The Coast Guard will enforce a special local regulation for the Palm Beach Holiday Boat Parade published in 33 CFR 100.701, Table to § 100.701, Line 8 on December 7, 2019 from 5:30 p.m. through 8:30 p.m. This action is being taken to provide for the safety and security of navigable waterways during this one-day event. Our regulation for marine events within the Seventh Coast Guard District, § 100.701, specifies the location of the special local regulation for the Palm Beach Holiday Boat Parade, which encompasses a moving buffer zone of 50 yards around the parade as it travels along the Intracoastal Waterway in Palm Beach, FL. Only event sponsor designated participants and official patrol vessels will be allowed to enter the regulated area. Spectators may contact the Coast Guard Patrol Commander to request permission to pass through the regulated area. If permission is granted, spectators must pass directly through the regulated area at a safe speed without loitering.

In addition to this notice of enforcement in the Federal Register , the Coast Guard will inform the public through Local Notice to Mariners and marine information broadcasts at least 24 hours in advance of the enforcement of the special local regulation.

The Coast Guard will enforce a special local regulation for the Seminole Hard Rock Winterfest Holiday Boat Parade published in 33 CFR 100.701, Table to § 100.701, Line 10 on December 14, 2019 from 6:30 p.m. through 11:00 p.m. This action is being taken to provide for the safety and security of navigable waterways during this one-day event. Our regulation for marine events within the Seventh Coast Guard District, § 100.701, specifies the location of the special local regulation for the Seminole Hard Rock Winterfest Holiday Boat Parade, which encompasses a 50-yard, moving buffer zone around the parade as it travels along the New River and Intracoastal Waterway in Ft. Lauderdale, FL. Only event sponsor designated participants and official patrol vessels will be allowed to enter the regulated area. Spectators may contact the Coast Guard Patrol Commander to request permission to pass through the regulated area. If permission is granted, spectators must pass directly through the regulated area at a safe speed without loitering.

In addition to this notice of enforcement in the Federal Register , the Coast Guard will inform the public through Local Notice to Mariners and marine information broadcasts at least 24 hours in advance of the enforcement of the special local regulation.

Coast Guard District Commanders and Captains of the Port (COTP) must be immediately responsive to the safety and security needs within their jurisdiction; therefore, District Commanders and COTPs have been delegated the authority to issue certain local regulations. Safety zones may be established for safety or environmental purposes. A safety zone may be stationary and described by fixed limits or it may be described as a zone around a vessel in motion. Security zones limit access to prevent injury or damage to vessels, ports, or waterfront facilities. Special local regulations are issued to enhance the safety of participants and spectators at regattas and other marine events. Regulated Navigation Areas are water areas within a defined boundary for which regulations for vessels navigating within the area have been established by the regional Coast Guard District Commander.

Timely publication of these rules in the Federal Register may be precluded when a rule responds to an emergency, or when an event occurs without sufficient advance notice. The affected public is, however, often informed of these rules through Local Notices to Mariners, press releases, and other means. Moreover, actual notification is provided by Coast Guard patrol vessels enforcing the restrictions imposed by the rule. Because Federal Register publication was not possible before the end of the effective period, mariners were personally notified of the contents of the safety zones, security zones, special local regulations or regulated navigation areas listed in this notice by Coast Guard officials on-scene prior to any enforcement action. However, the Coast Guard, by law, must publish in the Federal Register notice of substantive rules adopted. To meet this obligation without imposing undue expense on the public, the Coast Guard periodically publishes a list of these temporary safety zones, security zones, special local regulations and regulated navigation areas. Permanent rules are not included in this list because they are published in their entirety in the Federal Register . Temporary rules are also published in their entirety if sufficient time is available to do so before they are placed in effect or terminated.

The following unpublished rules were placed in effect temporarily during the period between July 2019 and September 2019 unless otherwise indicated. To view copies of these rules, visit www.regulations.gov and search by the docket number indicated in the following table.

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

This rule acts on the May 30, 2019, request from the Illinois Environmental Protection Agency to incorporate revisions to Title 35 of the Illinois Administrative Code, Part 243—Air Quality Standards (Part 243). The background for today's action is discussed in detail in EPA's proposal, dated August 15, 2019 (84 FR 41672).

EPA provided a 30-day review and comment period for the August 15, 2019 proposed rule. The comment period ended on September 16, 2019. We received no adverse comments on the proposed rule.

EPA did, however, receive one anonymous comment. The commenter was unable to access the submission materials for the Illinois 2018 NAAQS Update, R19-6, through the online docket at www.regulations.gov, and therefore suggested the comment period be extended another 30 days. According to the document information on www.regulations.gov, the submission materials were posted on September 11, 2019. The comment was posted on September 17, 2019. EPA's August 15, 2019 proposed rule included contact information for the EPA Region 5 office, which could have assisted the commenter with accessing or receiving the submission materials, but EPA has no record of the commenter making such contact. Furthermore, since the commenter did not explain (or provide a legal basis for) how the final rule should differ in any way from the proposed action, and made no specific mention of the substantive aspects of the proposed action, the comment is not germane to this rulemaking. Therefore, EPA will not extend comment period for another 30 days.

EPA is approving a revision to Part 243 of the Illinois SIP.

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

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

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

• Is not expected to be an Executive Order 13771 (82 FR 9339, February 2, 2017) 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, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 6, 2020. 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) of the CAA.)

40 CFR part 52 is amended as follows:

Section 1331 of the Patient Protection and Affordable Care Act (Pub. L. 111-148, enacted on March 23, 2010), as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152, enacted on March 30, 2010) (collectively referred to as the Affordable Care Act) provides states with an option to establish a Basic Health Program (BHP). In the states that elect to operate a BHP, the BHP will make affordable health benefits coverage available for individuals under age 65 with household incomes between 133 percent and 200 percent of the federal poverty level (FPL) who are not otherwise eligible for Medicaid, the Children's Health Insurance Program (CHIP), or affordable employer-sponsored coverage, or for individuals whose income is below these levels but are lawfully present non-citizens ineligible for Medicaid. For those states that have expanded Medicaid coverage under section 1902(a)(10)(A)(i)(VIII) of the Social Security Act (the Act), the lower income threshold for BHP eligibility is effectively 138 percent due to the application of a required 5 percent income disregard in determining the upper limits of Medicaid income eligibility (section 1902(e)(14)(I) of the Act).

A BHP provides another option for states in providing affordable health benefits to individuals with incomes in the ranges described above. States may find a BHP a useful option for several reasons, including the ability to potentially coordinate standard health plans in the BHP with their Medicaid managed care plans, or to potentially reduce the costs to individuals by lowering premiums or cost-sharing requirements.

Federal funding for a BHP under section 1331(d)(3)(A) of the Affordable Care Act is based on the amount of premium tax credit (PTC) and cost-sharing reductions (CSRs) that would have been provided for the fiscal year to eligible individuals enrolled in BHP standard health plans in the state if such eligible individuals were allowed to enroll in a qualified health plan (QHP) through Affordable Insurance Exchanges (“Exchanges”). These funds are paid to trusts established by the states and dedicated to the BHP, and the states then administer the payments to standard health plans within the BHP.

In the March 12, 2014 Federal Register (79 FR 14112), we published a final rule entitled “Basic Health Program: State Administration of Basic Health Programs; Eligibility and Enrollment in Standard Health Plans; Essential Health Benefits in Standard Health Plans; Performance Standards for Basic Health Programs; Premium and Cost Sharing for Basic Health Programs; Federal Funding Process; Trust Fund and Financial Integrity” (hereinafter referred to as the BHP final rule) implementing section 1331 of the Affordable Care Act, which governs the establishment of BHPs. The BHP final rule established the standards for state and federal administration of BHPs, including provisions regarding eligibility and enrollment, benefits, cost-sharing requirements and oversight activities. While the BHP final rule codifies the overall statutory requirements and basic procedural framework for the funding methodology, it does not contain the specific information necessary to determine federal payments. We anticipated that the methodology would be based on data and assumptions that would reflect ongoing operations and experience of BHPs, as well as the operation of the Exchanges. For this reason, the BHP final rule indicated that the development and publication of the funding methodology, including any data sources, would be addressed in a separate annual BHP Payment Notice.

In the BHP final rule, we specified that the BHP Payment Notice process would include the annual publication of both a proposed and final BHP Payment Notice. The proposed BHP Payment Notice would be published in the Federal Register in October, 2 years prior to the applicable program year, 1 and would describe the proposed funding methodology for the relevant BHP program year, including how the Secretary considered the factors specified in section 1331(d)(3) of the Affordable Care Act, along with the proposed data sources used to determine the federal BHP payment rates for the applicable BHP program year. The final BHP Payment Notice would be published in the Federal Register in February, and would include the final BHP funding methodology, as well as the federal BHP payment rates for the applicable BHP program year. For example, payment rates in the final BHP Payment Notice published in February 2020 would apply to BHP program year 2021, beginning in January 2021. As discussed in section III.C. of this final notice, and as referenced in 42 CFR 600.610(b)(2), state data needed to calculate the federal BHP payment rates for the final BHP Payment Notice must be submitted to CMS.

As described in the BHP final rule, once the final methodology for the applicable program year has been published, we will only make modifications to the BHP funding methodology on a prospective basis, with limited exceptions. The BHP final rule provided that retrospective adjustments to the state's BHP payment amount may occur to the extent that the prevailing BHP funding methodology for a given program year permits adjustments to a state's federal BHP payment amount due to insufficient data for prospective determination of the relevant factors specified in the applicable final BHP Payment Notice. For example, the population health factor adjustment described in section III.D.3 of this final notice allows for a retrospective adjustment (at the state's option) to account for the impact that BHP may have had on the individual market risk pool and QHP premiums in the Exchange. Additional adjustments could be made to the payment rates to correct errors in applying the methodology (such as mathematical errors).

Under section 1331(d)(3)(ii) of the Affordable Care Act, the funding methodology and payment rates are expressed as an amount per eligible individual enrolled in a BHP standard health plan (BHP enrollee) for each month of enrollment. These payment rates may vary based on categories or classes of enrollees. Actual payment to a state would depend on the actual enrollment of individuals found eligible in accordance with a state's certified BHP Blueprint  2 eligibility and verification methodologies in coverage through the state BHP. A state that is approved to implement a BHP must provide data showing quarterly enrollment of eligible individuals in the various federal BHP payment rate cells. Such data must include the following:

• Personal identifier;

• Date of birth;

• County of residence;

• Indian status;

• Family size;

• Household income;

• Number of persons in household enrolled in BHP;

• Family identifier;

• Months of coverage;

• Plan information; and

• Any other data required by CMS to properly calculate the payment.

In the February 29, 2016 Federal Register (81 FR 10091), we published the final notice entitled “Basic Health Program; Federal Funding Methodology for Program Years 2017 and 2018” (hereinafter referred to as the February 2016 payment notice) that sets forth the methodology that would be used to calculate the federal BHP payments for the 2017 and 2018 program years. Updated factors for the program year 2018 federal BHP payments were provided in the CMCS Informational Bulletin, “Basic Health Program; Federal Funding Methodology for Program Year 2018” on May 17, 2017. 3

On October 11, 2017, the Attorney General of the United States provided the Department of Health and Human Services and the Department of the Treasury with a legal opinion indicating that the permanent appropriation at 31 U.S.C. 1324, from which the Departments had historically drawn funds to make CSR payments, cannot be used to fund CSR payments to insurers. In light of this opinion—and in the absence of any other appropriation that could be used to fund CSR payments—the Department of Health and Human Services directed us to discontinue CSR payments to issuers until Congress provides for an appropriation. In the absence of a Congressional appropriation for federal funding for CSRs, we cannot provide states with a federal payment attributable to CSRs that BHP enrollees would have received had they been enrolled in a QHP through an Exchange.

Starting with the payment for the first quarter (Q1) of 2018 (which began on January 1, 2018), we stopped paying the CSR component of the quarterly BHP payments to New York and Minnesota (the states), the only states operating a BHP in 2018. The states then sued the Secretary for declaratory and injunctive relief in the United States District Court for the Southern District of New York. See State of New York, et al, v. U.S. Department of Health and Human Services, 18-cv-00683 (S.D.N.Y. filed Jan. 26, 2018). On May 2, 2018, the parties filed a stipulation requesting a stay of the litigation so that HHS could issue an administrative order revising the 2018 BHP payment methodology. As a result of the stipulation, the court dismissed the BHP litigation. On July 6, 2018, we issued a Draft Administrative Order on which New York and Minnesota had an opportunity to comment. Each state submitted comments. We considered the states' comments and issued a Final Administrative Order on August 24, 2018 (Final Administrative Order) setting forth the payment methodology that would apply to the 2018 BHP program year.

The payment methodology we are finalizing in this final notice applies the methodology described in the Final Administrative Order to program years 2019 and 2020, with one additional adjustment, the Metal Tier Selection Factor (MTSF), that will apply for program year 2020 only.

