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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Background

The Bureau of Industry and Security (BIS) is currently undertaking a comprehensive review of all Country Groups in the Export Administration Regulations (EAR) to ensure that they appropriately reflect current U.S. national security and foreign policy, including nonproliferation interests.

The foundation of this rule derives from the structure and purposes of the Commerce Country Chart found in Supplement No. 1 to part 738 and the Country Groups found in Supplement No. 1 to part 740 of the EAR. The Country Chart contains licensing requirements based on the destination to which items listed on the Commerce Control List (CCL) (Supplement No. 1 to part 774) will be exported or reexported and their corresponding “Reason for Control,” which is found in the CCL entry. An “X” in the cell where the “reason for control” column intersects with the row of the destination indicates a license requirement. Licenses are required to export and reexport items under the EAR for multilateral reasons ( i.e., chemical and biological (CB), nuclear nonproliferation (NP), national security (NS), and missile technology (MT)); and for unilateral reasons ( i.e., region stability (RS), crime control (CC) and anti-terrorism (AT)), as well as to implement controls for firearms convention (FC) and United Nations Security Council purposes. Controls for United Nations Security Council purposes are identified by the abbreviation “UN” in the applicable CCL entries. The “UN” reason for control is described in § 746. 2(b) of the EAR.

In combination with the CCL—the list of items classified and set-out as Export Control Classification Numbers (ECCNs) and arranged by categories—the Country Chart allows an exporter to determine whether a license is required for the export or reexport of an item on the CCL to the destinations on the Chart, unless otherwise specified in the particular ECCN entry on the CCL. The lists of Country Groups (A, B, D and E) set out countries with respect to relative risk and record of like-minded export controls, and importantly, as a basis for the availability of exceptions from license requirements described in part 740 (License Exceptions) of the EAR, provided the conditions for the use of the License Exception are met. Country Groups may also be used when describing license review policy.

The two lists—the Commerce Country Chart and Country Groups—were developed for separate purposes and allow for systematic licensing determinations. Country Groups are not reviewed unless a license is required by the Country Chart for exports and reexports of items listed in the CCL, unless, as mentioned above, otherwise indicated in the ECCN entry on the CCL.

Continuing to apply the structure and purposes of the Country Chart and Country Groups in furtherance of U.S. national security and foreign policy, including nonproliferation interests, this rule is part of BIS's review of Country Groups. BIS has determined the current Country Group designations for Russia and Yemen should be changed to address U.S. national security, foreign policy, including proliferation concerns as further described below.

Specifically, this rule removes Russia from more favorable treatment under Country Groups A:2 and A:4 and adds it to Country Groups D:2 and D:4 based on nuclear and missile technology proliferation concerns, respectively. BIS also amends the licensing policy for related items to reflect a presumption of denial consistent with the Country Group changes. Separately, this rule removes Yemen from more favorable treatment under Country Group B and adds it to Country Group D:1 to reflect national security concerns.

As a result of these Country Group changes, certain license exceptions are no longer available for Russia and Yemen, and licenses are now required for those destinations in connection with exports, reexports, and transfers (in-country) of certain controlled items. In addition, certain transactions may be subject to more stringent licensing review policies or additional prohibitions as outlined in other parts of the EAR. With these actions, BIS seeks to ensure accountability for exports and reexports of items to these destinations. This rule is the first action related to the larger effort to re-structure and re-align the Country Groups set forth in Supplement No. 1 to Part 740 of the EAR.

In this rule, BIS removes Russia from Country Groups A:2 (Missile Technology Control Regime) and A:4 (Nuclear Suppliers Group) to address U.S. concerns about diversion of U.S.-origin items to or from Russia for prohibited end uses and end users. This rule removes the “X” from Column “[A:2]” and the “X” from Column “[A:4]” in Supplement No. 1 to Part 740 for “Russia.” In relation to the changes to Country Groups A:2 and A:4 for Russia, this rule also adds Russia to Country Groups of concern D:2 (Nuclear) and D:4 (Missile Technology). This rule adds an “X” in Column “[D:2]” and an “X” in Column “[D:4]” in Supplement No. 1 to Part 740 for “Russia.” Consistent with adding “Russia” to Country Group “[D:2],” this rule adds an “X” in Column “NP 1” for “Russia” in Supplement No. 1 to Part 738—Commerce Country Chart. Finally, BIS revises the licensing policy for items to Russia to a policy of presumption of denial when the items are controlled for reasons described under § 742.2 (Proliferation of chemical and biological weapons), § 742.3 (Nuclear nonproliferation), or § 742.5 (Missile technology) of the EAR. However, with regard to NP and MT controls, applications for exports and reexports of items, which include commodities, software and technology, to Russia in support of U.S.-Russia civil space cooperation activities or commercial space launches will be reviewed on a case-by-case basis.

These amendments are consistent with the purpose of this rule to address U.S. concerns about Russia's lack of cooperation and accountability for U.S.-origin items and diversion to unauthorized or prohibited proliferation activities, end uses, and end users. Specifically, Russia has not been cooperative in allowing BIS to perform pre-license checks or post-shipment verifications related to U.S.-origin goods. The presumption of denial under § 742.2 further accentuates the seriousness with which the United States takes Russia's use of a “novichok” nerve agent in the attack against Sergei Skripal and his daughter Yulia Skripal in the United Kingdom on March 4, 2018.

In this rule, BIS removes Yemen from Country Group B and places Yemen in the country group of concern for national security reasons, Country Group D:1 (National Security). Specifically, this rule removes “Yemen” from Country Group B in Supplement No. 1 to part 740, and adds an “X” in Column “[D:1]” of that Supplement for “Yemen.”

These changes are being made to address concerns about diversion of U.S.-origin items in Yemen for unauthorized purposes, including prohibited proliferation activities, end uses, and end users. In addition, there are concerns about the diversion to unauthorized and prohibited end uses and users of U.S.-origin items controlled for national security reasons. The ongoing conflict in Yemen has fostered international terrorism and instability in the Arabian Peninsula, including the proliferation of small arms, unmanned aerial systems, and missiles.

The removal of Russia from Country Groups A:2 and A:4 means a number of license exceptions are no longer available for Russia, and previously eligible items now require a license to Russia. Consistent with removing Russia from Country Groups A:2 and A:4 and adding it to Country Group D:2, a license is required for the export or reexport of items subject to NP 1 controls as identified in the applicable Export Control Classification Numbers (ECCNs) in Supplement No. 1 to part 774 (The Commerce Control List). Denoting this license requirement, this final rule adds an “X” in the NP 1 column of the nuclear nonproliferation column in Supplement No. 1 to part 738 of the EAR for Russia. License applications for these items will be reviewed with a presumption of denial. Consistent with adding Russia to Country Group D:2, the general prohibition in paragraph (a)(1)(i)(A) of § 744.6, Restrictions on certain activities of U.S. persons, will be applicable if the U.S. person exports, reexports, or transfers (in-country) with “knowledge” of a prohibited end use in or by Russia.

Consistent with adding Russia to Country Group D:4, the general prohibitions in paragraphs (a)(1) and (3) of § 744.3, Restrictions on certain rocket systems (including ballistic missiles, space launch vehicles and sounding rockets) and unmanned aerial vehicles (including cruise missiles, target drones and reconnaissance drones) end-uses, will be applicable if the exporter, reexporter, or transferor has “knowledge” the transaction involves one of those prohibited end uses in or by Russia. In addition, consistent with adding Russia to Country Group D:4, the general prohibitions in § 744.6 under paragraphs (a)(1)(i)(B) and (a)(2)(i) will be applicable if the U.S. person exports, reexports, or transfers (in country) with “knowledge” of one of those prohibited end uses in or by Russia, or engages in one of those prohibited activities with “knowledge” that it will directly assist such an end use.

