unused quota from July. The August quota was adjusted from 2,000 Chinook salmon to 4,293 Chinook salmon.

Effective dates: Inseason action #20 took effect August 2, 2019, and remained in effect through the scheduled closure of this fishery on August 31, 2019.

Reason and authorization for the action: The purpose of inseason action #20 was to be consistent with the annual management measures, which state that any remaining portion of Chinook quotas in the California KMZ may be transferred inseason on an impact-neutral basis to the next open quota period (84 FR 19729, May 6, 2019). The RA considered Chinook salmon landings to date and the calculations of the STT for rolling over quota on an impact-neutral basis for impacts to Sacramento River fall-run Chinook salmon. The RA determined inseason action was necessary to meet management objectives set preseason. Inseason action to modify quotas is authorized by 50 CFR 660.409(b)(1)(i).

Consultation date and participants: Consultation on inseason action #20 occurred on August 2, 2019. Representatives from NMFS, ODFW, and CDFW. Council staff were unavailable to participate, but were notified of the RA's decision immediately after the consultation.

Description of the action: Inseason action #21 adjusted the August quota in the commercial salmon fishery in the Oregon KMZ to account for an impact-neutral rollover of unused quota from July. The August quota was adjusted from 1,200 Chinook salmon to 4,330 Chinook salmon.

Effective dates: Inseason action #21 took effect August 2, 2019, and remained in effect through the scheduled closure of this fishery on August 29, 2019.

Reason and authorization for the action: The purpose of inseason action #21 was to be consistent with the annual management measures, which state that any remaining portion of Chinook quotas in the Oregon KMZ may be transferred inseason on an impact-neutral basis to the next open quota period (84 FR 19729, May 6, 2019). The RA considered Chinook salmon landings to date and the calculations of the STT for rolling over quota on an impact-neutral basis for impacts to KRFC, impacts to age-4 KRFC which serves as a surrogate for impacts to California Coastal Chinook salmon (listed as threatened under the ESA), and fifty-fifty tribal/nontribal sharing of KRFC allowable catch. The RA determined inseason action was necessary to meet management objectives set preseason. Inseason action to modify quotas is authorized by 50 CFR 660.409(b)(1)(i).

Consultation date and participants: Consultation on inseason action #21 occurred on August 2, 2019. Representatives from NMFS, ODFW, and CDFW. Council staff were unavailable to participate, but were notified of the RA's decision immediately after the consultation.

Description of the action: Inseason action #22 temporarily closed the commercial salmon fishery in the California KMZ.

Effective dates: Inseason action #22 took effect on August 5, 2019, and remained in effect until superseded by inseason action #24 on August 12, 2019.

Reason and authorization for the action: The purpose of inseason action #22 was to avoid exceeding the subarea quota for Chinook salmon. Landings in the first two open days of August were unexpectedly high and there was concern the quota would be exceeded. The RA considered Chinook salmon landings and fishery effort and determined inseason action was necessary to prevent exceeding the quota. Inseason action to modify fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

Consultation date and participants: Consultation on inseason action #22 occurred on August 5, 2019. Representatives from NMFS, ODFW, CDFW, and the Council participated in this consultation.

Description of the action: Inseason action #23 modified the daily bag limit in the recreational ocean salmon fishery in the Westport subarea to allow retention of two Chinook salmon per day. Previously, the two salmon per day landing limit allowed retention of only one Chinook salmon.

Effective dates: Inseason action #23 took effect on August 10, 2019, and remained in effect until the scheduled closure of the fishery on September 30, 2019.

Reason and authorization for the action: The purpose of inseason action #23 was to allow access to available subarea guideline for Chinook salmon. At the time of this inseason consultation the Westport fishery had only landed 11 percent of the subarea guideline for Chinook salmon. The RA considered Chinook salmon landings and fishery effort and determined inseason action was necessary to meet management objectives set preseason. Inseason action to modify recreational bag limits is authorized by 50 CFR 660.409(b)(1)(iii).