On the Exchange, if an enrollee chooses a QHP and the value of the PTC to which the enrollee is entitled is greater than the premium of the selected plan, then the PTC is reduced to be equal to the premium. This usually occurs when enrollees eligible for larger PTCs choose bronze-level QHPs, which typically have lower premiums on the Exchange than silver-level QHPs. Prior to 2018, we believed that the impact of these choices and plan selections on the amount of PTCs that the federal government paid was relatively small. During this time, most enrollees in income ranges up to 200 percent of FPL chose silver-level QHPs, and in most cases where enrollees chose bronze-level QHPs, the premium was still more than the PTC. Based on our analysis of the percentage of persons with incomes below 200 percent of FPL choosing bronze-level QHPs and the average reduction in the PTCs paid for those enrollees, we believe that the total PTCs paid for persons with incomes below 200 percent of FPL were reduced by about 1 percent in 2017. We believe that the magnitude of this effect was similar from 2014 to 2016 as well. Therefore, we did not seek to make an adjustment based on the effect of enrollees choosing non-silver-level QHPs in developing the BHP payment methodology applicable to program years prior to 2018. However, after the discontinuance of the CSR payments in October 2017, several changes occurred that increased the expected impact of enrollees' plan choices on the amount of PTC paid, as further described in section III.D.6 of this final notice. These changes led to a larger percentage of individuals choosing bronze-level QHPs, and for those individuals who chose bronze-level QHPs, these changes also generally led to larger reductions in PTCs paid by the federal government per individual. The combination of more individuals with incomes below 200 percent of FPL choosing bronze-level QHPs and the reduction in PTCs had an impact on PTCs paid by the federal government for enrollees with incomes below 200 percent of FPL. Therefore, we believe that the impacts due to enrollees' plan choices are now larger, have become material, and are now a relevant factor necessary for purposes of determining the payment amount as set forth by section 1331(d)(3)(A)(ii) of the Affordable Care Act.

Thus, we proposed and are finalizing an adjustment to account for the impact of individuals selecting different metal tier level plans in the Exchange, which we refer to as the Metal Tier Selection Factor (MTSF). We will include the MTSF in the methodology for program year 2020, and we will not include the MTSF in the methodology for program year 2019. Please see section III.D.6 of this final notice for a more detailed discussion of the MTSF.

As specified in the BHP proposed payment notice for program years 2019 and 2020, we have been making BHP payments for program year 2019 using the methodology described in the Final Administrative Order. Payments issued to states for 2019 will be conformed to the rates applicable to the finalized 2019 payment methodology established in this final notice through reconciliation. If a state chooses to change its premium election for 2019, we will also apply that change through reconciliation.

The scope of this final notice is limited to only the final payment methodologies for 2019 and 2020, and any payment methodology for a future year will be proposed and finalized through other rulemaking.

The following sections, arranged by subject area, include a summary of the public comments that we received, and our responses. We received a total of 47 timely comments from individuals and organizations, including, but not limited to, state Medicaid agencies, health plans, health care providers, advocacy organizations, and research groups.

For a complete and full description of the BHP proposed funding methodology for program years 2019 and 2020, see the “Basic Health Program; Federal Funding Methodology for Program Years 2019 and 2020” proposed notice published in the April 2, 2019 Federal Register (84 FR 12552) (hereinafter referred to as the April 2019 proposed payment notice).

In the April 2019 proposed payment notice, we proposed the methodologies for how the federal BHP payments would be calculated for program years 2019 and 2020.

We received the following comments on the background information included in the April 2019 proposed payment notice:

Comment: Some commenters expressed general support for the BHP.

Response: We appreciate the support from these commenters; however, since the comments were not specific to the BHP payment methodologies for program years 2019 or 2020, they are outside the scope of this rulemaking and will not be addressed in this final rule.

B. Overview of the Funding Methodology and Calculation of the Payment Amount

We proposed in the overview of the funding methodology to calculate the PTC and CSR as consistently as possible and in general alignment with the methodology used by Exchanges to calculate the advance payments of the PTC and CSR, and by the Internal Revenue Service (IRS) to calculate the allowable PTC. We proposed four equations (1, 2a, 2b, and 3) that would, if finalized, compose the overall BHP payment methodology.

Comment: Many commenters recommended that CMS not include the MTSF in the 2019 and 2020 BHP payment methodologies and offered several rationales for not adopting the MTSF. Many commenters stated that CMS should only make changes to the BHP payment methodology for future program years. Two commenters expressed concern about the timing for publication of the proposed and final payment methodologies, including the proposed introduction of the MTSF for 2019 and 2020. Several commenters questioned if the rationale for including the MTSF in the 2019 and 2020 payment methodologies was sufficient, and some commenters specifically questioned whether the changes to the percentage of enrollees choosing bronze-level QHPs and the decrease in the PTCs for these enrollees were significant. Many commenters noted that we found that the percentage of enrollees with incomes below 200 percent of FPL choosing bronze-level QHPs rose by a small percentage (from 11 percent in 2017 to 13 percent in 2018), and stated that this increase was insufficient to justify including the MTSF in the payment methodology. Some commenters also stated that individuals in non-BHP states could have enrolled in bronze-level QHPs prior to 2018, asserting that CMS should have accounted for that possibility starting in the beginning of the BHP instead of waiting several years.

Some commenters stated that the MTSF is inappropriate because BHPs are prohibited from offering bronze-level coverage to their enrollees.

Several commenters questioned whether the statute permits CMS to include the MTSF in the payment methodology, as the MTSF is not explicitly identified in the statute.

Several commenters disagreed with including the MTSF because it would decrease federal funding and increase state costs for BHP, or else result in decreased benefits for BHP enrollees.

Some commenters also stated that the trend of increased bronze-level QHP enrollment and the increase in silver-level QHP premiums for 2017 and 2018 has slowed and/or reversed between 2018 and 2019, and questioned whether the MTSF should be applied. Some commenters cited analysis from the Kaiser Family Foundation of plan selection by metal tier, which states that the percentage of enrollees nationwide across all income levels that selected or were auto-enrolled in bronze-level QHPs during open enrollment increased by about 6 percent from 2017 to 2018 (from 22.9 percent in 2017 to 28.6 percent in 2018) and by about 2 percent from 2018 to 2019 (from 28.6 percent to 30.6 percent). 4

In addition, commenters cited an analysis by the Kaiser Family Foundation on QHP premium levels by state and by metal tier, 5 which states that the national average lowest cost bronze-level QHP premium increased by 17.6 percent from 2017 to 2018, and decreased by 0.6 percent from 2018 to 2019. 6 This analysis also found that the national average benchmark silver-level QHP premium increased by 34.0 percent from 2017 to 2018 and decreased by 0.8 percent from 2018 to 2019. 7 The ratio of the national average benchmark silver-level QHP premium to the lowest cost bronze-level QHP premium in this analysis increased from 123.8 percent in 2017 to 141.1 percent in 2018, and then decreased to 140.7 percent in 2019. 8

Response: We adopted the schedule reflected in § 600.610 to align with the approach for how payment parameters for Exchanges are determined as well as how CHIP allotments were determined during the initial implementation of the program. 9 The schedule is also intended to provide a state the information it needs to appropriately budget for BHP each year. 10 We recognize the timeline was not followed each year and are considering whether modifications to the schedule captured in regulation are appropriate based on lessons learned and experience with the BHP. We would propose any such changes through notice and comment rulemaking to allow stakeholders and interested parties an opportunity to comment. After consideration of the comments received, and further analysis of timing considerations, for 2019 we are finalizing our proposal to apply the methodology described in the Final Administrative Order, and we are not finalizing our proposal to apply the MTSF in 2019.

For program year 2020, we are finalizing our proposal to apply the methodology described in the Final Administrative Order and to apply the MTSF. We also proposed to update the value of the MTSF for 2020 with 2019 data. However, since the 2019 PTC and enrollment data necessary to update the factor are not available at this time, we will apply the MTSF at the value of 97.04 percent for 2020. We believe that applying the MTSF value based on 2018 data is appropriate because the discontinuation of CSR payments to issuers continued in 2019 as Congress has not provided an appropriation for those payments. In addition, our analysis of preliminary 2019 data that is available suggests that the value of the MTSF would be similar (likely within 0.5 percentage points of the value of the MTSF based on 2018 data), which further supports using 2018 data as the basis for calculating the 2020 MTSF value. Please see section III.D.6. of this final notice for a description of how the MTSF was calculated.

As detailed in the April 2019 proposed payment notice and in this final notice, we continue to believe that it is appropriate to update the methodology for 2020 to take the MTSF into account following the discontinuance of the CSR payments due to several changes that occurred that increased the impact of enrollees' plan choices on the amount of PTC paid by the federal government. First, silver-level QHP premiums increased at a higher percentage in comparison to the increase in premiums of other metal-tier plans in many states starting in 2018 (on average, the national average benchmark silver-level QHP premium increased about 17 percent more than the national average lowest-cost bronze-level QHP premium). Second, there was an increase in the percentage of enrollees with incomes below 200 percent of FPL choosing bronze-level QHPs. Third, the likelihood that a person choosing a bronze-level QHP would pay $0 premium also increased, as the difference between the bronze-level QHP premium and the full value of APTC widened. Finally, the average estimated reduction in APTC for enrollees with incomes below 200 percent of FPL that chose bronze-level QHPs in 2017 compared to 2018 increased. Our analysis of 2017 and 2018 data documents these effects.

In 2017, prior to the discontinuance of CSR payments, 11 percent of QHP enrollees with incomes below 200 percent of FPL elected to enroll in bronze-level QHPs, and on average the PTC paid on behalf of those enrollees was 11 percent less than the full value of APTC. In 2018, after the discontinuance of the CSR payments, 13 percent of QHP enrollees with incomes below 200 percent of FPL chose bronze-level QHPs, and on average, the PTC paid on behalf of those enrollees was 23 percent less than the full value of the APTC. In addition, the ratio of the national average silver-level QHP premium to the national average bronze-level plan premium increased from 17 percent higher in 2017 to 33 percent higher in 2018. While the increase in the percentage of QHP enrollees with incomes below 200 percent of FPL who elected to enroll in bronze-level QHPs between 2017 and 2018 is about 2 percent, the accompanying percentage reduction of the PTC paid by the federal government for QHP enrollees with incomes below 200 percent of FPL more than doubled between 2017 and 2018. Consistent with section 1331(d)(3) of the Affordable Care Act, which requires payments to states be based on what would have been provided if BHP eligible individuals were allowed to enroll in QHPs, we believe it is appropriate to consider how individuals would have chosen different plans—including across metal tiers—as part of the BHP payment methodology and are finalizing the application of the MTSF for program year 2020.

Regarding comments that BHPs are prohibited from providing bronze-level coverage to enrollees and thus the BHP payment methodology should not assume enrollees would have chosen bronze-level QHPs in the Exchange, section 1331(d)(3)(A)(ii) of the Affordable Care Act directs the Secretary to “take into account all relevant factors necessary to determine the value of the” PTCs and CSRs that would have been provided to eligible individuals if they would have enrolled in QHPs through an Exchange. We further note the statute does not set forth an exhaustive list of what those necessary relevant factors are, providing the Secretary with discretion and authority to identify and take into consideration factors that are not specifically enumerated in the statute. In addition, section 1331(d)(3)(A)(ii) of the Affordable Care Act requires the Secretary to “take into consideration the experience of other States with respect to participation on Exchanges and such credit and reductions provided to residents of the other States, with a special focus on enrollees with income below 200 percent of poverty.”

We believe that the data sources that commenters submitted regarding bronze-level QHP enrollment and the data sources comparing the increases in silver-level QHP premiums and bronze-level QHP premium support, not undermine, our position that the MTSF is a relevant factor that should be taken into account in the BHP payment methodology. As previously stated, we believe that the MTSF is a relevant factor because of the combined effects of increased bronze-level QHP enrollment and the reduction of PTCs paid by the federal government subsequent to the discontinuation of CSRs. The data sources submitted by the commenters show increases in bronze-level QHP enrollment in both 2018 and 2019. We note that the commenters did not submit data sources pertaining to bronze-level QHP enrollment specifically for enrollees with incomes less than 200 percent of FPL. In addition, the analysis cited by commenters shows that the average ratio of the national average silver-level benchmark QHP premium to the average lowest cost bronze-level QHP premium remained almost exactly the same (141.1 percent in 2018, 140.7 percent in 2019). This data supports the conclusion that there is a continued effect of material reductions in the amount of PTCs made by the federal government as a result of the discontinuation of CSRs. We anticipate updating the MTSF value as necessary and appropriate in future years.

We recognize that applying the MTSF would reduce BHP funding, but we nonetheless believe that incorporating the MTSF into the BHP payment methodology for program year 2020 accurately reflects the changes in PTCs after the federal government stopped making CSR payments and is consistent with section 1331(d)(3)(A)(ii) of the Affordable Care Act. Regarding the comments about the potential impact of reduced BHP funding on benefits available under BHPs, we note that the benefits requirements at § 600.405 are still applicable and therefore benefits available under BHPs should not be impacted.

Comment: Several commenters questioned the methodology in calculating the MTSF. One commenter noted that while most states permit age rating, some states (including New York) do not use age rating and other states' varying rating practices could result in variability in the calculation of BHP payments. Several commenters stated that CMS should not rely on the experience from other states in calculating the BHP payments, specifically with regard to the MTSF. In particular, some commenters suggested that the MTSF for New York should rely on the experience of bronze-level QHP selection from 2015. These commenters stated the experience in New York in 2015—before BHP was fully implemented—showed that a smaller percentage of enrollees with incomes below 200 percent of FPL chose bronze-level QHPs than the percentage of such enrollees nationwide who chose bronze-level QHPs nationwide in 2017. Some commenters also stated that the amount of PTC reduction for these enrollees in New York in 2015 was about $12 per enrollee per month. These commenters recommended that these figures be used to develop the MTSF for New York's BHP payments. Some commenters also suggested applying the percentage increases in the enrollees choosing bronze-level QHPs and the PTC reduction to the 2015 experience for New York's BHP payments. Some commenters cited New York's enrollment assistance efforts as the reason for a smaller percentage of enrollees choosing bronze-level QHPs in 2015.