The removal of Yemen from County Group B means that the following license exceptions will no longer be available: § 740.3, Shipments of limited value (LVS); § 740.4, Shipments to Country Group B countries (GBS); and § 740.6, Technology and software under restriction (TSR). As a corollary, Yemen's addition to Country Group D:1 means that the following license exceptions, or other portions thereof, which include limitations related to Country Group D, will no longer be available: § 740.9, Temporary imports, exports, reexports, and transfers (in-country) (TMP); § 740.10, Servicing and replacement of parts and equipment (RPL); § 740.12, Gift parcels and humanitarian donations (GFT); § 740.14, Baggage (BAG); § 740.15, Aircraft and vessels (AVS); § 740.16, Additional permissive reexports (APR); and § 740.17, Encryption, commodities, software, and technology (ENC).

Section 742.4(b)(2) of the EAR states the licensing policy for exports and reexports of national-security controlled items to destinations in Country Group D:1. That licensing policy is to approve applications when BIS determines, on a case-by-case basis, that the items are for civilian use or otherwise would not make a significant contribution to the military potential of the country of destination that would prove detrimental to the national security of the United States. License applications to export or reexport national security controlled items to Yemen will now be subject to this licensing policy.

In addition, Yemen's placement in Country Group D:1 will result in the imposition of restrictions on the export, reexport, and transfer (in-country) of certain microprocessors to military end uses and end users in Yemen, pursuant to § 744.17, Restrictions on certain exports, reexports, and transfers (in-country) of microprocessors and associated “software” and “technology” for `military end uses' and to `military end users.' Furthermore, restrictions on certain exports and reexports to vessels and aircraft located in Yemeni ports or registered in Yemen will become effective pursuant to § 744.7, Restrictions on certain exports to and for the use of certain foreign vessels or aircraft. Finally, the addition of Yemen to Country Group D:1 will expand the licensing requirements for reexports of the foreign-produced direct product of U.S.-origin technology and software to Yemen pursuant to § 736.2(b)(3), General Prohibition Three.

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4801-4852). ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule. As set forth in Section 1768 of ECRA, all delegations, rules, regulations, orders, determinations, licenses, or other forms of administrative action that were made, issued, conducted, or allowed to become effective under the Export Administration Act of 1979 (50 U.S.C. 4601 et seq. ) (as in effect on August 12, 2018, and as continued in effect pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq. )), or under the Export Administration Regulations, and were in effect as of August 13, 2018, shall continue in effect according to their terms until modified, superseded, set aside, or revoked under the authority of ECRA.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. This final rule will support the national security and foreign policy objectives of the United States by broadening the U.S. Government's visibility into exports, reexports, and transfers (in-country), for a country of concern when the transactions involve national security controlled items and items controlled for proliferation reasons.

2. Notwithstanding any other provision of law, no person may be required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves a collection currently approved by OMB under control number 0694-0088, Simplified Network Application Processing System. This collection includes, among other things, license applications, and carries a burden estimate of 42.5 minutes for a manual or electronic submission for a total burden estimate of 31,878 hours. BIS expects the burden hours associated with this collection to increase slightly by 4 hours for an estimated cost increase of $120. This increase is not expected to exceed the existing estimates currently associated with OMB control number 0694-0088.

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

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

5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

6. This final rule is not subject to the requirements of Executive Order 13771 (82 FR 9339, February 3, 2017) because it is issued with respect to a national security function of the United States. The cost-benefit analysis required pursuant to Executive Orders 12866 and 13563 indicates that this rule is intended to improve national security as its primary direct benefit. Specifically, revising the status of the Country Group designations for Russia and Yemen in this rule protects the United States and allies by serving the priorities of reducing the risk that exports, reexports, and transfers (in-country) of items subject to the EAR could be diverted and contribute to weapons of mass destruction proliferation and the military capability of countries of concern, contrary to U.S. national security interests. Accordingly, this rule meets the requirements set forth in the April 5, 2017 OMB guidance implementing Executive Order 13771 (82 FR 9339, February 3, 2017), regarding what constitutes a regulation issued “with respect to a national security function of the United States,” and is, therefore, exempt from the requirements of Executive Order 13771.

Shipments of items removed from license exception eligibility or eligibility for export, reexport or transfer (in country) without a license as a result of this regulatory action that were on dock for loading, on lighter, laden aboard and exporting carrier, or en route aboard a carrier to a port of export, on February 24, 2020, pursuant to actual orders for exports, reexports and transfers (in country) to a foreign destination, may proceed to that destination under the previous license exception eligibility or without a license so long as they have been exported, reexported or transferred (in-country) before 30 days from date of publication. Any such items not actually exported, reexported or transferred (in-country) before midnight on March 25, 2020 require a license in accordance with this final rule.

Accordingly, parts 738, 740, and 742 of the Export Administration Regulations (15 CFR parts 730-774) are amended as follows:

Background

We use the listings in appendix 1 to subpart P of part 404 of 20 CFR at the third step of the sequential evaluation process to evaluate claims filed by adults and children for benefits based on disability under the title II and title XVI programs. 1 20 CFR 404.1520(d), 416.920(d), 416.924(d). The listings are in two parts: Part A has listings criteria for adults and Part B has listings criteria for children. If you are age 18 or over, we apply the listings criteria in part A when we assess your impairment or combination of impairments. If you are under age 18, we first use the criteria in part B of the listings when we assess your impairment(s). If the criteria in part B do not apply, we may use the criteria in part A when those criteria consider the effects of your impairment(s). 20 CFR 404.1525(b), 416.925(b).

In this final rule, we are extending the dates on which the listings for the following three body systems will no longer be effective as set out in the following chart:

We continue to revise and update the listings on a regular basis, including those body systems not affected by this final rule. 2 We intend to update the three listings affected by this final rule as necessary based on medical advances as quickly as possible, but may not be able to publish final rules revising these listings by the current expiration dates. Therefore, we are extending the expiration dates listed above.

We follow the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 in promulgating regulations. Section 702(a)(5) of the Social Security Act, 42 U.S.C. 902(a)(5). Generally, the APA requires that an agency provide prior notice and opportunity for public comment before issuing a final regulation. The APA provides exceptions to the notice-and-comment requirements when an agency finds there is good cause for dispensing with such procedures because they are impracticable, unnecessary, or contrary to the public interest.

We determined that good cause exists for dispensing with the notice and public comment procedures. 5 U.S.C. 553(b)(B). This final rule only extends the date on which the three body system listings will no longer be effective. It makes no substantive changes to our rules. Our current regulations  3 provide that we may extend, revise, or promulgate the body system listings again. Therefore, we determined that opportunity for prior comment is unnecessary, and we are issuing this regulation as a final rule.

In addition, for the reasons cited above, we find good cause for dispensing with the 30-day delay in the effective date of this final rule. 5 U.S.C. 553(d)(3). We are not making any substantive changes to the listings in these body systems. Without an extension of the expiration dates for these listings, we will not have the criteria we need to assess medical impairments in the three body systems at step three of the sequential evaluation processes. We therefore find it is in the public interest to make this final rule effective on the publication date.

We consulted with the Office of Management and Budget (OMB) and determined that this final rule does not meet the requirements for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. Therefore, OMB did not review it. We also determined that this final rule meets the plain language requirement of Executive Order 12866.

We certify that this final rule does not have a significant economic impact on a substantial number of small entities because it affects only individuals. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act, as amended.

This regulation does not impose novel costs on the public and as such is considered an exempt regulatory action under E.O. 13771.

This final rule only extends the date for the medical listings cited above, but does not create any new or affect any existing collections, or otherwise change any content of the currently published rules. Accordingly, it does not impose any burdens under the Paperwork Reduction Act, and does not require further OMB approval.

For the reasons set out in the preamble, we are amending appendix 1 to subpart P of part 404 of chapter III of title 20 of the Code of Federal Regulations as set forth below.

Executive Summary Purpose and Authority

This final rule amends PBGC's regulation on rules for administrative review of agency decisions to clarify, simplify, and make other editorial changes to the language, and codify PBGC practices.

Legal authority for this action comes from section 4002(b)(3) of the Employee Retirement Income Security Act of 1974 (ERISA), which authorizes PBGC to issue regulations to carry out the purposes of title IV of ERISA.