Consultation date and participants: Consultation on inseason action #23 occurred on August 7, 2019. Representatives from NMFS, WDFW, and ODFW participated in this consultation. Council staff were unavailable to participate, but were notified of the RA's decision immediately after the consultation.

Description of the action: Inseason action #24 reopened the commercial ocean salmon fishery in the California KMZ with a landing and possession limit of 15 Chinook salmon per vessel per day; the previous landing and possession limit was 50 Chinook salmon per vessel per day.

Effective dates: Inseason action #24 took effect on August 12, 2019, superseding inseason actions #17 and #22, above, to reopen the fishery and modify the landing and possession limit. Inseason action #24 remained in effect through the scheduled closure of the fishery on August 31, 2019.

Reason and authorization for the action: The purpose of inseason action #24 was to allow access to available Chinook salmon quota without exceeding the quota. Subsequent to the temporary closure of this fishery on August 5, 2019 (see inseason action #22, above), 1,093 Chinook salmon remained available on the August quota. CDFW recommended reopening the fishery to access this quota, but reducing the landing limit to keep landings within the quota. The RA considered Chinook salmon landings and fishery effort and determined inseason action was necessary to stay within the quota. Inseason action to modify fishing seasons is authorized by 50 CFR 660.409(b)(1)(i). Inseason action to modify limited retention regulations is authorized by 50 CFR 660.409(b)(1)(ii).

Consultation date and participants: Consultation on inseason action #24 occurred on August 8, 2019. Representatives from NMFS, ODFW, CDFW, and the Council participated in this consultation.

Description of the action: Inseason action #25 increased the landing limit from 125 to 160 Chinook salmon per vessel per landing week (set preseason as Thursday through Wednesday) in the commercial ocean salmon fishery from the U.S./Canada border to Cape Falcon, OR. The landing limit for coho in this fishery was unchanged.

Effective dates: Inseason action #25 superseded inseason action #18 on August 16, 2019, and remained in effect until the scheduled closure of this fishery on September 30, 2019.

Reason and authorization for the action: The purpose of inseason action #25 was to provide access to available Chinook salmon quota without exceeding the quota. At the time of the inseason consultation, the fishery had 28 percent of the adjusted July-September Chinook salmon quota remaining. The RA considered Chinook salmon landings and fishery effort and determined inseason action was necessary to sustain season length while remaining within the quota. Inseason action to establish or modify limited retention regulations is authorized by 50 CFR 660.409(b)(1)(ii).

Consultation date and participants: Consultation on inseason action #25 occurred on August 15, 2019. Representatives from NMFS, WDFW, ODFW, and the Council participated in this consultation.

Description of the action: Inseason action #26 modified the quota for the recreational non-mark-selective coho fishery from Cape Falcon, OR, to Humbug Mountain, OR, from 9,000 to 15,640 non-mark-selective coho due to an impact-neutral rollover of remaining quota from the recreational mark-selective coho fishery that ended August 25, 2019.

Effective dates: Inseason action #26 took effect on September 6, 2019, and remained in effect through the scheduled closure of this fishery on September 30, 2019.

Reason and authorization for the action: The purpose of inseason action #26 was to be consistent with the annual management measures, which state that any remainder of the mark-selective coho quota may be transferred inseason on an impact-neutral basis to the non-mark-selective coho quota from Cape Falcon, OR, to Humbug Mountain, OR (84 FR 19729, May 6, 2019). The RA considered Chinook salmon landings to date and the calculations of the STT for rolling over quota on an impact-neutral basis for impacts to Oregon Coast Natural coho. The RA determined inseason action was necessary to meet management objectives set preseason. Inseason action to modify quotas is authorized by 50 CFR 660.409(b)(1)(i).

Consultation date and participants: Consultation on inseason action #26 occurred on September 4, 2019. Representatives from NMFS, ODFW, CDFW and the Council participated in this consultation.

Description of the action: Inseason action #27 modified the open dates in the recreational non-mark-selective coho fishery from Cape Falcon, OR, to Humbug Mountain, OR. This action added Monday, September 23, 2019 through Thursday, September 26, 2019, to the scheduled open dates for this fishery.