Response: We recognize that New York requires pure community rating (and does not permit age rating); however, the BHP statute directs the Secretary to take into consideration the experience of other states when developing the payment methodology  11 and doing so is a reasonable basis for calculating the MTSF. In general, the increases in the silver-level QHP premiums due to the discontinuance of CSR payments were fairly similar across most states  12 and we expect that enrollees' decisions about which metal tier plan to enroll in is generally comparable across all states. Fundamentally, enrollees in each state are making decisions under similar conditions comparing silver-level QHPs to other metal tier plans. It is not clear how states that use different rating rules (age rating or pure community rating) would have significantly different experiences in the amounts added to the QHP premiums after the discontinuation of CSRs, nor is it obvious that the use of one set of rating rules would lead to larger or smaller effects on the QHP premiums than another set of rules. We also note that the BHP payment rates are developed consistent with the state's rules on age rating since the beginning of the BHP, and we are continuing this policy for the payment methodologies finalized in this rulemaking for program years 2019 and 2020. As such, the impact of age rating, or the prohibition of age rating, in a BHP state has and will be reflected in the BHP payment methodology, and it is unnecessary to account for these state-specific differences as part of the MTSF.

In addition, we believe that using 2015 data, as the basis for the MTSF is not appropriate. Premiums and enrollment patterns have changed over time, including changes in bronze-level and silver-level QHP premiums, changes in the ratio of the silver-level to bronze-level QHP premiums, and changes to the amount of PTC paid by the federal government. While 2015 data provides some evidence of consumer plan selections prior to the full implementation of New York's BHP, we do not believe that the 2015 data should be relied upon for the development of MTSF for the following reasons. First, New York did not begin implementing its BHP until April 2015 (and did not fully implement BHP until 2016). Second, the 2015 data predates the discontinuance of the CSR payments in 2017 and the subsequent adjustments to premiums in 2018 (particularly to silver-level QHP premiums). Therefore, relying on data from 2015 does not capture the more recent experience of New York and/or other states subsequent to the discontinuation of CSRs, which the MTSF is intended to reflect.

We also note that the statute does not require the Secretary to address every difference in Exchange operations among the states (including, but not limited to, enrollment assistance efforts by individual Exchanges). Instead, section 1331(d)(3)(A)(ii) of the Affordable Care Act directs the Secretary to take into account “all relevant factors necessary” when establishing the payment methodology. We further believe that it is not practicable to address every potential difference in Exchange operations, and that not every potential difference in Exchange operations would be a relevant factor necessary to take into account.

Comment: Several commenters stated that they believed CMS did not have the authority to exclude payment for the CSR portion of the BHP payment rate. In addition, several other commenters recommended that CMS add back the CSR portion of the payment.

Response: As noted in the April 2019 proposed payment notice, in light of the Attorney General's opinion regarding CSR payments—and in the absence of any other appropriation that could be used to fund CSR payments—HHS directed CMS to discontinue CSR payments to issuers until Congress provides for an appropriation. In the absence of a Congressional appropriation for federal funding for CSRs, we also cannot provide states with a federal payment attributable to CSRs that BHP enrollees would have received had they been enrolled in a QHP through an Exchange.

Comment: Several commenters discussed the interactions between the reinsurance waiver approved for Minnesota under section 1332 of the Affordable Care Act (“Minnesota reinsurance section 1332 waiver”) and Minnesota's BHP. Some commenters expressed concern that the pass-through funding amounts that Minnesota receives from the federal government under the Minnesota reinsurance section 1332 waiver are lower than they should be, as the Minnesota BHP is not taken into account in those calculations because BHP enrollees are not eligible to enroll in QHPs. Some commenters observed that the Minnesota reinsurance section 1332 waiver reduced premiums in Minnesota, noting this has led to a lower BHP funding amount for Minnesota because the PTC values are therefore lower. One commenter stated that CMS did not take into consideration the experience of other states, particularly states without reinsurance programs where premiums were likely higher, in the BHP payment methodology. One commenter recommended that CMS interpret section 1331(d)(3)(A)(ii) of the Affordable Care Act as to consider the Minnesota reinsurance section 1332 waiver as a relevant factor necessary in determining the payment amount under the BHP payment methodology by basing Minnesota's value of PTC for BHP on what the state's reference premium would be absent the state-based reinsurance program. In addition, a commenter questioned the appropriateness of considering the experience of other states with respect to bronze-level QHP selections for purposes of Minnesota's BHP payments when BHP eligible individuals in Minnesota cannot enroll in bronze-level QHPs and CMS did not take into consideration the experience of other states without reinsurance programs.

Response: Calculations of pass-through funding amounts under section 1332 waivers are outside the scope of this rulemaking, which is specific to the BHP payment methodology for the 2019 and 2020 program years. We also note there are separate statutes governing section 1332 waivers and BHP, including separate provisions outlining the determination of payments under each program. 13 As detailed above, we believe it is appropriate to incorporate the MTSF in the 2020 BHP payment methodology and to calculate the MTSF, taking into consideration the experience of other states.

With respect to the comments regarding the BHP payment methodology and its application in Minnesota, we do not believe it would be appropriate to disregard the impact of the Minnesota reinsurance section 1332 waiver in determining BHP payments, because section 1331(d)(3)(A)(i) of the Affordable Care Act requires that the payment amount is what “would have been provided for the fiscal year to eligible individuals enrolled in standard health plans in the State if such eligible individuals were allowed to enroll in qualified health plans through an Exchange.” The Minnesota reinsurance section 1332 waiver lowers the premium that eligible individuals would pay if they were allowed to enroll in QHPs through the Exchange, and therefore is a necessarily relevant factor to take into account for purposes of determining the BHP payment amount because it has the effect of lowering the value of PTCs. Therefore, we do not believe it would be appropriate to base Minnesota's value of PTC for BHP payments based on what the state's reference premium would be absent the state-based reinsurance program. We further note that we do not take into consideration the experience of other states that do not have state-based reinsurance programs because the changes created by the Minnesota section 1332 reinsurance waiver directly affect the PTCs paid for enrollees participating in the Exchange in Minnesota. We believe taking into account the specific impact of the Minnesota section 1332 reinsurance waiver is the best reflection of the PTCs that would have been provided if BHP enrollees were allowed to enroll in a QHP through an Exchange and receive PTCs, as required by section 1331(d)(3)(A)(i) of the Affordable Care Act.

Regarding metal tier selection, as detailed above, we believe that considering which metal level plans enrollees would have selected if they were enrolled in QHPs through the Exchange is another relevant factor necessary to determine what would have been paid if eligible individuals in a BHP were allowed to enroll in QHPs through an Exchange. Consistent with the direction under the last sentence of section 1331(d)(3)(A)(ii) of the Affordable Care Act, when developing the MTSF, we took into consideration the experience of other states with respect to participation in an Exchange and the PTCs provided to residents of other states, with a special focus on enrollees with income below 200 percent of FPL. In the case of the MTSF, if not for the BHP, persons with incomes below 200 percent of FPL would be expected to enroll in QHPs on the Exchanges and receive PTC. Based on the current experience of states without BHPs, the cessation of CSR payments to issuers caused many QHP issuers to increase premiums to account for the costs of providing CSRs to consumers. The increased premiums caused PTCs to increase and led some enrollees to select bronze-level QHPs, which resulted in the federal government paying less than the full value of PTCs it would have paid had those enrollees selected silver-level QHPs. However, there is an important difference in the impact of the enrollee metal tier selection when considering how much PTC and CSRs would have been provided to individuals enrolled in a BHP if they were instead enrolled in a QHP on an Exchange in a state with a state reinsurance program. Holding all other things equal, in a state with a reinsurance program, we expect that the QHP premiums on the Exchange, as well as PTCs paid for eligible enrollees, would be similar with or without BHP in place. Thus, there would be no need to make a separate adjustment for the impacts of a state reinsurance program.

Comment: Several commenters recommended that the BHP payments should be sufficient to ensure that American Indian and Alaska Native enrollees in BHPs do not pay higher premiums than they would have paid if they had enrolled in a bronze-level QHP through an Exchange.

Response: Section 1331(a)(2)(A)(i) of the Affordable Care Act requires that states operating BHPs must ensure that individuals do not pay a higher monthly premium than they would have if they had been enrolled in the second lowest cost silver-level QHP in an Exchange, factoring in any PTC individuals would have received. Therefore, we have not adopted this recommendation.

Comment: Several commenters recommended that for the purpose of calculating BHP payments, CMS assume that American Indian and Alaska Native enrollees in BHPs would have enrolled in the second-lowest cost bronze-level QHP instead of the lowest-cost bronze-level QHP on the Exchanges.

Response: We did not propose and are not adopting this recommendation. The only portion of the rate affected by the use of the lowest-cost bronze-level QHP is the CSR portion of the BHP payment; due to the discontinuance of CSR payments and the accompanying modification to the BHP payment methodology, the CSR portion of the payment is assigned a value of 0, and any change to the assumption about which bronze-level QHP is used would therefore have no effect on the BHP payments.

In this section, we proposed that a state implementing BHP provide us with an estimate of the number of BHP enrollees it will enroll in the upcoming BHP program, by applicable rate cell, to determine the federal BHP payment amounts. For each state, we proposed using rate cells that separate the BHP population into separate cells based on the following factors: Age; geographic rating area; coverage status; household size, and income. For specific discussions, please refer to the April 2019 proposed payment notice.

We received no comments on this aspect of the proposed methodology. We are finalizing these policies as proposed.

We proposed in this section of the April 2019 proposed payment notice to use, to the extent possible, data submitted to the federal government by QHP issuers seeking to offer coverage through an Exchange that uses HealthCare.gov to determine the federal BHP payment cell rates. However, for states operating a State-based Exchange (SBE) that do not use HealthCare.gov , we proposed that such states submit required data for CMS to calculate the federal BHP payment rates in those states. For specific discussions, please refer to the April 2019 proposed payment notice.

We received no comments on this aspect of the proposed methodology. We are finalizing these policies as proposed, with one change. We proposed that a SBE interested in obtaining the applicable federal BHP payment rates for its state must submit such data accurately, completely, and as specified by CMS, by no later than 30 days after the publication of the final notice for CMS to calculate the applicable rates for 2019, and by no later than October 15, 2019, for CMS to calculate the applicable rates for 2020. Given the publication date for this final notice, we are modifying the timeline for submitting the applicable data for both program years 2019 and 2020. The data must be submitted by no later than 30 days after the publication of this final notice, which will allow states additional time to submit the required 2019 and 2020 data.

In this section of the April 2019 proposed payment notice, we proposed eight specific variables to use in the payment equations that compose the overall BHP funding methodology. (seven variables are described in section III.D. of this final notice, and the premium trend factor is described in section III.E. of this final notice). For each proposed variable, we included a discussion on the assumptions and data sources used in developing the variables. For specific discussions, please refer to the April 2019 proposed payment notice.

We received several comments that related to the MTSF. Those comments and our responses are described in section II.B. of this final notice. We did not receive comments on any other factors, and are finalizing the other factors as proposed.

In this section of the April 2019 proposed payment notice, we proposed to provide states implementing BHP with the option to use the 2018 or 2019 QHP premiums multiplied by a premium trend factor to calculate the federal BHP payment rates instead of using the 2019 or 2020 QHP premiums, for the 2019 and 2020 BHP program years, respectively. For specific discussions, please refer to the April 2019 proposed payment notice.

We received no comments on this aspect of the proposed methodology. We are finalizing this policy as proposed.

In this section of the April 2019 proposed payment notice, we proposed to provide states implementing BHP the option to develop a methodology to account for the impact that including the BHP population in the Exchange would have had on QHP premiums based on any differences in health status between the BHP population and persons enrolled through the Exchange. For specific discussions, please refer to the April 2019 proposed payment notice.

We received no comments on this aspect of the methodology. We are finalizing this policy as proposed, with one change. We proposed to require a state that wanted to elect this option to submit its proposed protocol within 60 days of the publication of the final payment methodology for our approval for the 2019 program year, and by August 1, 2019 for the 2020 program year. Given the publication date of this final notice, we are modifying this timeline and will require a state electing this option to submit its proposed protocol within 60 days of the publication of this final notice for our approval for both the 2019 and 2020 program years, which will allow a state additional time to submit its proposed protocol for program years 2019 and 2020.

Section 1331(d)(3) of the Affordable Care Act directs the Secretary to consider several factors when determining the federal BHP payment amount, which, as specified in the statute, must equal 95 percent of the value of the PTC and CSRs that BHP enrollees would have been provided had they enrolled in a QHP through an Exchange. Thus, the BHP funding methodology is designed to calculate the PTC and CSRs as consistently as possible and in general alignment with the methodology used by Exchanges to calculate the advance payments of the PTC and CSRs, and by the IRS to calculate final PTCs. In general, we have relied on values for factors in the payment methodology specified in statute or other regulations as available, and have developed values for other factors not otherwise specified in statute, or previously calculated in other regulations, to simulate the values of the PTC and CSRs that BHP enrollees would have received if they had enrolled in QHPs offered through an Exchange. In accordance with section 1331(d)(3)(A)(iii) of the Affordable Care Act, the final funding methodology must be certified by the Chief Actuary of CMS, in consultation with the Office of Tax Analysis (OTA) of the Department of the Treasury, as having met the requirements of section 1331(d)(3)(A)(ii) of the Affordable Care Act.

Section 1331(d)(3)(A)(ii) of the Affordable Care Act specifies that the payment determination shall take into account all relevant factors necessary to determine the value of the PTCs and CSRs that would have been provided to eligible individuals, including but not limited to, the age and income of the enrollee, whether the enrollment is for self-only or family coverage, geographic differences in average spending for health care across rating areas, the health status of the enrollee for purposes of determining risk adjustment payments and reinsurance payments that would have been made if the enrollee had enrolled in a QHP through an Exchange, and whether any reconciliation of PTC and CSR would have occurred if the enrollee had been so enrolled. Under the payment methodologies for 2015 (79 FR 13887) (published on March 12, 2014), for 2016 (80 FR 9636) (published on February 24, 2015), and for 2017 and 2018 (81 FR 10091) (published on February 29, 2016), the total federal BHP payment amount has been calculated using multiple rate cells in each state. Each rate cell represents a unique combination of age range, geographic area, coverage category (for example, self-only or two-adult coverage through the BHP), household size, and income range as a percentage of FPL, and there is a distinct rate cell for individuals in each coverage category within a particular age range who reside in a specific geographic area and are in households of the same size and income range. The BHP payment rates developed also are consistent with the state's rules on age rating. Thus, in the case of a state that does not use age as a rating factor on an Exchange, the BHP payment rates would not vary by age.