This final rule:

• Subjects all coverage determinations to appeal.

• Subjects all determinations concerning the allocation of a trusteed plan's assets upon plan termination to appeal, except for determinations concerning the distribution of residual assets, which remain subject to reconsideration.

• Clarifies that, consistent with PBGC's long-standing practice, when PBGC makes an initial determination effective on the date of issuance, a person aggrieved by the initial determination has no right to request reconsideration or appeal of the determination.

• Clarifies where to send requests for extensions on appeals and extensions for reconsideration.

• Clarifies that persons seeking administrative review may request information in PBGC's possession by using PBGC's procedures for requests under the Freedom of Information Act and the Privacy Act.

The Pension Benefit Guaranty Corporation (PBGC) administers two insurance programs for private-sector defined benefit pension plans under title IV of the Employee Retirement Income Security Act of 1974 (ERISA): A single-employer plan termination insurance program and a multiemployer plan insolvency insurance program. This final rule applies only to plans covered by the single-employer plan termination insurance program.

PBGC is committed to the ongoing retrospective review of its regulations. This practice ensures that PBGC provides clear and helpful guidance, minimizes burdens and maximizes benefits, and addresses ineffective and outdated rules. In the course of PBGC's regulatory review, PBGC identified opportunities to improve its regulation on Rules for Administrative Review of Agency Decisions (29 CFR part 4003) by making it more transparent, simplifying language, and codifying policies.

On October 4, 2019 (at 84 FR 53084), PBGC published a proposed rule to amend PBGC's administrative review regulation. PBGC received no comments on the proposed rule. The final rule is the same as the proposed rule.

PBGC's administrative review regulation provides procedures so that persons who are aggrieved by PBGC determinations have an opportunity to present their positions to PBGC before a final decision is made by the agency. When PBGC first promulgated its rules on administrative review of agency decisions in 1979 (the “1979 rule”), it emphasized the competing interests of providing “fair and effective administrative review” and “keep[ing] to a minimum the time and cost entailed in obtaining PBGC review of its decisions.”  1 To balance these interests, PBGC developed an administrative review system with two separate processes: Reconsideration and appeal.

Under reconsideration, aggrieved persons generally raise their concerns and make their cases directly to a higher-level official within the same department that issued the initial determination. Most requests for reconsideration are filed by the designated payor  2 under § 4003.1(b)(2) and relate to premiums, interest, and late payment penalties.

Under the appeals process, the decisionmaker reviewing the initial determination is not within the same department that issued the initial determination. Rather, the PBGC Appeals Board, which is located within the Office of the General Counsel, provides an independent review of the initial determination. Decisions by the Appeals Board may be made either by a three-member panel or by an individual member. Originally, a decision on appeal was always decided by a three-member panel. The appeals process changed in 2002 when the administrative review regulation was amended to expedite the appeals process, authorizing a single member of the PBGC Appeals Board to decide routine appeals instead of the three-member panel. 3 All non-routine appeals are decided by a three-member panel. Most appeals are filed by individuals (participants, beneficiaries, and alternate payees) in connection with benefit entitlement or amounts, although sponsors have filed appeals of termination liability assessments and non-coverage determinations.

Subpart A of the regulation provides a list of initial determinations made by PBGC, with each determination subject to either the reconsideration procedures described in subpart C or the appeals procedures described in subpart D. The final rule reorganizes the list in § 4003.1(b) into two new paragraphs by moving and reorganizing the list of initial determinations subject to reconsideration to § 4003.1(d) and the list of initial determinations subject to appeal to § 4003.1(e). These changes simplify references to the types of determinations subject to each type of administrative review and improve the readability of this section.

Subpart B of the regulation provides rules for the form and contents of initial determinations and specifies that initial determinations will not become effective until the time for filing a request for reconsideration under subpart C or an appeal under subpart D has elapsed.

Under an exception in § 4003.22(b), PBGC may in its discretion order that an initial determination is effective on the date of issuance. As an example, when PBGC makes an initial determination under section 4042 of ERISA that the statutory criteria for termination are met, the initial determination states that it is effective on the date of issuance. When PBGC makes an order that an initial determination is effective on the date of issuance, any person aggrieved by the initial determination has exhausted all available administrative remedies and may seek judicial review of PBGC's determination in an appropriate court under section 4003(f)(2) of ERISA.

The final rule amends § 4003.22(b) to clarify that the exception under it does not apply to initial determinations related to a participant's or beneficiary's benefit entitlement and the amount of benefit payable under a covered plan, to whether a domestic relations order is or is not qualified, and to whether benefits are payable under section 4050 of ERISA and part 4050, as listed respectively in the new § 4003.1(e)(2), (3), and (6). The final rule further amends § 4003.22(b) to clarify that when PBGC issues an order making an initial determination effective on the date of issuance, a person aggrieved by the initial determination has no right to request review under subparts C and D, consistent with PBGC's long-standing practice, and has exhausted all administrative remedies.

PBGC insures plans described in section 4021(a) of ERISA that do not fall within one of the exemptions from coverage listed in section 4021(b)(1)-(13) of ERISA. If a question arises about whether a plan is covered under title IV, PBGC may make a coverage determination.

As discussed in the proposed rule, the administrative review regulation provides that coverage determinations under section 4021 of ERISA are subject to different review procedures. An initial determination that a plan is covered under section 4021 is subject to reconsideration by the PBGC department that issued the original determination. An initial determination that a plan is not covered is subject to appeal to the PBGC Appeals Board. Based on internal data gathered by PBGC from fiscal years 2013 through 2017, there were few requests for reconsideration of coverage determinations (a total of 18) and even fewer requests for appeal of coverage determinations (one in 2017). The data indicates that the total amount of time and agency resources used to close requests for reconsideration and appeals of coverage determinations are similar.

As originally designed, case resolution under the appeals process generally took longer and put a greater burden on PBGC's administrative resources than the reconsideration process. The movement to single member decisions for routine cases and other process improvements have largely mitigated these issues. In light of these improvements, for the sake of consistency, the final rule makes all coverage determinations subject to appeal to the PBGC Appeals Board. In cases in which the Appeals Board is considering granting a plan sponsor's appeal by finding that a plan is not covered, the Appeals Board will make reasonable efforts to notify plan participants of the decision under consideration and permit them an opportunity to present matters as a potential aggrieved party to the appeal under § 4003.57(a). The final rule removes § 4003.1(b)(1) and adds language in new § 4003.1(e)(1), to subject all coverage determinations to the appeals process.

Section 4044 of ERISA requires that when an underfunded pension plan terminates, PBGC must assign benefits payable to each participant to one or more of six priority categories and allocate the plan's assets to the benefits in each category in a prescribed sequential order ( i.e., priority categories 1 through 6). To accomplish the allocation process in a terminated plan, PBGC first values the benefits in each of a terminated plan's six priority categories and the terminated plan's assets as of the plan's termination date. After valuing the benefits and assets, PBGC allocates the assets available to pay benefits to the benefits assigned to each priority category, beginning with the highest priority category, i.e., priority category 1, and continuing in sequential order until the assets satisfy all benefits in all priority categories or until the assets are insufficient to pay all benefits within a particular category.

In substantially all plans that terminate in a distress or involuntary (PBGC-initiated) termination, the plan's assets do not satisfy all benefits assigned to the six priority categories and the assets will be insufficient to satisfy all benefit liabilities, as defined under section 4001(a)(16) of ERISA. PBGC typically becomes the statutory trustee of these plans and pays guaranteed benefits to participants and beneficiaries up to statutory limits. Some participants may receive more than their statutorily guaranteed benefit depending upon the priority category to which their benefit is assigned and the extent to which (if any) assets are sufficient to pay all benefits in that category. PBGC-trusteed plans rarely have residual assets.

In an employer-initiated standard termination of a sufficient plan, a plan's assets must satisfy and may exceed all benefit liabilities under the plan. Section 4044(d) of ERISA describes the circumstances under which any residual assets of a single-employer plan may be distributed to the employer or participants and beneficiaries.