Effective dates: Inseason action #27 took effect on September 23, 2019, and remained in effect until the scheduled closure of this fishery on September 30, 2019.

Reason and authorization for the action: The purpose of inseason action #27 was to provide access to available coho quota. With ten days remaining on the season, 41 percent of the non-mark-selective coho quota remained uncaught. The RA considered Chinook salmon landings and fishery effort and determined inseason action was necessary to be consistent with management objectives set preseason. Inseason action to modify fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

Consultation date and participants: Consultation on inseason action #27 occurred on September 20, 2019. Representatives from NMFS, ODFW, CDFW, and the Council participated in this consultation.

All other restrictions and regulations remain in effect as announced for the 2019 ocean salmon fisheries and 2020 salmon fisheries opening prior to May 1, 2020 (84 FR 19729, May 6, 2019), and as modified by prior inseason actions.

The RA determined that the best available information indicated that Chinook salmon abundance forecasts, incidental halibut allocation, and expected fishery effort in 2019 supported the above inseason actions recommended by the states of Washington, Oregon, and California. The states manage the fisheries in state waters adjacent to the areas of the U.S. exclusive economic zone consistent with these Federal actions. As provided by the inseason notice procedures of 50 CFR 660.411, actual notice of the described regulatory action was given, prior to the time the action was effective, by telephone hotline numbers 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.

NOAA's Assistant Administrator (AA) for NMFS finds that good cause exists for this notification to be issued without affording prior notice and opportunity for public comment under 5 U.S.C. 553(b)(B) because such notification would be impracticable. As previously noted, actual notice of the regulatory action was provided to fishers through telephone hotline and radio notification. This action complies with the requirements of the annual management measures for ocean salmon fisheries (84 FR 19729, May 6, 2019), the Pacific Coast Salmon Fishery Management Plan (FMP), and regulations implementing the FMP under 50 CFR 660.409 and 660.411. Prior notice and opportunity for public comment was impracticable because NMFS and the state agencies had insufficient time to provide for prior notice and the opportunity for public comment between the time Chinook salmon catch and effort projections and abundance forecasts were developed and fisheries impacts were calculated, and the time the fishery modifications had to be implemented in order to ensure that fisheries are managed based on the best available scientific information, ensuring that conservation objectives and limits for impacts to salmon species listed under the ESA are not exceeded. The AA also finds good cause to waive the 30-day delay in effectiveness required under 5 U.S.C. 553(d)(3), as a delay in effectiveness of this action would allow fishing at levels inconsistent with the goals of the FMP and the current management measures.

This action is authorized by 50 CFR 660.409 and 660.411 and is exempt from review under Executive Order 12866.

Background

The Pacific Coast Groundfish Fishery Management Plan (PCGFMP) and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subparts C through G, regulate fishing for over 90 species of groundfish off the coasts of Washington, Oregon, and California. The Pacific Fishery Management Council (Council) develops groundfish harvest specifications and management measures for two-year periods ( i.e., a biennium). NMFS published the final rule to implement harvest specifications and management measures for the 2019-2020 biennium for most species managed under the PCGFMP on December 12, 2018 (83 FR 63970). In general, the management measures set at the start of the biennial harvest specifications cycle help the various sectors of the fishery attain, but not exceed, the catch limits for each stock. The Council, in coordination with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, recommends adjustments to the management measures during the fishing year to achieve this goal.

At its September 12-18, 2019 meeting, the Council recommended increasing the limited entry fixed gear (LEFG) and open access (OA) trip limits for sablefish both north of 36° N lat. Pacific Coast groundfish fisheries are managed using harvest specifications or limits ( e.g., overfishing limits [OFL], acceptable biological catch [ABC], annual catch limits [ACL] and harvest guidelines [HG]) recommended biennially by the Council and based on the best scientific information available at that time (50 CFR 660.60(b)). During development of the harvest specifications, the Council also recommends mitigation measures ( e.g., trip limits, area closures, and bag limits) that are meant to mitigate catch so as not to exceed the harvest specifications. The harvest specifications and mitigation measures developed for the 2019-2020 biennium used data through the 2017 fishing year. Each of the adjustments to mitigation measures discussed below are based on updated fisheries information that was unavailable when the analysis for the current harvest specifications was completed. As new fisheries data becomes available, adjustments to mitigation measures are projected so as to help harvesters achieve but not exceed the harvest limits.