Under the methodology in the Final Administrative Order, the rate for each rate cell is calculated in two parts. The first part is equal to 95 percent of the estimated PTC that would have been paid if a BHP enrollee in that rate cell had instead enrolled in a QHP in an Exchange. The second part, 95 percent of the estimated CSR payment that would have been made if a BHP enrollee in that rate cell had instead enrolled in a QHP in an Exchange, is assigned a value of zero because there is presently no available appropriation from which we can make the CSR portion of any BHP payment.

Equations (1a) and (1b) will be used to calculate the estimated PTC for eligible individuals enrolled in the BHP in each rate cell. We note that throughout this final notice, when we refer to enrollees and enrollment data, we mean data regarding individuals who are enrolled in the BHP who have been found eligible for the BHP using the eligibility and verification requirements that are applicable in the state's most recent certified Blueprint. By applying the equations separately to rate cells based on age, income and other factors, we effectively take those factors into account in the calculation. In addition, the equations reflect the estimated experience of individuals in each rate cell if enrolled in coverage through an Exchange, taking into account additional relevant variables. Each of the variables in the equations is defined in this section, and further detail is provided later in this section of this final notice. In addition, we describe in Equation (2a) and Equation (2b) how we proposed to calculate the adjusted reference premium (ARP) that is used in Equations (1a) and (1b).

We will continue to calculate the estimated PTC, on a per enrollee basis, for each rate cell for each state based on age range, geographic area, coverage category, household size, and income range. We will calculate the PTC portion of the rate in a manner consistent with the methodology used to calculate the PTC for persons enrolled in a QHP, with the following adjustments. First, the PTC portion of the rate for each rate cell will represent the mean, or average, expected PTC that all persons in the rate cell would receive, rather than being calculated for each individual enrollee. Second, the reference premium (RP) (described in more detail later in the section) used to calculate the PTC will be adjusted for the BHP population health status, and in the case of a state that elects to use 2018 premiums for the basis of the BHP federal payment, for the projected change in the premium from 2018 to 2019, to which the rates announced in the final payment methodology would apply. These adjustments are described in Equation (2a) and Equation (2b). Third, the PTC will be adjusted prospectively to reflect the mean, or average, net expected impact of income reconciliation on the combination of all persons enrolled in the BHP; this adjustment, as described in section III.D.5. of this final notice, will account for the impact on the PTC that would have occurred had such reconciliation been performed. Fourth, for program year 2020, the PTC will be adjusted to account for the estimated impacts of plan selection; this adjustment, the MTSF, will reflect the effect on the average PTC of individuals choosing different metal-tier levels of QHPs. For program year 2019, the MTSF will not apply, and thus would not change the value of the PTC amount of the BHP payment. Finally, the rate is multiplied by 95 percent, consistent with section 1331(d)(3)(A)(i) of the Affordable Care Act. We note that in the situation where the average income contribution of an enrollee would exceed the ARP, we will calculate the PTC to be equal to 0 and will not allow the value of the PTC to be negative.

We will use Equation (1a) to calculate the PTC rate for program year 2019 and Equation (1b) to calculate the PTC rate for program year 2020, consistent with the methodology described above:

As part of the calculations for the PTC component, we will continue to calculate the value of the ARP as described below. Consistent with the approach in previous years, we will allow states to choose between using the actual current year premiums or the prior year's premiums multiplied by the premium trend factor (as described in section III.E. of this final notice). Therefore, we describe how we would calculate the ARP under each option.

In the case of a state that elected to use the reference premium (RP) based on the current program year (for example, 2019 premiums for the 2019 program year), we will calculate the value of the ARP as specified in Equation (2a). The ARP will be equal to the RP, which will be based on the second lowest cost silver-level QHP premium in the applicable program year, multiplied by the BHP population health factor (PHF) (described in section III.D. of this final notice), which will reflect the projected impact that enrolling BHP-eligible individuals in QHPs through an Exchange would have had on the average QHP premium, and multiplied by the premium adjustment factor (PAF) (described in section III.D. of this final notice), which will account for the change in silver-level QHP premiums due to the discontinuance of CSR payments.

In the case of a state that elected to use the RP based on the prior program year (for example, 2018 premiums for the 2019 program year, as described in more detail in section III.F. of this final notice), we will calculate the value of the ARP as specified in Equation (2b). The ARP will be equal to the RP, which will be based on the second lowest cost silver-level QHP premium in 2018, multiplied by the BHP PHF (described in section III.D. of this final notice), which will reflect the projected impact that enrolling BHP-eligible individuals in QHPs on an Exchange would have had on the average QHP premium, multiplied by the PAF (described in section III.D. of this final notice), which will account for the change in silver-level QHP premiums due to the discontinuance of CSR payments, and multiplied by the premium trend factor (PTF) (described in section III.E. of this final notice), which will reflect the projected change in the premium level between 2018 and 2019.

In general, the rate for each rate cell will be multiplied by the number of BHP enrollees in that cell (that is, the number of enrollees that meet the criteria for each rate cell) to calculate the total monthly BHP payment. This calculation is shown in Equation (3).

The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register .

In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. FEMA has determined that the community suspension(s) included in this rule is a non-discretionary action and therefore the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) does not apply.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR part 64 is amended as follows:

I. Background

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Pub. L. 114-74) (the “2015 Act”) amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410, 104 Stat. 890 (1990)), which is intended to improve the effectiveness of civil monetary penalties (CMPs) and to maintain the deterrent effect of such penalties, requires agencies to adjust the civil monetary penalties for inflation annually.

The Department of Health and Human Services (HHS) lists the civil monetary penalty authorities and the penalty amounts administered by all of its agencies in tabular form in 45 CFR 102.3, which was issued in an interim final rule published in the September 6, 2016 Federal Register (81 FR 61538). Annual adjustments were subsequently published on February 3, 2017 (82 FR 9175) and on October 11, 2018 (83 FR 51369).

The annual inflation adjustment for each applicable civil monetary penalty is determined using the percent increase in the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October of the year in which the amount of each civil penalty was most recently established or modified. In the December 14, 2018, Office of Management and Budget (OMB) Memorandum for the Heads of Executive Agencies and Departments, M-19-04, Implementation of the Penalty Inflation Adjustments for 2019, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, OMB published the multiplier for the required annual adjustment. The cost-of-living adjustment multiplier for 2019, based on the CPI-U for the month of October 2018, not seasonally adjusted, is 1.02522. The multiplier is applied to each applicable penalty amount that was updated and published for FY 2018 and is rounded to the nearest dollar.

Using the 2019 multiplier, HHS adjusted all its applicable monetary penalties in 45 CFR 102.3. In addition to the adjustment, a technical error for an incorrect citation in the description of 21 U.S.C. 333(f)(3)(A) was identified and is corrected below.

The 2015 Act requires federal agencies to publish annual penalty inflation adjustments notwithstanding section 553 of the Administrative Procedure Act (APA).

Section 4(a) of the 2015 Act directs federal agencies to publish annual adjustments no later than January 15th of each year thereafter. In accordance with section 553 of the APA, most rules are subject to notice and comment and are effective no earlier than 30 days after publication in the Federal Register . However, section 4(b)(2) of the 2015 Act provides that each agency shall make the annual inflation adjustments “notwithstanding section 553” of the APA. According to OMB's Memorandum M-19-04, the phrase “notwithstanding section 553” in section 4(b)(2) of the 2015 Act means that “the public procedure the APA generally requires ( i.e., notice, an opportunity for comment, and a delay in effective date) is not required for agencies to issue regulations implementing the annual adjustment.”

Consistent with the language of the 2015 Act and OMB's implementation guidance, this rule is not subject to notice and an opportunity for public comment and will be effective immediately upon publication.

Pursuant to OMB Memorandum M-19-04, HHS has determined that the annual inflation adjustment to the civil monetary penalties in its regulations does not trigger any requirements under procedural statutes and Executive Orders that govern rulemaking procedures.

This rule is effective November 5, 2019. The adjusted civil monetary penalty amounts apply to penalties assessed on or after November 5, 2019, if the violation occurred on or after November 2, 2015. If the violation occurred prior to November 2, 2015, or a penalty was assessed prior to September 6, 2016, the pre-adjustment civil penalty amounts in effect prior to September 6, 2016, will apply.

For reasons discussed in the preamble, the Department of Health and Human Services amends 45 CFR part 102 as follows:

This is a summary of the Commission's Order in WT Docket No. 17-79; DA 19-1024, adopted and released on October 8, 2019. The complete text of this document is available for download at http://fjallfoss.fcc.gov/edocs_public/. The complete text of this document is also available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW, Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to FCC504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

1. In United Keetoowah Band of Cherokee Indians v. FCC, No. 18-1129, 2019 WL 3756373 (D.C. Cir Aug. 9, 2019) ( United Keetoowah ), the U.S. Court of Appeals for the District of Columbia Circuit vacated those portions of the Commission's 2018 Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment ( Second Report and Order ), 83 FR 19440, May 3, 2018, that exempted certain small wireless facilities from federal environmental and historic preservation review. Pursuant to F.R. App. P. 41(b), the court issued its mandate on October 7, 2019. Consistent with the court's mandate, this Order repeals the section of the Commission's rules implementing the small wireless facilities exemption and deletes a cross-reference to that section contained elsewhere in the Commission's rules.

2. The Bureau finds that notice and comment are unnecessary for these rule amendments under 5 U.S.C. 553(b), because this ministerial order merely implements the mandate of the United States Court of Appeals for the District of Columbia Circuit, and the Commission lacks discretion to depart from this mandate.

3. Accordingly, It Is Ordered that § 1.1312(e)(2) of the Commission's rules, 47 CFR 1.1312(e)(2), Is Repealed and § 1.6002, 47 CFR 1.6002, is amended as set forth in Appendix A of the Order, effective December 5, 2019.

4. This action is taken pursuant to sections 4(i), 4(j), 5(c), 303, and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 155(c), 303 and 309(j) and § 0.331(d) of the Commission's rules, 47 CFR 0.331(d).

5. The Bureau has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs that these rules are major under the Congressional Review Act, 5 U.S.C. 804(2). The Bureau will send a copy of this Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A). The Bureau finds good cause to make this rule effective earlier than 60 days after the Order is submitted to Congress and the Government Accountability Office, pursuant to 5 U.S.C. 808(2), because this ministerial order merely implements the mandate of the United States Court of Appeals for the District of Columbia Circuit, and the Commission lacks discretion to depart from this mandate.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 as follows:

Electronic Access and Filing

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Part 614 of title 49, Code of Federal Regulations, cross-references the Management and Monitoring Systems regulation for the Federal Highway Administration (FHWA) at 23 CFR part 500. That part implements section 1034 of the Intermodal Surface Transportation Efficiency Act (Pub. L. 102-240) (ISTEA), which amended title 23, United States Code, by adding section 303 (Section 303). Section 303 required the Secretary of Transportation to promulgate regulations for State development, establishment, and implementation of systems for managing: Highway pavement of Federal-aid highways (PMS); bridges on and off Federal-aid highways (BMS); highway safety (SMS); traffic congestion (CMS); public transportation facilities and equipment (PTMS); intermodal transportation facilities and systems (IMS); and a system for monitoring highway and public transportation facilities and equipment (TMS). However, the National Highway System Designation Act of 1995 (NHS Act) amended section 303 to allow a State to elect not to implement, in whole or in part, any one or more of the management systems required under the section, except for CMS in transportation management areas (TMA), and removed the management system certification and sanction requirements. As a result, FTA and FHWA issued a final rule on December 19, 1996, 16 FR 67166-175, which reflected this State option and contained only minimum requirements for those systems that a State could choose to implement under the provisions of section 303.

Since the 1996 update to 23 CFR part 500, section 1519(b) of the Moving Ahead for Progress in the 21st Century (MAP-21) Act (Pub. L. 112-141) repealed section 303, which is the statutory basis for the regulation. Accordingly, FTA is issuing this final rule to rescind 49 CFR part 614, which cross-references 23 CFR part 500. This deregulatory action will not negatively impact safety, because congestion management, the only management system required under part 500, is still mandated by 23 CFR part 450.

This action rescinds 49 CFR part 614, which cross-references FHWA's Management and Monitoring Systems regulation at 23 CFR part 500, because the statutory basis for FHWA's regulation, 23 U.S.C. 303, was repealed by MAP-21. While 49 CFR part 614 cites 49 U.S.C. 5303-5305 as additional statutory authority, the requirements set forth in those statutes that overlap with the now-repealed 23 U.S.C. 303 are implemented through other FTA regulations. Of the four provisions of section 303 and 23 CFR part 500 that apply to FTA—IMS, CMS, PTMS, and TMS—only CMS is required explicitly by FTA statute, at 49 U.S.C. 5303(k)(3). Whereas 49 CFR 500.105 requires the metropolitan transportation planning process to include a CMS, the regulations at 23 CFR 450.322 (cross-referenced by 49 CFR part 613) also effectively implement the CMS requirement, which will continue to be imposed after this rule becomes effective.