As discussed in the proposed rule, the administrative review regulation provides that PBGC's asset allocation determinations are subject to the reconsideration process, describing them in § 4003.1(b)(4) as “determinations with respect to allocation of assets under section 4044 of ERISA, including distribution of excess assets under section 4044(d).”  4 This language could be read to imply that PBGC issues standalone determinations with respect to asset allocations. Although PBGC's processing of a trusteed plan includes an allocation of the plan's assets available to pay benefits under section 4044 of ERISA, determinations on allocating assets to benefits in the six priority categories depend on the value of benefits in each priority category and the plan assets available to pay benefits in a particular priority category in the prescribed sequence. Such determinations are incorporated into other benefit-specific determinations that PBGC regularly issues that are subject to the appeals process, such as those issued under § 4003.1(b)(7) (determinations under section 4022(a) or (c) of ERISA with respect to benefit entitlement of participants and beneficiaries under covered plans) and § 4003.1(b)(8) (determinations under section 4022(b) or (c) or section 4022B of ERISA of the amount of benefits payable to participants and beneficiaries under covered plans).

Participants and their beneficiaries may appeal the initial determinations of their benefit entitlements and amounts of benefits payable, as provided in their individual benefit determinations. Determinations of benefit entitlements and amounts of benefits payable depend on PBGC's assignment and valuation of benefits and the allocation of assets available to pay benefits to the priority categories to which those benefits are assigned and the extent to which assets are allocated to non-guaranteed benefits in certain priority categories pursuant to section 4044(a) of ERISA and PBGC's regulation on Allocation of Assets in Single-Employer Plans (29 CFR part 4044).

Consistent with PBGC's long-standing practice, the final rule clarifies in new § 4003.1(e)(2) that the right to appeal an individual benefit determination necessarily includes the right to appeal a participant's or beneficiary's benefit entitlement and the amount of benefit payable based on the value of the benefits assigned to specific priority categories and PBGC's allocation of assets available to pay benefits to those categories under the method prescribed by section 4044(a) of ERISA. The final rule removes § 4003.1(b)(4) and creates a new § 4003.1(d)(2)(iv), to continue to subject determinations involving the distribution of residual assets under section 4044(d) of ERISA to the reconsideration process. The final rule also revises the description of individual benefit determinations subject to appeal in § 4003.1(b)(7) and (8) and reorganizes these provisions in new § 4003.1(e)(2) and (3).

As discussed in the proposed rule, § 4003.3 of the administrative review regulation provides that a person may request PBGC's assistance in obtaining relevant information in the possession of a third party. The regulation is silent about obtaining information in PBGC's possession. The preamble to the 1979 rule explains that this omission was intentional because “a party to an appeal who wishes to examine PBGC documents need only file a request pursuant to [PBGC's FOIA regulation].”  5

It came to PBGC's attention through the Office of the PBGC Participant and Plan Sponsor Advocate that participants seeking administrative review are often unaware of their ability to request relevant information under the FOIA and the Privacy Act by using PBGC procedures at 29 CFR parts 4901 and 4902, respectively. While parts 4901 and 4902 provide straightforward processes for requesting and obtaining such materials from PBGC's Disclosure Division, some participants learn of them only after contacting another PBGC office and ultimately being referred to the Disclosure Division and instructed to follow such procedures. PBGC aims to avoid confusing participants in their efforts to identify the appropriate point of contact and steps to obtain relevant information.

To make the information gathering process more efficient and transparent for persons seeking administrative review, the final rule reorganizes § 4003.3 to clarify that persons may request information using PBGC's procedures for FOIA and Privacy Act requests. Paragraph (a) contains the section's scope, paragraph (b) provides a description concerning information not in the possession of PBGC, and paragraph (c) provides a description concerning information in the possession of PBGC including a cross-reference to PBGC's FOIA and Privacy Act regulations.

The final rule amends § 4003.3(b) to include additional language concerning a request for PBGC's assistance in obtaining materials not in the possession of PBGC to clarify that such a request must be submitted to the Appeals Board or the department responsible for reviewing the initial determination. The section refers persons requesting PBGC's assistance with a reconsideration to § 4003.33 and with an appeal to § 4003.54.

The final rule deletes § 4003.4(b) concerning requests for extensions of time related to disaster relief and reorganizes the section to contain a single paragraph concerning a request for an extension of time when a document is required to be filed within a certain period. PBGC published a notice describing how it changed its announcement of relief from filing deadlines and penalties when a disaster occurs and explaining that PBGC's disaster relief will be available at the same time the Internal Revenue Service issues disaster relief to taxpayers. 6

The final rule amends § 4003.4 to include language providing that requests for extension of time for the submission of appeals should be sent to the Appeals Board while requests for extension of the submission of requests for reconsideration should be sent to the department that issued the initial determination.

The final rule amends § 4003.34 to clarify the form and content requirements that a request for reconsideration must include.

The final rule adds new § 4003.35(c) to clarify that a decision on a request for reconsideration constitutes a final PBGC action, which is binding on all persons who participated in the request. This language is consistent with the language in § 4003.59(b) that a decision of the Appeals Board constitutes final agency action by PBGC.

The final rule also makes clarifications and other editorial changes to part 4003.

The Office of Management and Budget (OMB) has determined that this rule is not a “significant regulatory action” under Executive Order 12866. Accordingly, this final rule is exempt from Executive Order 13771, and OMB has not reviewed the final rule under Executive Order 12866.

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity).

Although this is not a significant regulatory action under Executive Order 12866, PBGC has examined the economic and policy implications of this final rule and has concluded that there will be no significant economic impact as a result of the final amendments to PBGC's regulation. Most of the amendments merely clarify existing PBGC practices and neither the public nor PBGC is likely to assume any additional costs due to these amendments and revisions.

Section 6 of Executive Order 13563 requires agencies to rethink existing regulations by periodically reviewing their regulatory program for rules that “may be outmoded, ineffective, insufficient, or excessively burdensome.” These rules should be modified, streamlined, expanded, or repealed as appropriate. PBGC has identified the amendments to the administrative review regulation and the clarifications and improvements to this regulation as consistent with the principles for review under Executive Order 13563. PBGC believes this provides clearer guidance to the public.

The Regulatory Flexibility Act  7 imposes certain requirements with respect to rules that are subject to the notice and comment requirements of section 553(b) of the Administrative Procedure Act and that are likely to have a significant economic impact on a substantial number of small entities. Unless an agency determines that a final rule is not likely to have a significant economic impact on a substantial number of small entities, section 604 of the Regulatory Flexibility Act requires that the agency present a final regulatory flexibility analysis at the time of the publication of the final rule describing the impact of the rule on small entities and steps taken to minimize the impact. Small entities include small businesses, organizations, and governmental jurisdictions.

For purposes of the Regulatory Flexibility Act requirements with respect to this final rule, PBGC considers a small entity to be a plan with fewer than 100 participants. This is substantially the same criterion PBGC uses in other regulations  8 and is consistent with certain requirements in title I of ERISA  9 and the Internal Revenue Code (Code), 10 as well as the definition of a small entity that the Department of Labor has used for purposes of the Regulatory Flexibility Act. 11

Thus, PBGC believes that assessing the impact of the final rule on small plans is an appropriate substitute for evaluating the effect on small entities. The definition of small entity considered appropriate for this purpose differs, however, from a definition of small business based on size standards promulgated by the Small Business Administration  12 under the Small Business Act. PBGC therefore requested comments on the appropriateness of the size standard used in evaluating the impact of the amendments in the proposed rule on small entities. PBGC received no comments on this point.

On the basis of its definition of small entity, PBGC certifies under section 605(b) of the Regulatory Flexibility Act that the amendments in this final rule will not have a significant economic impact on a substantial number of small entities. The amendments clarify existing PBGC practices and will have a neutral cost impact. Accordingly, as provided in section 605 of the Regulatory Flexibility Act, sections 603 and 604 do not apply.