Sablefish is an important commercial species on the west coast with vessels targeting sablefish with both trawl and fixed gear (longlines and pots/traps). Sablefish is managed with a coast-wide ACL that is apportioned north and south of 36° N lat. with 73.8 percent going to the north and 26.2 percent going to the south. In 2019, the portion of the ACL for sablefish north of 36° N lat. is 5,606 mt with a fishery HG of 5,007 mt. The fishery HG north of 40°10′ N lat. is further divided between the LEFG and OA sectors with 90.6 percent, or 4,537 mt, going to the LEFG sector and 9.4 percent, or 471 mt, going to the OA sector. The 2019 portion of ACL for sablefish south of 36° N lat. is 1,990 mt with a fishery HG of 1,986 mt. South of 36° N lat., the fishery HG is further divided between the trawl (limited entry) and non-trawl (LEFG and OA) sectors with 42 percent or 834 mt going to the trawl sector, and the remaining 58 percent or 1,152 mt going to the fixed gear sector.

At the September 2019 Council meeting, the Council's Groundfish Management Team (GMT) received requests from industry members and members of the Council's Groundfish Advisory Subpanel to examine the potential to increase sablefish trips limits for the LEFG and OA fisheries north of 36° N lat. The intent of increasing trip limits is to increase harvest opportunities for vessels targeting sablefish which have been trending low in recent years. To evaluate potential increases to sablefish trip limits, the GMT made model-based landings projections under current regulations and alternative sablefish trip limits, including the limits ultimately recommended by the Council, for the LEFG and OA fisheries through the remainder of the year. Table 1 shows the projected sablefish landings, the sablefish allocations, and the projected attainment percentage by fishery under both the current trip limits and the Council's recommended adjusted trip limits. These projections were based on the most recent catch information available through early September 2019. Industry did not request changes to sablefish trip limits for the LEFG or OA fishery south of 36° N lat. Therefore, NMFS and the Council did not consider trip limit changes for these fisheries at this time.

As shown in Table 1, under the current trip limits, the model predicts catches of sablefish will be at or below 78 percent, or 213 mt of the 273 mt allocation, for LEFG and 93 percent, or 420 mt of the 449 mt allocation, for OA fishery north of 36° N lat. Under the Council's recommended trip limits, sablefish attainment is projected to increase in the LEFG and OA fisheries north of 36° N lat. up to 104 and 102 percent, respectively. However, to date in 2019, the model has overestimated landings by an average of 38 percent. Assuming this trend continues for 2019, the percentage attainment would likely be closer to the lower bound for both LEFG (90 percent or 247 mt) and OA (81 percent or 360 mt) north of 36° N lat.

Trip limit increases for sablefish are intended to increase attainment of the non-trawl HG. The proposed trip limit increases do not change projected impacts to co-occurring overfished species compared to the impacts anticipated in the 2019-20 harvest specifications because the projected impacts to those species assume that the entire sablefish ACL is harvested. Therefore, the Council recommended and NMFS is implementing, by modifying Tables 2 North and South to part 660, subpart E, trip limit changes for the LEFG fishery north of 36° N lat. to increase the limits from “1,300 lb (560 kg)/week, not to exceed 3,900 lb (1,769 kg)/two months” to “1,700 lb (771 kg)/week, not to exceed 5,100 lb (2,313 kg)/two months” beginning in period 5 (September and October) through the end of the year. NMFS is also implementing, by modifying Tables 3 North and South to part 660, subpart F, trip limit changes for the OA sablefish fishery north of 36° N lat. to increase the limits from “300 lb (136 kg)/day, or 1 landing per week of up to 1,400 lb (635 kg), not to exceed 2,800 lb (1,179 kg)/two months” to “300 lb (136 kg) per day, or one landing per week of up to 1,500 lb (680 kg), not to exceed 3,000 lb (1,360 kg) per two months” starting with period 5 (September and October) through the end of the year.