Moreover, although not explicitly required by any FTA statute, current regulations cover management systems like IMS and PTMS. For example, the metropolitan and statewide planning processes require the integrated management and operation of the intermodal transportation system, similar to IMS, at 49 U.S.C. 5303(c)(2) and 5304(a)(2), and 49 CFR part 613 (cross-referencing 23 CFR part 450). Further, transit asset management incorporates much of the PTMS requirement at 49 U.S.C. 5326, and 49 CFR part 625. As a result, the requirements set forth in 49 CFR part 614 are either superfluous or duplicative.

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 1519(b) of MAP-21 repealed section 23 U.S.C. 303 to remove the requirement that states implement the management systems enumerated in 23 CFR part 500. Because 49 CFR part 614 cross-references this regulation, 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 management systems requirement was already 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 20.505, Metropolitan Transportation Planning and State and Non-Metropolitan Planning and Research, 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. FTA has determined that this action will not cause disproportionately high and adverse human health and environmental effects on minority or low-income populations.

Previous Federal Actions

On June 8, 2018, we published a proposed rule to remove Colorado butterfly plant from the List of Endangered and Threatened Plants ( i.e., to “delist” the species) (83 FR 26623). Please refer to that proposed rule for a detailed description of the Federal actions concerning this species that occurred prior to June 8, 2018.

Detailed information regarding the Colorado butterfly plant's biology and life history can be found in the biological report for Colorado butterfly plant (USFWS 2017a, pp. 6−7). The biological report is an in-depth but not exhaustive review of the species' biology and threats, an evaluation of its biological status, and an assessment of the resources and conditions needed to maintain long-term viability. The report includes analyses of the species' viability in terms of its resiliency, redundancy, and representation (USFWS 2017a, entire). Resiliency is the ability of the species to maintain healthy populations that can withstand annual environmental variation and stochastic events. Redundancy is the ability of the species to maintain an adequate number and distribution of populations that can withstand catastrophic events. Representation is the ability of the species to adapt to changing environmental conditions through genetic, ecological, demographic, and behavioral diversity across its range. We summarize relevant information from the biological report below.

The Colorado butterfly plant is a short-lived perennial herb that is monocarpic or semelparous, meaning that it flowers once, sets seed, and then dies. Flowering plants may, on rare occasions, flower a second year or become vegetative the year after flowering (Floyd 1995, pp. 10-15, 32). Pollinators for related species of Gaura and Colylophus (Onagraceae, tribe Onagreae) consist of noctuid moths ( Noctuidae ) and halictid bees ( Lasioglossum; Clinebell et al. 2004, p.378); both moths and bees have been identified visiting Colorado butterfly plant flowers during annual censusing (USFWS 2016b, entire). Additionally, one study found that the Colorado butterfly plant does not exhibit a bimodal (day and night) pollination system that is seen in other Gaura species, since the majority of pollination occurs at night by noctuid moths (Krakos et al. 2013, entire).

The Colorado butterfly plant is self-compatible (Floyd 1995, p. 4), meaning that plants produce flowers that are capable of forming viable seed from pollen from the same plant. There are no apparent adaptations for dispersal; many seeds fall to the ground around parent plants (Floyd and Ranker 1998, p. 854), and, because the seed floats, others may be dispersed downstream. Livestock and native ungulates could provide an important dispersal mechanism as well, through ingestion of the seeds (USFWS 2012, p. 27). Populations of this species show evidence of a seedbank, an adaptation that enables the species to take advantage of favorable growing seasons, particularly in flood-prone areas (Holzel and Otte 2004, p. 279).

The number of individuals in a population of Colorado butterfly plants appears to be influenced by rates of seedling establishment and survival of vegetative rosettes to reproductive maturity. These factors may be influenced by summer precipitation (Floyd and Ranker 1998, p. 858; Fertig 2000, p. 13). More recent evaluation suggests that the combination of cool and moist spring months is important in germination, and that germination levels influence the outcome of flowering plant population census in subsequent years. Additionally, summer conditions, and temperature in particular, appear to be an important mortality factor rather than influencing germination (Laursen and Heidel 2003, p. 6). Differences in soil moisture and vegetation cover may also influence recruitment success (Munk et al. 2002, p. 123).

The vegetative rosettes within a population may provide an important and particularly resilient stage of the life history of this species. Individual vegetative rosettes appear to be capable of surviving adverse stochastic events such as flooding (Mountain West Environmental Services 1985, pp. 2-3) and adverse climatic years when new seedling establishment is low. Therefore, episodic establishment of large seedling recruitment classes may be important for the long-term growth, replenishment, and survival of populations (Floyd and Ranker 1998, entire).

The Colorado butterfly plant, a member of the evening primrose family (Onagraceae), was listed as Gaura neomexicana ssp. c oloradensis in 2000 (65 FR 62302; October 18, 2000). Molecular studies by Hoggard et al. (2004, p. 143) and Levin et al. (2004, pp. 151-152) and subsequent revisions of the classification of the family Onagraceae transferred the taxon previously known as Gaura neomexicana Wooton to Oenothera as Oenothera coloradensis ssp. neomexicana (Wooton) W.L. Wagner & Hoch (Wagner et al. 2007, p. 211). More recent analyses showed that there are no infraspecific entities (any taxa below the rank of species) within the taxon; the listed entity is now recognized as Oenothera coloradensis (Wagner et al. 2013, p. 67). A more detailed assessment of the taxonomy of the Colorado butterfly plant is available in the species biological report (USFWS 2017a, pp. 4—6). The taxonomic and nomenclatural changes do not alter the description, range, or threat status of the listed entity. Throughout this final rule, we will use the current scientific name and rank, Oenothera coloradensis, for the Colorado butterfly plant.

The Colorado butterfly plant is a regional endemic riparian species known from 34 12-digit hydrologic unit code (HUC) watersheds (28 extant and 6 extirpated), found from Boulder, Douglas, Larimer, and Weld Counties in Colorado; Laramie and Platte Counties in Wyoming; and western Kimball County in Nebraska (see the figure, below). Prior to 1984, few extensive searches for the plant had been conducted, and data taken from herbarium specimens were the primary basis of understanding the extent of the species' historical distribution. At that time, the plant was known from a few historical and presumably extirpated locations in southeastern Wyoming and several locations in northern Colorado, as well as from three extant occurrences in Laramie County in Wyoming and Weld County in Colorado. Prior to listing, extensive surveys were conducted in 1998, to document the status of the known occurrences, and all still contained Colorado butterfly plants (Fertig 1998a, entire).

The Colorado butterfly plant occurs on subirrigated (water reaches plant root zone from below the soil surface), alluvial soils derived from conglomerates, sandstones, and tuffaceous (light, porous rock formed by consolidation of volcanic ash) mudstones and siltstones of the Tertiary White River, Arikaree, and Oglalla Formations (Love and Christiansen 1985 in Fertig 2000, p. 6) on level or slightly sloping floodplains and drainage bottoms at elevations of 1,524-1,951 meters (m) (5,000-6,400 feet (ft)). Populations are typically found in habitats created and maintained by streams active within their floodplains, with vegetation that is relatively open and not overly dense or overgrown (65 FR 62302; October 18, 2000). Populations occur in a range of ecological settings, including streamside, outside of the stream channel but within the floodplain, and spring-fed wet meadows. The plant is often found in, but not restricted to, early- to mid-succession riparian habitat. Historically, flooding was probably the main cause of disturbances in the plant's habitat, although wildfire and grazing by native herbivores also may have been important. Although flowering and fruiting stems may exhibit increased dieback because of these events, vegetative rosettes appear to be little affected (Mountain West Environmental Services 1985, pp. 2-3). It commonly occurs in communities dominated by nonnative and disturbance-tolerant native species, including creeping bentgrass ( Agrostis stolonifera ), Kentucky bluegrass ( Poa pratensis ), American licorice ( Glycyrrhiza lepidota ), Flodman's thistle ( Cirsium flodmanii ), curlytop gumweed ( Grindelia squarrosa ), and smooth scouring rush ( Equisetum laevigatum ). Its habitat on Warren Air Force Base (AFB) includes wet meadow zones dominated by switchgrass ( Panicum virgatum ), mat muhly ( Muhlenbergia richardsonis ), little bluestem ( Schizachyrium scoparium ), prairie cordgrass ( Spartina pectinata ), and other native grasses. All of these habitat types are usually intermediate in moisture, ranging from wet, streamside communities dominated by sedges, rushes, and cattails to dry, upland prairie habitats (Fertig 1998a, pp. 2-4).

Typically, Colorado butterfly plant habitat is open, without dense or woody vegetation. The establishment and survival of seedlings appears to be enhanced at sites where tall and dense vegetation has been removed by some form of disturbance. In the absence of occasional disturbance, the plant's habitat can become choked by dense growth of willows, grasses, and exotic plants (Fertig 1996, p. 12). This prevents new seedlings from becoming established and replacing plants that have died (Fertig 1996, pp. 12-14).

For the purposes of this analysis, we consider all occurrences of the Colorado butterfly plant within the same 12-digit HUC watershed to be one population. Populations defined this way typically consist of numerous subpopulations, each with dozens to hundreds of flowering stems and rosettes. These subpopulations are often widely scattered, which contributes to this species' resiliency and redundancy. There are no data ( e.g., genetic relatedness) available to more precisely define populations, and although distance of 1 kilometer (km) (0.6 miles (mi)) or greater may exceed the distance traveled by pollinators, it is possible that seeds may disperse over much greater distances (Heidel 2016, pers. comm.). Therefore, because these gaps are probably too small to prevent the dispersal of pollinators and/or seeds between subpopulations, colonies along the same stream reach (12-digit HUC) should be considered part of the same population. This approach to grouping populations varies from the characterization of populations in both the listing decision (65 FR 62302; October 18, 2000) and critical habitat designation (70 FR 1940; January 11, 2005), where populations were defined by landowner and/or proximity within a drainage. We find organizing populations based on 12-digit HUCs to more accurately describe components of population ecology (genetic exchange within a geographic area), and stressors affecting the species tend to vary by watershed. Because of this new organization of population structure, some populations considered distinct and separate during the 2000 listing decision are now combined and vice versa, although many populations are the same in this final rule as they were presented in the 2000 listing rule.

The Colorado butterfly plant occurred historically and persists in various ecological settings described above under Habitat Description, including wet meadows, stream channels, stream floodplains, and spring-fed wetlands. A detailed summary of the status of the species between 1979 and 2016 is provided in the species' biological report (USFWS 2017a, pp. 13-22).

In 1998 and 1999, in preparation for our listing determination for the species, the rangewide census of flowering individuals was estimated at 47,300 to 50,300, with the majority of these occurring in Wyoming (Fertig 1998a, p. 5; Fertig 2000, pp. 8-13). However, a population was discovered in Colorado in 2005 that had a peak census of 26,000 plants in 2011, bringing the total rangewide population to approximately 73,300 to 76,300 plants over time. In 2016, another population was discovered in a different 12-digit HUC upstream of known populations on Horse Creek in Laramie County, Wyoming, with only 17 individuals, although the area had just been hayed and was likely an incomplete representation of the total number of plants in this population (USFWS 2016b, entire). Discovery of new populations suggests this species is faring better than presumed at the time of listing.

Average numbers may be a more appropriate way to represent populations than the minimum and maximum values, although all provide insight into the population's resiliency, or the ability to withstand stochastic events. The number of reproductive individuals in a population is somewhat driven by environmental factors and is shown to vary considerably, so understanding the variability in the number of individuals present in any given year is meaningful in assessing population resiliency. Population numbers have fluctuated five-fold over the course of the longest-running monitoring study (28 years) conducted on Warren AFB. There, the population peaked at over 11,000 flowering plants in 1999 and 2011, making it one of the largest populations rangewide, and then dropped to 1,916 plants in 2008 (Heidel et al. 2016, p. 1). The Warren AFB population numbers provide some indication of how population numbers can vary in landscapes not managed for agricultural purposes, and it is likely that numbers vary even more dramatically on managed landscapes. If this fluctuation was applied to the rangewide population estimates above, then total rangewide numbers for average years might be less than 50 percent of rangewide estimates in favorable years (Handwerk 2016, pers. comm.; Heidel 2016, pers. comm.).

The final listing rule (65 FR 62302; October 18, 2000) defined large populations as those containing more than 3,000 reproductive individuals, moderate containing 500 to 2,500 reproductive individuals, and small having fewer than 200 reproductive individuals (no populations contained 200 to 500 plants or 2,500 to 3,000 plants), and so characterized the species as being represented by 10 large stable or increasing populations, 4 moderate extant but declining populations, 3 likely small populations, and 9 likely extirpated populations. However, after monitoring roughly half the known populations annually for the past 14 years, we understand that population size can fluctuate significantly from year to year; therefore, population size in any given year is not a good indicator of resiliency. Individual populations exhibit substantial stochasticity, with localized extirpation and recolonization based on disturbances. Therefore, our estimates of resiliency are now based on averages of population censuses over multiple years and trends of populations in response to management and stressors. Resiliency is based on the average number of reproductive individuals within the survey area (generally having more than 100 reproductive individuals most years indicates high resiliency, between 50 and 100 is moderate, and under 50 is low), trends in population numbers where available, and response to stochastic events. Based on this, we now have 15 high resiliency populations, 2 moderate resiliency populations, 6 low resiliency populations, 2 populations with unknown resiliency, and records of 6 extirpated populations. Additionally, there are three introduced populations that do not contribute to recovery and were not assessed for resiliency, representation, or redundancy.

The Colorado butterfly plant is known to occur in Adams, Boulder, Douglas, Jefferson, Larimer, and Weld Counties in northern Colorado, spanning 12 12-digit HUC watersheds (see figure above). Six historical occurrences have not been documented since 1984, and are presumed extirpated.