PBGC's Form 723, Request for Additional time to file an Appeal of a PBGC Benefit Termination and Form 724, Appeal of a PBGC Benefit Determination, are used by aggrieved persons to assist them with filing an appeal. The collection of information with respect to administrative appeals is approved under control number 1212-0061 (expires July 31, 2022).

The final rule does not require changes to the forms used for appeals. The final rule eliminates the requirement for an appellant to provide the names and addresses of persons who the appellant believes may be aggrieved if PBGC provides the relief sought. As few, if any, appellants provide this information, PBGC does not expect that this final change impacts the hour burden and cost burden for the information collection with respect to appeals.

The administrative review regulation requires that a request for reconsideration include specified information. The collection of information with respect to filings for reconsideration is approved under control number 1212-0063 (expires August 31, 2022).

The final rule clarifies the information required to be submitted for a request for reconsideration, including copies of any documentation that supports the requestor's claim or assertions concerning the request. PBGC expects that this clarification will make the process more efficient and will not impact the hour burden and cost burden for the information collection with respect to reconsideration.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

For the reasons given above, PBGC amends 29 CFR part 4003 as follows.

This final rule removes 32 CFR part 903, “Air Force Academy Preparatory School,” which was originally published on March 8, 2007 (72 FR 10436) and most recently updated on February 21, 2008 (73 FR 9456). Part 903 part is outdated, contains internal guidance, reiterates statutory law, and is otherwise subject to the military function exemption to rulemaking. Current policy is provided individually to applicants and is contained in Air Force Manual 36-2032, Military Recruiting and Accessions, September 27, 2019, https://static.e-publishing.af.mil/production/1/af_a1/publication/afman36-2032/afman36-2032.pdf. Accordingly, this part is unnecessary and can be removed from the CFR.

It has been determined that publication of this CFR part removal for public comment is impracticable and contrary to the public interest because it is based on removing outdated and unnecessary content. This rule is not significant under Executive Order (E.O.) 12866, Sec 3, “Regulatory Planning and Review.” Therefore; E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs,” does not apply.

Applicability Dates: October 2, 2019, First-Class Package Service Contract 103 (MC2019-202 and CP2019-225); October 4, 2019, Priority Mail Express & Priority Mail Contract 99 (MC2019-204 and CP2019-226); October 4, 2019, Priority Mail Contract 552 (MC2019-205 and CP2019-227); October 7, 2019, First-Class Package Service Contract 104 (MC2019-206 and CP2019-228); October 16, 2019, Priority Mail & First-Class Package Service Contract 120 (MC2020-3 and CP2020-3); October 16, 2019, Priority Mail & First-Class Package Service Contract 119 (MC2020-2 and CP2020-2); October 16, 2019, Priority Mail & First-Class Package Service Contract 121 (MC2020-4 and CP2020-4); October 21, 2019, Priority Mail Contract 553 (MC2020-5 and CP2020-6); October 22, 2019, Priority Mail & First-Class Package Service Contract 122 (MC2020-6 and CP2020-7); October 22, 2019, Priority Mail & First-Class Package Service Contract 123 (MC2020-9 and CP2020-8); October 23, 2019, Priority Mail Express & Priority Mail Contract 100 (MC2020-1 and CP2020-1); October 24, 2019, First-Class Package Service Contract 105 (MC2020-10 and CP2020-9); November 1, 2019, Priority Mail Express & Priority Mail Contract 101 (MC2020-11 and CP2020-10); November 1, 2019, Priority Mail & First-Class Package Service Contract 124 (MC2020-12 and CP2020-11); November 4, 2019, Priority Mail Contract 554 (MC2020-13 and CP2020-12); November 4, 2019, Priority Mail Contract 556 (MC2020-15 and CP2020-14); November 4, 2019, Priority Mail Contract 555 (MC2020-14 and CP2020-13); November 6, 2019, Priority Mail Express, Priority Mail & First-Class Package Service Contract 67 (MC2020-16 and CP2020-15); November 12, 2019, Priority Mail Express & Priority Mail Contract 102 (MC2020-17 and CP2020-16); November 12, 2019, Priority Mail Contract 557 (MC2020-18 and CP2020-17); November 13, 2019, Priority Mail Express & Priority Mail Contract 103 (MC2020-19 and CP2020-18); November 18, 2019, Priority Mail & First-Class Package Service Contract 125 (MC2020-21 and CP2020-20); November 18, 2019, Priority Mail Contract 559 (MC2020-22 and CP2020-21); November 19, 2019, Priority Mail Contract 558 (MC2020-20 and CP2020-19); November 19, 2019, Priority Mail & First-Class Package Service Contract 126 (MC2020-23 and CP2020-22); November 19, 2019, Priority Mail & First-Class Package Service Contract 127 (MC2020-24 and CP2020-23); November 22, 2019, Priority Mail Express & Priority Mail Contract 104 (MC2020-25 and CP2020-24); November 22, 2019, Priority Mail Contract 560 (MC2020-26 and CP2020-25); November 26, 2019, Priority Mail Contract 561 (MC2020-28 and CP2020-26); November 27, 2019, Priority Mail & First-Class Package Service Contract 128 (MC2020-29 and CP2020-27); November 27, 2019, Parcel Select Contract 35 (MC2020-30 and CP2020-28); November 27, 2019, Priority Mail Contract 562 (MC2020-31 and CP2020-29); December 2, 2019, Priority Mail Contract 563 (MC2020-32 and CP2020-30); December 2, 2019, Priority Mail Express & Priority Mail Contract 105 (MC2020-33 and CP2020-31); December 3, 2019, Priority Mail Contract 564 (MC2020-34 and CP2020-32); December 4, 2019, Priority Mail Contract 565 (MC2020-35 and CP2020-33); December 4, 2019, Priority Mail Express & Priority Mail Contract 106 (MC2020-36 and CP2020-34); December 6, 2019, Priority Mail & First-Class Package Service Contract 129 (MC2020-37 and CP2020-35); December 6, 2019, Priority Mail Contract 566 (MC2020-39 and CP2020-37); December 10, 2019, Priority Mail & First-Class Package Service Contract 131 (MC2020-40 and CP2020-38); December 10, 2019, Priority Mail & First-Class Package Service Contract 132 (MC2020-41 and CP2020-39); December 11, 2019, Priority Mail Contract 567 (MC2020-43 and CP2020-41); December 12, 2019, Priority Mail Express Contract 79 (MC2020-44 and CP2020-42); December 12, 2019, Priority Mail & First-Class Package Service Contract 130 (MC2020-38 and CP2020-36); December 13, 2019, Priority Mail Contract 568 (MC2020-45 and CP2020-43); December 13, 2019, Priority Mail & First-Class Package Service Contract 133 (MC2020-42 and CP2020-40); December 13, 2019, Priority Mail Contract 569 (MC2020-46 and CP2020-44); December 17, 2019, Priority Mail & First-Class Package Service Contract 134 (MC2020-47 and CP2020-45); December 17, 2019, Priority Mail & First-Class Package Service Contract 135 (MC2020-48 and CP2020-46); December 17, 2019, Priority Mail Contract 571 (MC2020-50 and CP2020-48); December 17, 2019, Priority Mail & First-Class Package Service Contract 136 (MC2020-51 and CP2020-49); December 17, 2019, Priority Mail Contract 572 (MC2020-52 and CP2020-50); December 18, 2019, Priority Mail Contract 570 (MC2020-49 and CP2020-47); December 18, 2019, Priority Mail Contract 573 (MC2020-53 and CP2020-51); December 18, 2019, Priority Mail & First-Class Package Service Contract 137 (MC2020-54 and CP2020-52); December 18, 2019, Priority Mail Express & Priority Mail Contract 108 (MC2020-56 and CP2020-54); December 18, 2019, Priority Mail Contract 574 (MC2020-57 and CP2020-55); December 18, 2019, Priority Mail & First-Class Package Service Contract 138 (MC2020-58 and CP2020-56); December 19, 2019, Priority Mail Contract 576 (MC2020-60 and CP2020-58); December 19, 2019, Priority Mail Express & Priority Mail Contract 109 (MC2020-61 and CP2020-59); December 19, 2019, Priority Mail Contract 577 (MC2020-62 and CP2020-60); December 19, 2019, Priority Mail Contract 578 (MC2020-63 and CP2020-62); December 19, 2019, Priority Mail Contract 579 (MC2020-64 and CP2020-63); December 19, 2019, Priority Mail Contract 580 (MC2020-65 and CP2020-64); December 23, 2019, Priority Mail Express & Priority Mail Contract 107 (MC2020-55 and CP2020-53); December 23, 2019, Priority Mail Contract 575 (MC2020-59 and CP2020-57); December 23, 2019, Priority Mail Contract 581 (MC2020-66 and CP2020-65); December 23, 2019, Priority Mail Express Contract 80 (MC2020-67 and CP2020-66); December 23, 2019, Parcel Select Contract 36 (MC2020-68 and CP2020-67); December 23, 2019, Priority Mail Contract 582 (MC2020-69 and CP2020-68); December 30, 2019, Priority Mail Express, Priority Mail, First-Class Package Service & Parcel Select Contract 1 (MC2020-74 and CP2020-73); December 30, 2019, Priority Mail Express, Priority Mail, First-Class Package Service & Parcel Select Contract 2 (MC2020-75 and CP2020-74); December 30, 2019, Priority Mail Express, Priority Mail, First-Class Package Service & Parcel Select Contract 3 (MC2020-76 and CP2020-75).