This final rule makes routine inseason adjustments to groundfish fishery management measures, based on the best scientific information available, consistent with the PCGFMP and its implementing regulations.

This action is taken under the authority of 50 CFR 660.60(c) and is exempt from review under Executive Order 12866.

The aggregate data upon which these actions are based are available for public inspection by contacting Karen Palmigiano in NMFS West Coast Region (see FOR FURTHER INFORMATION CONTACT , above), or view at the NMFS West Coast Groundfish website: http://www.westcoast.fisheries.noaa.gov/fisheries/groundfish/index.html.

Pursuant to 5 U.S.C. 553(b), NMFS finds good cause to waive prior public notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. The adjustments to management measures in this document ease restrictive trip limits fisheries in Washington, Oregon, and California. No aspect of this action is controversial, and changes of this nature were anticipated in the final rule for the 2019-2020 harvest specifications and management measures which published on December 12, 2018 (83 FR 63970).

At its September 2019 meeting, the Council recommended increases to the commercial trip limits be implemented as soon as possible so that harvesters may be able to take advantage of these higher limits before the end of the calendar year. Each of the adjustments to commercial management measures in this rule will create more harvest opportunity and allow fishermen to better attain species that are currently under attained without causing any additional impacts to the fishery. Each of these recommended adjustments also rely on new catch data that were not available and thus not considered during the 2019-2020 biennial harvest specifications process. New catch information through the end of the 2018 fishing year shows that attainment of sablefish) has been below its management points ( i.e., HG, ACL, and non-trawl allocation) in 2018 and would likely remain below state catch targets under status quo limits in 2019 and 2020.

These trip limit adjustments could provide up to an additional $508-thousand in ex-vessel revenue to harvesters, as well as $1.04-million in income and 16 jobs when including benefits to communities and associated businesses. Delaying implementation to allow for public comment would likely reduce the economic benefits to the commercial fishing industry and the businesses that rely on that industry because it is unlikely the new regulations would publish and could be implemented before the end of the calendar year. Therefore, providing a comment period for this action could significantly limit the economic benefits to the fishery, and would hamper the achievement of optimum yield from the affected fisheries.

Therefore, the NMFS finds reason to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(1) so that this final rule may become effective upon publication in the Federal Register . The adjustments to management measures in this document affect commercial fisheries by increasing opportunity and relieving participants of the more restrictive trip limits. These adjustments were requested by the Council's advisory bodies, as well as members of industry during the Council's September 2019 meetings, and recommended unanimously by the Council. No aspect of this action is controversial, and changes of this nature were anticipated in the biennial harvest specifications and management measures established through a notice and comment rulemaking for 2019-2020 (83 FR 63970).

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

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

The 2019 Pacific cod sideboard limit established for non-AFA crab vessels, and that are operating as CVs using pot gear in the Western Regulatory Area of the GOA, is 533 metric tons (mt), as established by the final 2019 and 2020 harvest specifications for groundfish of the GOA (84 FR 9416, March 14, 2019).

In accordance with § 680.22(e)(2)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the 2019 Pacific cod sideboard limit established for non-AFA crab vessels that are operating as CVs using pot gear in the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a sideboard directed fishing allowance of 523 mt, and is setting aside the remaining 10 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 680.22(e)(3), the Regional Administrator finds that this sideboard directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by non-AFA crab vessels that are operating as CVs using pot gear in the Western Regulatory Area of the GOA.

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

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the sideboard directed fishing closure of Pacific cod for non-AFA crab vessels that are subject to sideboard limits, and that are operating as CVs using pot gear in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 15, 2019.

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

This action is required by § 680.22 and is exempt from review under Executive Order 12866.