The majority of Colorado butterfly plants in Colorado are located on lands managed by the City of Fort Collins Natural Areas Department (CFCNAD) in Weld and Larimer Counties. The plants are distributed among three distinct habitats on either side of Interstate 25 and have numbered between 3 to more than 26,000 reproductive individuals. These areas are being managed to maintain suitable habitat for the species (CFCNAD 2008, p. 1; CFCNAD 2010, p. 1; CFCNAD 2011a, entire; CFCNAD 2011b, entire; CFCNAD 2014, entire). Annual census information on flowering individuals at the Meadow Springs Ranch in Weld County indicates that the large fluctuations in population numbers are actually around a stable mean (744 flowering plant average, median of 140, range of 45-2,719 flowering plants). Other populations in Colorado have not been routinely monitored; consequently, no trend information is available (USFWS 2016b, entire). In summary, the species is represented in Colorado by two high resiliency populations that contribute to species redundancy and three low resiliency populations with minimal contribution to species redundancy.

Populations of the Colorado butterfly plant in Nebraska are considered at the edge of the species' range (65 FR 62302, October 18, 2000). In 1985, monitoring along Lodgepole Creek in extreme eastern Wyoming and Kimball County, Nebraska, found 2,065 individual plants in six subpopulations. Surveys conducted in 1985, along Lodgepole Creek near the Nebraska/Wyoming border in Kimball County, found just over 2,000 flowering plants (Rabbe 2016, pers. comm). A later survey in 1992 found two populations of Colorado butterfly plant: one population (547 plants) along Lodgepole Creek and one population (43 plants) at Oliver Reservoir State Recreation Area (SRA) in the southwest panhandle of Nebraska in Kimball County west of the city of Kimball, Nebraska (Fertig 2000a, p. 12). Survey results from 2004 suggested the species was extirpated from the State (Fritz 2004, pers. comm.). However, a 2008 survey within three 12-digit HUC watersheds, along 13 km (8 mi) of historically occupied habitat and the Oliver Reservoir SRA, located 12 plants in four locations on private lands along Lodgepole Creek: 5 plants in areas where the species had been located before and 7 plants in areas newly watered by a landowner piping water into Lodgepole Creek from a cattle stock tank. No plants were found at the Oliver Reservoir SRA (Wooten 2008, p. 4). These areas have not been surveyed since 2008. Outside of these occurrences, no other populations of the species are known to occur in Nebraska (Rabbe 2016, pers. comm.). In summary, due to the low abundance, dewatering, over-grazing, and poor habitat quality, the species is represented in Nebraska by three populations with low resiliency that provide minimal contribution to species redundancy.

Extant populations of Colorado butterfly plant in Wyoming occur throughout most of Laramie County and extend northward into Platte County (USFWS 2012, pp. 11-21), spanning 17 12-digit HUC watersheds. Over 90 percent of known occurrences in Wyoming are on private lands, with parts of two occurrences on State school trust lands, all of a third occurrence on State lands, and one occurrence on Federal lands. Populations in Wyoming that are found partly or fully on State school trust lands are managed for agricultural uses.

The population on Federal lands occurs on Warren AFB located adjacent to Cheyenne provides information on species trends as it may have occurred prior to human settlement of the area (with wild grazers and natural streamflow), and represents the level of hydrological complexity of three different sizes of streams. The highest census numbers at Warren AFB totaled over 11,000 plants in 1998 and 2011, and the mean census numbers for all other years have remained at or above 50 percent of that peak, based on 1988-2016 numbers (Heidel et al. 2016, pp. 11-14). In terms of genetic representation, a study conducted on Colorado butterfly plants occupying three drainages at Warren AFB found that one of the drainages was genetically unique and more diverse than the other two drainages (Floyd 1995, pp. 73-81), but that overall population-level genetic diversity was low. Another study at Warren AFB found that plants in one of the drainages contained unique alleles, sharing genetic composition with only a small number of individuals from the second and no individuals of the third drainage, indicating fine-scale genetic variability within that portion of the species' range (Tuthill and Brown 2003, p. 251). Assuming similar genetic structure across the species' range, this suggests a high degree of genetic representation at the species level. This genetic information, however, does not provide sufficient strength in terms of sample size in discerning populations from each other.

Since 2004, the Service has had agreements with 11 private landowners within six 12-digit HUC watersheds in Laramie County, Wyoming, and one watershed in Weld County, Colorado (described in detail under Conservation Efforts, below), to conduct annual monitoring of the Colorado butterfly plant. We also provide management recommendations to help landowners maintain habitat for the species. Many of the landowners graze cattle or horses where the species occurs; others use the areas for haying operations. For example, one population was heavily grazed for over a decade, leading to counts of fewer than 30 reproductive individuals for several years, but when the grazing pressure was relieved, the population rebounded within 1 year to more than 600 reproductive individuals (USFWS 2016b, entire). This outcome may indicate that either a robust seedbank was present or vegetative rosettes avoided the intense grazing pressure and bolted after grazing diminished. The total number of plants counted in Wyoming under these agreements between 2004 and 2018 has varied from approximately 1,000 to over 21,000 reproductive individuals. Combining annual census numbers from all monitored populations in Wyoming, we have observed small to extreme population fluctuations, and some populations jumped from having few or no flowering plants in one year to having hundreds or even thousands the following year (USFWS 2012, pp. 11-21; USFWS 2016, entire). Wyoming is represented by 13 highly resilient populations that contribute to species redundancy, 2 moderately resilient populations that contribute to species redundancy, and 2 populations with unknown resiliency and redundancy due to lack of information.

The listing decision (65 FR 62302, October 18, 2000, p. 62308) stated that “[i]n order for a population to sustain itself, there must be enough reproducing individuals and sufficient habitat to ensure survival of the population. It is not known if the scattered populations [of the Colorado butterfly plant] contain sufficient individuals and diversity to ensure their continued existence over the long term.” Today, we understand that, regarding ecological representation, the species is characterized by having at least one population within each ecological setting and within all but the southern-most portions of the historical range. Furthermore, most populations contain individuals in more than one ecological setting, such as individuals along the creek bank and individuals outside of the creek bank and in the floodplain of the creek. The Service has not typically measured the acreage of suitable habitat at each population for a number of reasons, namely because we found the number of individuals at the site to be more informative of the population's status and because of the wide variation in habitat types occupied by the species.

The Service has worked with partners to protect existing populations. Much of this work has been accomplished through voluntary cooperative agreements. For example, beginning in 2004, the Service has entered into 11 wildlife extension agreements (WEAs) with private landowners, representing six of the 12-digit HUCs, to manage riparian habitat for Colorado butterfly plant (70 FR 1940; January 11, 2005). These 15-year WEAs cover a total of 1,038 hectares (ha) (2,564 acres (ac)) of the species' habitat along 59 km (37 mi) of stream. These agreements represent approximately one-third of the known populations of Colorado butterfly plant in Wyoming and Colorado, including some of the largest populations on private lands. All of the landowners have agreed to the following:

(1) Allow Service representatives or their designee access to the property for monitoring or fence installation;

(2) Coordinate hay cutting activities in areas managed primarily for hay production to consider the Colorado butterfly plant's seed production needs;

(3) Prevent application of herbicides closer than 30.5 m (100 ft) from known subpopulations of the Colorado butterfly plant; and

(4) Manage livestock grazing activities in conjunction with conservation needs of the Colorado butterfly plant.

One of the landowners signed a 10-year agreement instead of a 15-year agreement that was renewed for an additional 10 years in 2015. The remaining agreements expire in late 2019. All landowners whose properties will be included in the post-delisting monitoring program when this final rule goes into effect (see DATES , above) are amenable to creating new agreements—once the existing agreements expire this year—that will last the duration of the post-delisting monitoring.

One of the benefits of the WEAs for both the Service and private landowners is that we can review the population numbers annually and together develop management recommendations to improve growing conditions for the species. Populations occurring within designated critical habitat (see figure, above) have not been surveyed since the critical habitat determination surveying in 2004, and their trends, threats, and viabilities are uncertain. However, the Wyoming Ecological Services Field Office has not consulted under the Act with private landowners managing these parcels on any projects that may adversely affect the critical habitat for this species. Additionally, we reviewed aerial imagery of the critical habitat units and found only two minimal changes between 2004 and 2015 (reflecting habitat conditions at the time of designation and the most recent aerial imagery available) throughout all critical habitat units; these changes affect only a few acres of designated critical habitat (USFWS 2017b, entire). Consequently, we determine that activities occurring on critical habitat are likely the same as they were at the time of designation. Furthermore, because many of the private lands included in the critical habitat designation are adjacent to lands under WEAs, we determine that the populations occurring within designated critical habitat are likely stable, and fluctuating similarly to populations on lands that we monitor under WEAs. We have no reason to believe that populations occurring on designated critical habitat are responding to stressors differently than those populations we monitor. Therefore, populations throughout the species' range on private, local, and Federal lands either have been observed to be, or are highly likely to be, fluctuating around a stable population size.

The Service and the U.S. Air Force signed a memorandum of agreement (MOA) on January 18, 1982 (updated in 1999 with the pending listing decision, and updated in 2004 with the pending critical habitat decision), to facilitate the preservation, conservation, and management of the Colorado butterfly plant (USFWS 1982, entire; USFWS 1999, entire; USFWS 2004, entire). In 2004, Warren AFB included a conservation and management plan for the species in its integrated natural resources management plan (CNHP 2004, entire). Through these plans, the Service partners with the U.S. Air Force and Wyoming Natural Diversity Database to monitor and protect the population of the Colorado butterfly plant on the Warren AFB. Conservation actions include annual monitoring; nonnative, invasive species control and eradication; and maintenance of appropriate floodplain characteristics for the species. Based on 29 years of monitoring and management, the population of the Colorado butterfly plant on the Warren AFB is doing well, with some areas declining while others are increasing (Heidel et al. 2016, entire).

Three populations in Larimer and Weld Counties, Colorado, occur on properties owned by the City of Fort Collins, and two are among the largest across the species' range. The City of Fort Collins developed a 10-year master plan for the Natural Areas Department in 2014, which provides a framework for the conservation and preservation of natural areas, including the populations of the Colorado butterfly plant. The master plan prescribes conservation actions that allow for the persistence of the Colorado butterfly plant on the landscape (CFCNAD 2016a, entire), including prescribed burns to eliminate competition, managed grazing to maintain early successional habitat, and improved security of water flow to the species' habitat to ensure the necessary subirrigation is available for populations of Colorado butterfly plant.

Populations of Colorado butterfly plant are not known to occur on lands managed by the Bureau of Land Management (BLM) at this time, although there is potential for populations to be discovered on BLM lands in the future. Because of this possibility, the Service and BLM in Wyoming have developed conservation measures under a Statewide programmatic consultation under section 7 of the Act for the Colorado butterfly plant. These conservation measures are incorporated into BLM's 2008 Record of Decision and Approved Rawlins Resource Management Plan (RMP; BLM 2008, entire) and include, but are not limited to: (1) Buffering individuals and populations by 800 m (0.5 mi); (2) implementing standards for healthy rangelands and guidelines for livestock grazing management for the public lands administered by BLM in the State of Wyoming; (3) limiting the number of grazing animals within the permit area; and (4) protecting surface water through prohibiting surface development in the following areas: within 400 m (0.25 mi) of the North Platte River; within 152 m (500 ft) of live streams, lakes, reservoirs, and canals and associated riparian habitat; and within 152 m (500 ft) of water wells, springs, or artesian and flowing wells (BLM 2005, pp. 4-2 through 4-4). The newly discovered population on Wild Horse Creek (WY-23) occurs within the agreement area that BLM developed with the landowners, and so the conservation measures included in the Rawlins RMP are applied to this population.

In summary, these agreements and plans have provided useful data, facilitated good management of nine of the largest and most resilient populations, and resulted in stable or increasing population trends. Because of the information we obtained through these agreements and plans, we are able to understand the resiliency of individual plants and populations, the representation of the species within its ecological settings, and the redundancy of the plant population numbers and potential for connectivity.

We have made updates to our discussions of the species' population status (including 2018 information) and factors affecting the species, based on comments submitted by the public and information provided to us by peer reviewers, as discussed later in this final rule.

Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (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.

Determining whether the status of a species has improved to the point that it can be downlisted ( i.e., reclassified from endangered to threatened) or delisted requires consideration of whether the species is an endangered species or threatened species because of the same five categories of threats specified in section 4(a)(1) of the Act. For species that are already listed as endangered species or threatened species, this analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting and the removal or reduction of the Act's protections.

A species is an “endangered species” for purposes of the Act if it is in danger of extinction throughout all or a significant portion of its range and is a “threatened species” if it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The word “range” in the significant portion of its range phrase refers to the range in which the species currently exists, and the word “significant” refers to the value of that portion of the range being considered to the conservation of the species. We consider “foreseeable future” as that period of time within which a reliable prediction can be reasonably relied upon in making a determination about the future conservation status of a species (DOI Solicitor M-37021; January 16, 2009). We consider 15 to 20 years to be a reasonable period of time within which reliable predictions can be made for the Colorado butterfly plant. This time period includes at least five generations of the species, coincides with management timeframes in renewed WEAs, and aligns with the timeframes for predictions regarding municipal development and growth in the area. For the purposes of this analysis, we first evaluate the status of the species throughout all of its range, then consider whether the species is in danger of extinction or likely to become so in any significant portion of its range.

In considering what factors might constitute threats, we must look beyond the exposure of the species to a particular factor to evaluate whether the species may respond to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure to a factor and the species responds negatively, the factor may be a threat, and we attempt to determine how significant a threat it is. If the threat is significant it may drive, or contribute to, the risk of extinction of the species such that the species warrants listing as an endangered species or a threatened species as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively is not sufficient to compel a finding that listing is appropriate; we require evidence that these factors individually or cumulatively are operative threats that act on the species to the point that the species meets the definition of an endangered species or threatened species under the Act.