This document identifies updates to the competitive product list, which appears as 39 CFR Appendix B to Subpart A of Part 3020—Competitive Product List. Publication of the updated product lists in the Federal Register is addressed in the Postal Accountability and Enhancement Act (PAEA) of 2006.

Authorization. The Commission process for periodic publication of updates was established in Docket Nos. MC2010-21 and CP2010-36, Order No. 445, April 22, 2010, at 8.

Changes. The competitive product list is being updated by publishing a replacement in its entirety of 39 CFR Appendix B to Subpart A of Part 3020—Competitive Product List. The following products are being added, removed, or moved within the competitive product list:

The following negotiated service agreements have expired, or have been terminated early, and are being deleted from the Competitive Product List:

Updated product list. The referenced changes to the competitive product list are incorporated into 39 CFR Appendix B to Subpart A of Part 3020—Competitive Product List.

For the reasons discussed in the preamble, the Postal Regulatory Commission amends chapter III of title 39 of the Code of Federal Regulations as follows:

Throughout this document “we,” “us,” and “our” refer to EPA. This section provides additional information by addressing the following:

On July 3, 2018, the Iowa Department of Natural Resources (IDNR) submitted to EPA a revision to its SIP requesting incorporation of recent changes to the Linn County, Iowa, Code of Ordinances. The Clean Air Act (CAA) allows authorized states to delegate portions of the Act's implementation and enforcement to local governments such as Linn County.

The EPA published a proposal to approve Iowa's SIP revision request in the Federal Register on November 25, 2019 (84 FR 227). No comments were received. The purpose of this action is to grant final approval of Iowa's SIP revision request to incorporate the Linn County Code of Ordinance revisions into Iowa's SIP.

The EPA is granting final approval of a submission from the State of Iowa to revise its SIP to incorporate recent updates to Chapter 10, Environment, Article III, Air Quality (hereafter referred to as “Chapter 10”) pertaining to air quality. The revisions to the Iowa SIP are incorporating Linn County's updated definitions and references to the effective dates of Federal rules approved into the state's SIP, renumbering, revising methods and procedures for performance test/stack test and continuous monitoring systems, and revising the public notice and participation requirements to allow permit modifications to be published online rather than in area newspapers which is consistent with recent revisions to Iowa's SIP (83 FR 191, October 2, 2018). The EPA is also approving provisions into the Iowa SIP to codify its existing policy and procedures for appealing permits.

As stated in the proposed rulemaking, the EPA is not acting on portions of Linn County Chapter 10-58, Permits for New and Existing Stationary Sources, and Chapter 10-59, Permit Fees, that pertain to Prevention of Significant Deterioration (PSD) regulations because Iowa has not delegated the PSD program authority to Linn County. The EPA is also not acting on the revisions to Chapter 10-67, Excess Emissions at this time.

The State submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. Linn County held a public comment period from April 24, 2018, to May 23, 2018. No comments were received. The submission satisfies the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained in more detail in the proposed rulemaking published in the Federal Register on November 25, 2019, these revisions meet the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

The public comment period for the EPA's proposed rule opened November 25, 2019, the date of its publication in the Federal Register , and closed on December 26, 2019. During this period, the EPA received no comments.

The EPA is approving revisions to the Iowa SIP to incorporate the revisions to Chapter 10 of the Linn County Code of Ordinances. The revisions clarify rules, make revisions and corrections, and rescind rules no longer relevant to the air program. The EPA has determined that approval of these revisions will not adversely impact air quality and will ensure consistency between the local, state and federally-approved rules, and ensure Federal enforceability of the state's revised air program rules.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Iowa Regulations described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 7 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 the EPA for inclusion in the State Implementation Plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the 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 Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

• Is not subject to requirements of the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; 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 the 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 April 24, 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)).

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as set forth below:

On August 29, 2018, and as supplemented on December 19, 2018, the District of Columbia's Department of Energy and Environment (DOEE) submitted a SIP revision to address all of the RACT requirements for NO X set forth by the CAA under the 2008 ozone NAAQS. The SIP revision also included amendments to its NO X control regulations and an operating permit setting RACT for certain specific emissions units at one major stationary source of NO X (hereafter 2008 NO X RACT Submission). 1

On August 29, 2018 and supplemented on December 19, 2018, DOEE submitted a SIP revision to address all the requirements of NO X RACT set forth by the CAA under the 2008 ozone NAAQS (the 2008 NO X RACT Submission). On September 11, 2019, EPA published a notice of proposed rulemaking (NPRM) for the District of Columbia's SIP revision. (84 FR 47914). Detailed information on the District's 2008 NO X RACT Submission and EPA's review of the submission, can be found in the NPRM, which is also available on line at www.regulations.gov, Docket number EPA-R03-OAR-2019-0207.

The District of Columbia's NO X RACT SIP revision contained a final rule amending Title 20 of the District of Columbia Municipal Regulations (20 DCMR), Chapter 8, section 805.4 to amend the District of Columbia's NO X emission limits for combustion turbines and for any duct burners or associated heat recovery steam generators.

The amendments also included the addition of conforming definitions and abbreviations to the applicability provisions of section 805.1 to clarify that any associated heat recovery steam generators and duct burners were subject to section 805. Further, the amendments amend section 199 “Definitions And Abbreviations” to add definitions for new terms found in section 805.4.

After evaluating the SIP revision submittal, EPA proposed finding that the District's SIP revision satisfied the 2008 8-hour ozone NAAQS RACT requirements for NO X . EPA found that the RACT determination provided by the District of Columbia is reasonable and appropriately considered technically and economically feasible controls while setting lowest achievable limits to adequately meet RACT under the 2008 8-hour ozone NAAQS for the categories of combustion turbines. EPA found that the District of Columbia has set presumptive RACT emissions limits for stationary combustion turbines for existing major stationary sources of NO X in the District of Columbia. EPA found that revising section 805.4 with the regulatory changes of the 2008 NO X RACT Submission strengthens the SIP with respect to oil-fired stationary combustion turbines of greater than 100 million British Thermal Units per hour (mmBTU per hour) heat input capacity and can be approved.

The District of Columbia's NO X RACT SIP Submission included an evaluation of a permit issued by the DOEE to District of Columbia Water and Sewer Authority (DC Water) to construct and operate new biosolids handling facilities located at the Blue Plains Advanced Wastewater Treatment Plant (BPAWTP), which included four sources that are subject to the NO X RACT source specific determination requirements.