The Colorado butterfly plant is federally listed as threatened. Below, we present a summary of threats affecting the species and its habitats in the past, present, and predicted into the future. A detailed evaluation of factors affecting the species at the time of listing can be found in the listing determination (65 FR 62302; October 18, 2000) and designation of critical habitat (70 FR 1940; January 11, 2005). An evaluation of factors affecting the species after 2005 can be found in the 2012 5-year review (USFWS 2012, entire). The primary threats to the species identified at the time of listing include overgrazing by cattle or horses, haying or mowing at times of the year incompatible with Colorado butterfly plant reproduction, habitat degradation resulting from vegetation succession or urbanization of the habitat, habitat conversion to cropland or subdivision, water development, herbicide spraying, and competition with exotic plants (65 FR 62302; October 18, 2000). Since the time of listing, oil and gas development and climate change have become potential threats to this species and are analyzed under Factor A and Factor E, respectively, below. The 2012 5-year review evaluated all potential threats to this species and found that all threats presented at a low overall level to the species (USFWS 2012, Appendix A) and that the species had a high recovery potential (USFWS 2012, p. 39). In 2016, a revised 5-year review did not recommend delisting, but recommended a formal evaluation of whether the species needed to remain listed (USFWS 2016, p. 40). As a result, we completed a biological report the following year, which concluded that the species had moderate to high viability based on its resiliency, redundancy, and representation (USFWS 2017a, p. 33).

At the time of listing (65 FR 62302; October 18, 2000), residential and urban development around the cities of Cheyenne and Fort Collins were identified as past causes of habitat conversion and habitat loss to the Colorado butterfly plant; these types of development were not a concern in Nebraska at the time of listing nor are they now. Although difficult to quantify because land conversion was not tracked during the settlement of the West, likely a few hundred acres of formerly suitable habitat were converted to residential and urban sites, contributing to loss of habitat (Fertig 1994, p. 38; Fertig 2000a, pp. 16-17). Much of the species' range occurs along the northern Front Range of the Rocky Mountains in Colorado and Wyoming, which has experienced dramatic growth in the recent past and is predicted to grow considerably in the future (Regional Plan Association 2016, entire), particularly in Larimer and Weld Counties in Colorado (University of Colorado Boulder 2016, pp. 119-120). The demand that urban development places on water resources also has the ability to dewater the streams and lower groundwater levels required by the species to maintain self-sustaining populations, and is explored below.

The two large populations of the Colorado butterfly plant in Larimer and Weld Counties, Colorado, occur on lands managed as open space by CFCNAD, and are not directly subject to residential or urban development. Consequently, despite projected increases in human density and urban development along the northern Front Range, these lands are managed to allow for the persistence of these populations, with managed grazing or burning (CFCNAD 2016b, entire). CFCNAD does not own all mineral rights on these lands; therefore, sensitive areas within these boundaries may be impacted by mineral development. However, in light of this potential threat, CFCNAD completed a planning process in which they highlighted areas to be avoided by mineral development (The Nature Conservancy 2013, entire). While oil and gas development has increased in northern Colorado and southeastern Wyoming since the time of listing, no oil or gas wells have been proposed or likely will be proposed in areas that will directly or indirectly impact populations of the Colorado butterfly plant in Colorado or in Wyoming, particularly due to the species' occurrence in riparian and wetland habitats. Because the plant occurs in riparian and wetland habitats that routinely flood, it is likely that oil and gas wells will be sited outside of population boundaries. While there is potential for indirect effects through spills or sedimentation, we have no specific information about those effects on the species to date.

According to publicly available information, there are no current proposals for urban or residential development on lands containing populations of Colorado butterfly plant in Wyoming. Monitoring of lands under agreement (CFCNAD, WEAs, and Warren AFB) has also shown that neither urbanization nor conversion to intensive agricultural activities has occurred as predicted in the final listing rule (65 FR 62302, October 18, 2000; USFWS 2012, pp. 11-22; USFWS 2016b, entire). Monitoring data over the past 29 years at WAFB have shown that populations remain stable without being managed for agricultural purposes, although numbers of reproductive individuals fluctuate during any given year (Heidel et al. 2016, pp. 14-18). Since the time of listing, the Service has received few requests for consultation under section 7 of the Act for projects that may adversely affect this species. Informal consultations have been limited to grazing, power lines, pipelines, road development, and drainage crossing projects, and avoidance and minimization of potential impacts has been readily achieved (USFWS 2017c, entire).

Furthermore, chapters 3 and 4 of the Laramie County Land Use Regulations address floodplain management and require specific provisions and permits for construction within floodplains (Laramie County 2011, pp. 165-185), which encompass all Colorado butterfly plant habitat within the county; therefore, these regulations extend some level of protection to the species and its habitat. These regulations are in place to “promote public health, safety, and general welfare and to minimize public and private losses due to flood conditions” (Laramie County 2011, p. 165), and are a common-sense approach to protecting many resources, including the Colorado butterfly plant and its habitat, by limiting development in the floodplains. These regulations are discussed in detail under Factor D, below.

The threats of residential and urban development, once considered significant threats to the Colorado butterfly plant, have been largely avoided because most development has occurred outside of the habitat in which this species occurs. Annual monitoring conducted by the Service since 2004 indicates that populations are stable and unaffected by any development that has occurred within the species' range. While human population growth and development are predicted for the Front Range of the Rocky Mountains in Colorado into the future, these areas are outside of the species' occupied habitat, and we do not anticipate development in the protected areas under management of CFCNAD, and do not anticipate development due to continued restrictions against development within the floodplain. Additionally, increases in oil and gas development in northern Colorado and southeastern Wyoming have not directly or indirectly impacted populations of the Colorado butterfly plant and are not likely to do so in the future. Current ownership and management by CFCNAD and Warren AFB of lands containing a majority of large populations of the Colorado butterfly plant protect the species from current and future impacts due to residential, urban, and energy development.

At the time of listing (65 FR 62302; October 18, 2000), conversion of grassland to farmlands, mowing grasslands, and grazing were considered threats to the Colorado butterfly plant. Prior to listing, the conversion of moist, native grasslands to commercial croplands was widespread throughout much of southeastern Wyoming and northeastern Colorado (Compton and Hugie 1993, p. 22), as well as in Nebraska. However, conversion from native grassland to cropland has slowed throughout the species' range since the time of listing, with no lands converted in Laramie County and just 12 ha (30 ac) converted in Platte County between 2011 and 2012 (FSA 2013, entire).

Mowing for hay production was identified as a threat at the time of listing, if conducted at sensitive times of year for Colorado butterfly plant (prior to seed maturation) (Fertig 1994, p. 40; USFWS 1997, p. 8). However, monitoring by the Service over the past 13 years indicates that mowing prior to seed maturation occurs infrequently. Even in areas where early season mowing has occurred, annual monitoring has shown high numbers of reproductive plants present in subsequent years, suggesting that mowing for hay production is not a threat to the species (USFWS 2016b, entire).

The agricultural practices of grazing and herbicide application threatened the Colorado butterfly plant at the time of listing. However, since then, the Service has made and continues to make recommendations to cooperating landowners on agricultural management that fosters resiliency in populations of the species. We determined that these measures have decreased the severity of these stressors. We also anticipate that landowners will continue their current agricultural practices into the future, based on the data we have collected from WEAs (USFWS 2016b, entire) and analysis of aerial imagery of designated critical habitat (USFWS 2017b, entire). Through these agreements, we also learned that the species is highly adapted to withstand stochastic events. Therefore, we do not rely on the implementation of the WEAs to ensure that the species remains highly resilient because the WEAs simply provided a mechanism for the Service to gain information to better understand its viability. Because of this information regarding resiliency, redundancy, and representation, we believe the plant will continue to thrive when the species is delisted and the protections of the Act are removed. Grazing is further explored under Factor C, below, and herbicide spraying is further explored under Factor E, below.

At the time of listing (65 FR 62302; October 18, 2000), water management (actions that move water to croplands, such as irrigation canals, diversions, and center pivot irrigation development) was considered a threat that would remove moisture from Colorado butterfly plant habitat. The management of water resources for livestock production and domestic and commercial human consumption, coupled with increasing conversion of lands for agricultural production, often led to channelization and isolation of water resources; changes in seasonality of flow; and fragmentation, realignment, and reduction of riparian and moist lowland habitat (Compton and Hugie 1993, p. 22). All of these actions could negatively impact suitable habitat for the species.

Dewatering portions of Lodgepole Creek in Kimball County, Nebraska, has led to the extirpation of some of the species' known historical populations there, and low likelihood of long-term resiliency for the two extant populations last monitored in 2008 (Rabbe 2016, pers. comm.). Extant populations in Nebraska continue to be threatened by dewatering and overgrazing on private land. However, when water was reintroduced to formerly occupied habitat after being absent for more than 10 years, a population was rediscovered (Wooten 2008, p. 4). While rediscovery of this population indicates persistence of a viable seedbank for at least 10 years, numbers of plants within the population declined from over 600 plants (Fertig 2000a, p. 12) to 12 plants (Wooten 2008, p. 4), and the application of water that allowed plants to grow was temporary, which suggests the population has a low likelihood of long-term resiliency.

In 2015, the Colorado Water Conservation Board on behalf of CFCNAD filed an instream flow right on Graves Creek, the stream that feeds the population of Colorado butterfly plants in Soapstone Prairie (CFCNAD 2016b, entire). This instream flow right was appropriated on January 26, 2015, and allows for 0.17 cubic feet per second, year-round, which will protect and maintain subirrigation of this large and important population for CFCNAD through ensuring adequate water availability to the species throughout the year.

The entire range of the Colorado butterfly plant occurs within the Platte River Basin. Water usage in the Platte River system is managed collaboratively by the States of Colorado, Wyoming, and Nebraska, and the Department of the Interior, through the Platte River Recovery Implementation Program (PRRIP; PRRIP 2019). The PRRIP, which has been in existence since 1997, provides a mechanism for existing and new water users and water-development activities in the Platte River Basin to operate in regulatory compliance with the Act regarding potential impacts to the five Platte River “target species” in Nebraska: whooping crane ( Grus americana ), interior least tern ( Sterna ( Sternula ) antillarum ), northern Great Plains population of piping plover ( Charadrius melodus ), pallid sturgeon ( Scaphirhynchus albus ), and western prairie fringed orchid ( Platanthera praeclara ). Because the PRRIP ensures that shortages to the target flows in the central Platte River will be substantially reduced by keeping water within the basin more consistently throughout the year, the hydrological component of habitat for the Colorado butterfly plant will be maintained at higher and more consistent levels than it was prior to the listing of the Colorado butterfly plant. The PRRIP also has an adaptive management plan to improve management decisions based on information learned. The implementation of the PRRIP ensures that more water will stay within the Platte River Basin and be available for populations of the Colorado butterfly plant.

In summary, water management can directly and indirectly impact the Colorado butterfly plant. While management of water resources has negatively impacted the species on a localized scale in the past, there is no indication that water management throughout the majority of the species' range poses a current threat to the species. Programs and policies currently in place, such as the PRRIP and Graves Creek instream flow right, provide substantial assurances that the hydrological component of currently occupied habitat will remain secure and available to populations of Colorado butterfly plant over the long term.

In the absence of periodic disturbance, natural succession of the plant community in areas occupied by the Colorado butterfly plant moves from open habitats to dense coverage of grasses and forbs, and then to willows and other woody species. The semi-open habitats preferred by this species can become choked by tall and dense growth of willows; grasses; and nonnative, invasive species (Fertig 1994, p. 19; Fertig 2000a, p. 17). Natural disturbances such as flooding, fire, and native ungulate grazing were sufficient in the past to create favorable habitat conditions for the species. However, the natural flooding regime within the species' floodplain habitat has been altered by construction of flood control structures and by irrigation and channelization practices (Compton and Hugie 1993, p. 23; Fertig 1994, pp. 39-40). Consequently, the species relies on an altered flood regime and other sources of disturbance to maintain its habitat.

In the absence of natural disturbances today, managed disturbance may be necessary to maintain and create areas of suitable habitat (Fertig 1994, p. 22; Fertig 1996, pp. 12-14; Fertig 2000a, p. 15). However, monitoring of the population at Warren AFB indicates that populations can persist without natural disturbances such as fire and flooding through natural dieback of woody vegetation and native ungulate grazing (Heidel et al. 2016, pp. 2-5). Additionally, some Federal programs, such as those administered by the U.S. Department of Agriculture's Natural Resources Conservation Service, focus on enhancing or protecting riparian areas by increasing vegetation cover and pushing the habitat into later successional stages, which removes the types of disturbance the Colorado butterfly plant needs (65 FR 62302; October 18, 2000, p. 62307). However, these programs are implemented in only a small portion of the species' range. The Service learned from monitoring the 11 WEA properties that the typical approach of managing for livestock grazing, coupled with an altered flood regime, appears to provide the correct timing and intensity of disturbance to maintain suitable habitat for the species (USFWS 2012, pp. 9-21; USFWS 2016b, entire). There has been no noticeable change in general management practices ( e.g., mowing and grazing) or change in the natural succession rate in either the WEA properties or the designated critical habitat since the agreements were signed or the critical habitat was designated, and we have no reason to believe that these management practices or natural succession rates will change in the foreseeable future. Therefore, through the information we have gathered since the time of listing, it appears that natural succession is not occurring at the level previously considered to threaten this species.