After evaluating the SIP revision submittal, EPA proposed finding that the RACT determination provided by the District of Columbia is reasonable and appropriately considered technically and economically feasible controls while setting lowest achievable limits to adequately meet RACT on a source specific basis under the 2008 8-hour ozone NAAQS for the BPAWTP emissions units. EPA concluded that source specific limits for the digester gas-fired auxiliary boiler and three flares are appropriate because the source category, related to municipal wastewater treatment, is unique within the District of Columbia. These limits were set on technology consistent with lowest achievable emission rate (LAER) which essentially reflects the lowest rate in any SIP or achieved in practice and are based upon the actual performance of the emissions units.

The District of Columbia's NO X RACT SIP Submission included a certification that the NO X RACT controls as amended in 2004 for implementation and approval into the District of Columbia SIP under the 1-hour and the 1997 ozone NAAQS are still RACT for purposes of meeting requirements for the 2008 8-hour ozone NAAQS, except for those sources for which the District of Columbia submitted new NO X RACT emissions limits in the 2008 NO X RACT Submission. These sources are: (1) Combustion turbines; and (2) the digester gas equipment at one major NO X source regarding the BPAWTP.

After evaluating the SIP revision submittal, EPA proposed finding that the previously adopted RACT controls continue to represent NO X RACT for the 2008 ozone NAAQS as required under sections 184(b)(2) and 182(f) except for the combustion turbine source-category and the source-specific limits at the BPAWTP.

As explained in more detail in the NPRM, since 1990, the District of Columbia implemented numerous RACT requirements under the 1-hour and the 1997 ozone standards. Many of those requirements are contained in section 805 of Title 20 of the DCMR. The District of Columbia's current NO X RACT SIP Submission included an amendment to section 805.4 to remove a NO X emissions limit for oil-fired, combustion turbines with a heat input over 100 mmBTU per hour and replace it with a lower NO X limit for any combustion turbine with heat input rating greater than 50 mmBTU per hour burning any combination of liquid fuels. As detailed in the NPRM, the revised section 805.4 sets a lower NO X emissions limits for a greater universe of combustion turbines by lowering the capacity threshold of eligible units and expanding coverage of the types of fuel burned by those units. The revised section 805.4 also removes the exemption for low utilization turbines—those operated for less than 500 hours per year. Thus, the NO X limits set in section 805.4 now apply to these sources.

The NPRM also explained that the revised section 805.4, in an effort to clean-up its SIP, removed CO emissions limits for combustion turbines of over 100 mmBTU heat input burning fuel oil because there are no longer any units over 100 mmBTU per hour heat input in the District of Columbia. The subject CO limits were initially included in the ozone RACT to ensure optimum combustion to reduce NO X emissions. See 64 FR 9272 (February 25, 1999) and 65 FR 81369 (December 26, 2000). As there are no longer any sources in the District of Columbia subject to the CO limits at issue, the revised section 805.4 will not result in relaxing an existing emissions limitation applicable to any existing emissions unit at a major stationary source.

On the potential impact on NO X emissions due to the removal of the subject CO limits and the siting of any new combustion turbines of over 100 mmBTU heat input burning fuel oil in the District of Columbia, the NPRM went on to note that for any such combustion turbines with a potential to emit increase over 25 tons per year (tpy) of NO X , the District of Colombia's SIP major source permitting program would require LAER and offsetting NO X emissions at a ratio of 1.3:1. See 20 DCMR Chapter 2, section 204 (Permit Requirements for Sources Affecting Non-attainment Areas), which is approved into the SIP at 40 CFR 52.470(c).

For the reasons detailed in the NPRM, EPA proposed finding that the lower NO X limits applicable to stationary combustion turbines burning any combination of liquid fuels along with the lower regulatory threshold and the removal of the CO limits for combustion turbines of over 100 mmBTU heat input burning fuel oil will be as protective of the ozone and NO X NAAQS and not hinder or impede attainment or maintenance of the those NAAQS in the District of Columbia as required by section 110(l) of the CAA.

Finally, the NPRM addressed the removal of the CO limits for combustion turbines of over 100 mmBTU heat input burning fuel oil in relationship to the CO NAAQS. The NPRM detailed that there are no longer any such units in the District of Columbia and that the CO levels in the Washington-Arlington-Alexandria (DC-VA-MD) area are well below the CO NAAQS. Further, in the event that any new stationary combustion turbine or turbines are located within the District of Columbia in the future that are a major stationary source of CO or would constitute a significant net emissions increase at an existing major stationary source of CO (or nitrogen dioxide), the new major stationary combustion turbine would be required to obtain a prevention of significant deterioration (PSD) permit under 40 CFR 52.21 and 52.499. The PSD permit would require best available control technology.

For the reasons detailed in the NPRM, EPA proposed finding that removal of the CO limits will not hinder or impede attainment or maintenance of the CO NAAQS in the District of Columbia as required by section 110(l) of the CAA.

In the NPRM, EPA proposed finding that the District of Columbia's 2008 NO X RACT Submission was reasonable and demonstrated that the District had adopted air pollution control strategies that represent RACT for the purposes of compliance with the 2008 8-hour ozone standard for all major stationary sources of NO X in the District in accordance with CAA requirements and the 2008 Ozone SIP Requirements Rule (80 FR 12264), and the latest available information. EPA proposed finding that the District of Columbia's SIP implements RACT for purposes of the 2008 ozone NAAQS with respect to all existing major stationary sources of NO X .

EPA also proposed finding that the revisions to previously SIP approved RACT requirements would result in equivalent or additional reductions in NO X emissions and should not interfere with any applicable requirement or reasonable further progress with the NAAQS or interfere with other applicable CAA requirements as required by section 110(l) of the CAA. EPA received comments which are addressed in Section III of this rulemaking action.

EPA received comments from two anonymous commenters during the comment period for the proposed rulemaking action.

Comment 1: A commenter stated: “No! We do not want weakening of air control standards, which are detrimental to human health and survival of the human race. EPA's job is ENVIRONMENTAL PROTECTION, as your name says. Why are you commenting on COSTS TO THE PUBLIC? Your name is not ECONOMIC PROTECTION AGENCY. We do not care what your organization thinks about SAVING PEOPLE MONEY. Your job is to do what is best for our ENVIRONMENT. We are tired of hearing about how you are involved in protecting our pocketbooks. I am demanding that you do your job, and protect our air, water and land. I am demanding that you stop letting our President damage our country. Do your duty to live up to the NAME ON YOUR DOOR.”

Response 1: Portions of this comment are not relevant to EPA's rulemaking action regarding the District of Columbia's 2008 NO X RACT Submission and need not be addressed. The Administrative Procedures Act requires that “that the agency . . . respond to `relevant' and `significant' public comments.” City of Portland v. E.P.A., 507 F.3d 706 (D.C. Cir. 2007). While we recognize the commenter's concern for environmental protection, it is important to note that EPA's approval of the District of Columbia's 2008 NO X RACT Submission is controlled by statutory and regulatory requirements. Among those requirements is the definition of RACT that requires an analysis of technical and economic feasibility. 40 CFR 51.100(o). It is also important to note that the approved 2008 NO X RACT SIP Revision does not weaken any existing environmental standard. By approving this SIP submittal, the required pollution controls for NO X from certain sources in the District of Columbia will remain the same or become more stringent, and consequently, approval of this SIP submittal should not interfere with any applicable requirement or reasonable further progress with the NAAQS or interfere with other applicable CAA requirements.

Comment 2: A commenter stated: “While DC has successfully, through its state implementation plan (SIP), achieved marginal attainment of Nitrogen Oxides (NO X ) under the 2008 8-hour Ozone standard in 2019, the issue being raised is that with the implementation of Reasonably Available Control Technology (RACT), Washington DC was only just now able to achieve a standard of Ozone levels that was set eleven years ago. According to the EPA, in November of 2017, 2,646 counties across the United States were in attainment of the 70 parts per billion ozone level specified in the 2015 NAAQS (Govinfo 2018). This provides proof that attainment is achievable through available means and any other course of action knowingly puts American citizens health at risk. Though the U.S. has made great strides in reducing gasses to blame for ground level ozone such as nitrogen oxides, the health effects will remain a detriment to American citizens as long as it remains in the air. By not holding Washington DC to the 2015 8-hour ozone NAAQS standards, the government, in specific, the EPA is allowing at least 75 parts per billion of ground level ozone to damage the lungs of children resulting in aggravated asthma, which leads to a lower attendance in schools, and even premature deaths, which occur [more] in infants and the elderly (EPA 2018). RACT is available that will allow less Nitrogen Oxides to be emitted into the air, resulting in lower levels of ground level Ozone. Retrofitting the largest emitters of NO X will cost money, but the result would be clearer skies and healthier citizens who can then contribute to American society and its economy.”