The final listing rule (65 FR 62302; October 18, 2000) included competition with exotic plants and noxious weeds as a threat to the Colorado butterfly plant. Competition with exotic plants and noxious weeds, here referred to as nonnative, invasive species, may pose a threat to the Colorado butterfly plant, particularly given the species' adaptation to more open habitats. In areas of suitable habitat for Colorado butterfly plant, the following plants may become dominant: The native coyote willow ( Salix exigua ); nonnative, invasive Canada thistle ( Cirsium arvense ); and nonnative, invasive leafy spurge ( Euphorbia esula ). Willow, in particular, increases in the absence of grazing or mowing. These species can outcompete and displace the Colorado butterfly plant, presumably until another disturbance removes competing vegetation and creates openings for Colorado butterfly plant seedlings to germinate (Fertig 1998a, p. 17). Since 2004, we have monitored populations of the Colorado butterfly plant that have slowly decreased in numbers or disappeared following the invasion and establishment of these other plant species, only to see Colorado butterfly plants return to the area following disturbance (USFWS 2016b, entire). Additionally, at least one population has moved to an uninvaded area downstream of its former invaded habitat (Handwerk 2016, pers. comm.), suggesting that populations can find more suitable habitat nearby.

Prior to listing, biological control agents were used to control nonnative, invasive species at Warren AFB and may have depressed numbers and extent of Canada thistle and leafy spurge. Introduced gall-forming flies have slowly become established on Warren AFB and have reduced the vigor, height, and reproductive ability of small patches of Canada thistle (Fertig 1997, p. 15), at least in some years (Heidel et al. 2016, p. 16). Also on the Warren AFB, a biocontrol agent for leafy spurge, a different flea beetle than infests the Colorado butterfly plant, was observed in 1997 (Fertig 1998b, p. 18). While the effects of biocontrol agents on nonnative, invasive species appear promising, we do not have sufficient current information on the status of these agents.

Natural succession was considered a threat to the Colorado butterfly plant at the time of listing. However, we now understand that the altered flood regime of today, coupled with disturbance from fire and grazing, is sufficient to maintain suitable habitat throughout much of the species' range. Competition with nonnative, invasive species is an ongoing stressor for portions of populations, although these invasive species tend not to survive the regular disturbances that create habitat for the Colorado butterfly plant. Therefore, while individuals or populations may be out-competed by native or nonnative, invasive species at higher succession levels, periodic disturbance maintains or creates new habitats for the Colorado butterfly plant.

The following stressors warranted consideration as possible current or future threats to the Colorado butterfly plant habitat under Factor A: (1) Residential, urban, and energy development; (2) agricultural practices; (3) water management; and (4) natural succession and competition with nonnative, invasive species. However, these stressors are either being adequately managed, they have not occurred to the extent anticipated at the time of listing, or the species is tolerant of the stressor as described above. While these stressors may be responsible for loss of historical populations (they have negatively affected population redundancy), and are currently negatively affecting the populations in Nebraska, we do not anticipate a rangewide increase in these stressors in the future, although they will continue at some level.

Factor B was not considered a threat to the species at the time of listing (65 FR 62302; October 18, 2000). We are aware of three unpermitted collections of seeds of the Colorado butterfly plant for scientific and/or commercial purposes since the publication of the final listing rule. These three collections were limited events that occurred at an introduction site in Colorado and from a large, robust population in Wyoming. Based on recent population data, these unpermitted collection events had no apparent impact on the number and distribution of plants within these populations or the species' habitat (based on Heidel et al. 2016, p. 13; USFWS 2016b, entire).

Other than these collections, we are not aware of any attempts to use the Colorado butterfly plant for commercial, recreational, scientific, or educational purposes. In the future, we do not anticipate this species will be collected due to its lack of showiness for much of the year and because it occurs in generally inaccessible areas.

At the time of listing, Factor B was not considered a threat to the Colorado butterfly plant. We are aware of only three unpermitted collections of the seeds of the species since listing. These collection events had no apparent effect on the number and distribution of plants from which the seeds were taken.

The listing of the Colorado butterfly plant (65 FR 62302; October 18, 2000) did not include threats from disease or predation, although livestock grazing was described as a potential threat if grazing pressures were high. No diseases are known to affect this species. In 2007, a precipitous decline in plant numbers was observed in many populations monitored in Colorado and Wyoming. The exact cause of the decline was not positively identified, but weather and insect herbivory were two potential contributing factors. Weather-related impacts included an early start to the growing season, lower than normal spring precipitation levels (which were magnitudes lower than in all previous years), and higher mean temperatures in late summer. Insect herbivory also was suspected, as virtually all reproductive plants were riddled with holes, flowering/fruit production was curtailed or greatly reduced on all plants, and some bolted plants died before flowering; interestingly, no vegetative plants showed evidence of herbivory (Heidel et al. 2011, pp. 284-285). Flowering plant numbers remained low or declined further in 2008. Surveyors identified one or more flea beetle species that may have been responsible for the herbivory. The likely flea beetle species ( Altica foliaceae ) is a native species, and its numbers are not known to be affected by human causes.

Insect herbivory may not be a severe or immediate threat to Colorado or Wyoming populations as the impacted populations mentioned above rebounded to pre-infestation numbers in 2009 and 2010 (Heidel et al. 2011, p. 286). However, insect herbivory may be episodic and potentially tied to climate; preliminary tests have been run on insect herbivory's potential impact on population resiliency (Heidel et al. 2011, p. 286). For example, in 2014, intense herbivory from flea beetles at Soapstone Prairie and Meadow Springs Ranch resulted in high mortality and a reduction in bolting of vegetative rosettes (Strouse 2017, pers. comm.), and numbers of reproductive individuals in those populations were low in 2015 and 2016. We found that these populations rebounded in 2017 to record numbers, in the same way populations rebounded after the 2007 flea-beetle-caused decline. This herbivory has not been reported for the Nebraska populations, although it is possible that similar insect herbivory influenced 2008 survey results in Nebraska.

Colorado butterfly plant is highly palatable to a variety of insect and mammalian herbivores including Gaura moth ( Schinia gaurae ), cattle, horses, and pronghorn ( Antilocapra americana ), but the plant appears to have some capacity to compensate for herbivory by increasing branch and fruit production (Fertig 1994, p. 6; Fertig 2000a, p. 17). Livestock grazing can be a threat at some sites if grazing pressures are high due to animals not being rotated among pastures or if use is concentrated during the summer flowering and fruiting period. Additionally, plants may be occasionally uprooted or trampled by livestock and wildlife. In at least two locations where a population was divided by a fence, the heavily grazed side of the fence had few or no Colorado butterfly plants, while the ungrazed side had many (Marriott 1987, p. 27; USFWS 2016b, entire).

Heavy grazing at some times of the year may be detrimental to Colorado butterfly plant populations by temporarily removing reproductive individuals from a population and eliminating seed production for that year. However, even after many years of intensive grazing, populations have rebounded upon relief (USFWS 2012, pp. 11-21; USFWS 2016b, entire). This response is likely due to survival of nonreproductive individuals and recruitment from the seedbank. Moderate grazing acts as a disturbance that keeps the habitat in an open or semi-open state suitable for this species, and light to medium grazing can provide benefits by reducing the competing vegetative cover and allowing seedlings to become established (USFWS 1997, p. 8).

In general, while disease or predation has had an occasional negative impact on individuals and localities, most of these impacts do not appear to affect entire populations, nor do these impacts persist for any extended period of time. Individuals are resilient to damage; vegetative plants (basal rosettes) appear to be resistant to damage from grazing activities and are capable of withstanding stochastic events, and reproductive plants send out additional flowering branches upon injury. Also, the lack of any known diseases affecting the species and the species' redundancy of many populations distributed across most of the historical range would likely provide a buffer to any type of catastrophic disease outbreak.

Under this factor, we examine whether the stressors identified within the other factors may be ameliorated or exacerbated by an existing regulatory mechanism or conservation efforts. Section 4(b)(1)(A) of the Act requires the Service to take into account “those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species.” In relation to Factor D under the Act, we interpret this language to require the Service to consider relevant Federal, State, and Tribal laws, regulations, and other such binding legal mechanisms that may ameliorate or exacerbate any of the threats we describe in threats analyses under the other four factors, or otherwise enhance conservation of the species. Our consideration of these mechanisms is described in detail within each of the threats or stressors to the species (see discussion under each of the other factors).

For currently listed species, we consider the adequacy of existing regulatory mechanisms to address threats to the species absent the protections of the Act. Therefore, we examine whether other regulatory mechanisms would remain in place if the species were delisted, and the extent to which those mechanisms would continue to help ensure that future threats will be reduced or minimized.

In our discussion under Factors A, B, C, and E, we evaluate the significance of threats as mitigated by any conservation efforts and existing regulatory mechanisms. Where threats exist, we analyze the extent to which conservation measures and existing regulatory mechanisms address the specific threats to the species. Regulatory mechanisms, if they exist, may reduce or eliminate the impacts from one or more identified threats. Presently, the Colorado butterfly plant is a Tier 1 species in the Plants of Greatest Conservation Need in Colorado (Colorado SWAP 2015, entire), and the species is listed on the State endangered species list for Nebraska, and will continue to be so designated due to the species' extreme rarity in Nebraska (Wooten 2008, p. 1).

When we listed the Colorado butterfly plant in 2000 (65 FR 62302; October 18, 2000), the majority of known populations occurred on private lands managed primarily for agriculture, with one population at Warren AFB, and a few other populations throughout the species' range under various local jurisdictions. The listing decision described the species' status as Sensitive by the U.S. Forest Service, although no populations occurred on Forest Service lands at the time. The listing decision also described the lack of protection extended to the Colorado butterfly plant through the Federal threatened status of Preble's meadow jumping mouse ( Zapus hudsonius preblei ) that occurs in the same range of habitats due to the two species' use of differing successional stages of riparian habitats (65 FR 62302, October 18, 2000, p. 62307).

Regulations governing the summer flounder fishery are found in 50 CFR 648.100 through 648.110. These regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through North Carolina. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.102 and final 2019 allocations were published on May 17, 2019 (84 FR 22392).

The final rule implementing Amendment 5 to the Summer Flounder Fishery Management Plan, as published in the Federal Register on December 17, 1993 (58 FR 65936), provided a mechanism for transferring summer flounder commercial quota from one state to another. Two or more states, under mutual agreement and with the concurrence of the NMFS Greater Atlantic Regional Administrator, can transfer or combine summer flounder commercial quota under § 648.102(c)(2). The Regional Administrator is required to consider three criteria in the evaluation of requests for quota transfers or combinations: The transfer or combinations would preclude the overall annual quota from being fully harvested, the transfer addresses an unforeseen variation or contingency in the fishery, and the transfer is consistent with the objectives of the GMP and the Magnuson-Stevens Act.

North Carolina is transferring 23,481 lb (10,651 kg) and 7,706 lb (3,495 kg) of summer flounder commercial quota to Rhode Island and Virginia, respectively, through mutual agreement of the states. These transfers were requested to repay landings made by North Carolina-permitted vessels in Rhode Island and Virginia under safe harbor agreements. Based on the revised Summer Flounder, Scup, and Black Sea Bass Specifications, the revised summer flounder quotas for fishing year 2019 are now: North Carolina, 2,926,555 lb (1,327,463 kg); Rhode Island, 1,745,943 lb (9,1946 kg); and Virginia, 2,398,416 lb (1,087,903 kg).

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.

The 2019 Pacific cod TAC specified for catcher vessels using hook-and-line gear in the Western Regulatory Area of the GOA is 73 metric tons (mt) as established by the final 2019 and 2020 harvest specifications for groundfish of the GOA (84 FR 9416, March 14, 2019).

The 2019 Pacific cod TAC specified for catcher/processors using trawl gear in the Western Regulatory Area of the GOA is 125 metric tons (mt) as established by the final 2019 and 2020 harvest specifications for groundfish of the GOA (84 FR 9416, March 14, 2019).

The 2019 Pacific cod TAC specified for vessel using jig gear in the Western Regulatory Area of the GOA is 134 metric tons (mt) as established by the final 2019 and 2020 harvest specifications for groundfish of the GOA (84 FR 9416, March 14, 2019).

The 2019 Pacific cod TAC specified for vessels using pot gear in the Western Regulatory Area of the GOA is 1,980 metric tons (mt) as established by the final 2019 and 2020 harvest specifications for groundfish of the GOA (84 FR 9416, March 14, 2019).

The 2019 Pacific cod TAC apportioned to catcher vessels using trawl gear in the Western Regulatory Area of the GOA is 2,000 metric tons (mt), as established by the final 2019 and 2020 harvest specifications for groundfish of the GOA (84 FR 9416, March 14, 2019). The Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that catcher vessels using trawl gear will not be able to harvest 330 mt of the 2019 Pacific cod TAC allocated to those vessels under § 679.20(a)(12)(i)(A)( 3 ).

In accordance with § 679.20(a)(12)(ii)(B), the Regional Administrator has also determined that catcher vessels using hook-and-line gear, catcher/processors using trawl gear, vessels using jig gear, and vessels using pot gear currently have the capacity to harvest this excess allocation. Therefore, NMFS apportions 330 mt of Pacific cod from the trawl catcher vessel apportionment to catcher vessels using hook-and-line gear, catcher/processors using trawl gear, vessels using jig gear, and vessels using pot gear in the Western Regulatory Area of the GOA.

The harvest specifications for Pacific cod in the Western Regulatory Area of the GOA included in the final 2019 and 2020 harvest specifications for groundfish of the GOA (84 FR 9416, March 14, 2019) are revised as follows: 1,670 mt to catcher vessels using trawl gear, 155 mt to catcher/processors using trawl gear, 108 mt to vessels using hook-and-line gear, 184 mt to vessels using jig gear, and 2,195 mt to vessels using pot gear.

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 reallocations of Pacific cod in the Western Regulatory Area of the GOA. Since the fishery is currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 28, 2019.

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

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