Response 2: While EPA agrees that the District of Columbia must continue to take efforts in attaining and maintaining all ozone NAAQS (including the 2015 ozone NAAQS), it is important to note that District of Columbia is addressing only requirements related to the 2008 ozone NAAQS in this SIP revision, and that EPA has concluded that the District is currently meeting all requirements for NO X RACT set forth by the CAA under the 2008 ozone NAAQS. As previously discussed, the District of Columbia's 2008 NO X RACT Submission demonstrated that the District has adopted air pollution control strategies that represent RACT for the purposes of compliance with the 2008 8-hour ozone standard for all major stationary sources of NO X in the District in accordance with the CAA, the 2008 Ozone SIP Requirements Rule, and the latest available information.

Comment 3: A commenter stated: “Although emissions limits are tied to power plant combustion turbines that are no longer in use and relevant, that should not end the EPA's push to lower CO emissions. The combustion turbines that the CO emission limits in this amendment refer to are ones that burn fuel oil at 100mmBTU per hour or more, compared to those in use which burn at 50mmBTU ( Federal Register 2019). Turbine combustion and cogeneration technology has advanced to the point where we have reached previous emission limit goals. While this accomplishment is promising, halting CO limits because the emission output is lower should not be an option. CO emission limits should be seriously considered for stationary sources with turbine combustion and cogeneration technology that utilizes turbines burning 50mmBTU of oil fuel per hour. The emissions may be less than what 100mmBTU turbines produce, but the lowest achievable emission rate (LAER) should be considered and emission limits implemented once more (EPA 2007). By not striving for the lowest available emission rates for both Nitrogen Oxides and Carbon Monoxide the EPA is allowing citizens to be exposed to an invisible threat that leads to higher rates of asthma, upper respiratory infections, cardiovascular diseases, and weighs heavily on the economic output of a plethora of Americans The cons far outweigh the pros in regards to the two issues presented above, and should be amended in a new rendition of Washington DCs State Implementation Plan.”

Response 3: As noted in the comment, there are no longer any combustion turbine units over 100 mmBTU per hour heat input in the District of Columbia, thus the deletion of CO emissions limits for such sources will not result in relaxing an existing emissions limitation applicable to any existing emissions unit at a major stationary source. As explained in the NPRM, the current CO levels in the Washington-Arlington-Alexandria, DC-VA-MD area are well below the CO NAAQS specified in 40 CFR 50.8. The maximum value recorded at any ambient air quality monitor in the Washington-Arlington-Alexandria, DC-VA-MD core based statistical area is only 27 percent (2.6 ppm CO) of the 9.5 ppm (8-hour average) CO NAAQS and less than 8 percent of the 35 ppm (1-hour average) CO NAAQS. It is, however, important to note that although there are no longer any units over 100 mmBTU per hour heat input in the District of Columbia, the CO NAAQS must continue to be met even with the removal of CO limits from section 805. In the event that the District of Columbia is found to be no longer attaining the CO NAAQS, a process would begin such that the District would implement SIP-approved contingency measures outlined in the Carbon Monoxide Maintenance Plan for the Metropolitan Washington, DC Area. See 70 FR 16958 (April 4, 2005).

Additionally, in the event that any new stationary combustion turbine or turbines are located within the District in the future that are a major stationary source of CO or would constitute a significant net emissions increase at an existing major stationary source of CO (or nitrogen dioxide), the new major stationary combustion turbine would be required to obtain a prevention of significant deterioration (PSD) permit under 40 CFR 52.21 and 52.499. The PSD permit would require best available control technology. EPA finds that removal of the CO limits will not hinder or impede attainment or maintenance of the CO NAAQS in the District of Columbia.

In response to the commenter's concern that the area is not striving for the lowest available emission rates for nitrogen oxides, we note that as a nonattainment area for ozone, the District of Columbia is required to follow nonattainment new source review requirements for new major stationary sources of NO X or volatile organic compounds, which includes a LAER requirement.

EPA is approving the District of Columbia's 2008 RACT Submission on the basis that the District of Columbia has met the NO X RACT requirements for the 2008 8-hour ozone NAAQS per CAA sections 182(f) and 184(b)(2). EPA is also approving source-specific NO X RACT determinations for the BPAWTP and the amendments to sections 199.1, 199.2, 805.1 and 805.4 of 20 DCMR.

The District of Columbia's SIP revision is based on: (1) Certification that for certain categories of sources, previously adopted RACT controls in the District of Columbia's SIP that were approved by EPA under the 1-hour ozone NAAQS and 1997 ozone NAAQS continue to be technically and economically feasible controls, and continue to represent RACT for the 2008 ozone NAAQS implementation purposes; (2) the adoption of new or more stringent regulations or controls into the District of Columbia's SIP that represent presumptive RACT control levels for certain categories of sources; (3) source specific emissions limits set for flares and an auxiliary boiler serving the BPAWTP and (4) the removal of CO emission limits for combustion turbines of over 100 mmBTU heat input burning fuel oil. EPA is approving the removal, in accordance with section 110 of the CAA, of provisions setting carbon monoxide emission limits for a category of stationary combustion turbines.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing for certain categories of NO X emissions at major stationary sources of NO X emissions to incorporate by reference both regulations adopted by the District of Columbia and source-specific RACT determinations under the 2008 8-hour ozone NAAQS found within a preconstruction permit. The amendments to and revision of 20 DCMR Chapters 1 and 8 are specified in Section V.A. of this preamble; the source specific information is provided in Section V.B. of this preamble.

EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

1. Specifically, EPA is incorporating by reference into 40 CFR 52.470(c): Amendments to 20 District of Columbia Municipal Regulations, Chapter 1, sections 199.1 and 199.2. These amendments include adding definitions in section 199.1 for “Duct burner,” “Gaseous fuel,” Heat recovery steam generator,” “Liquid fuel,” “Natural gas,” and “Stationary combustion turbine,” and include an amendment to section 199.2 to define the abbreviation “ppmvd.”

2. Amendments to 20 District of Columbia Municipal Regulations, Chapter 8, sections 805.1 and 805.4. These amendments would include:

a. Revising sections 805.1(a) and (a)(1);

b. Revising section 805.1(a)(1) to remove NO X emissions limits for stationary combustion turbines which have an energy input capacity of one hundred million (100,000,000) BTU and adding NO X emissions limitations for any stationary combustion turbine which commenced construction, modification, or reconstruction after February 18, 2005 and has a heat input rating greater than fifty million (50,000,000) BTU per hour;

c. Revising Section 805.1(a)(2) to remove CO emissions limits for stationary combustion turbines which have an energy input capacity of one hundred million (100,000,000) BTU per hour and adding NO X emissions limitations for any stationary combustion turbine which commenced construction, modification, or reconstruction on or before February 18, 2005 and has a heat input rating greater than fifty million (50,000,000) BTU per hour;

d. Adding a new section 805.1(a)(3) to set NO X emission limitations for any stationary combustion turbines with a heat input rating less than or equal to fifty million (50,000,000) BTU per hour;

e. Adding a new section 805.1(a)(4) to set NO X emission limitations for certain stationary combustion turbines with a heat input rating less than or equal to ten million (10,000,000) BTU per hour;

f. Adding new sections 805.1(a)(5) through (7) to add new restrictions on stationary combustion turbines;

g. Amending section 805.4(b) to replace requirements for stationary combustion turbines with an energy input capacity of one hundred million (100,000,000) BTU per hour or greater which is operated for less than five hundred (500) hours per year with testing and continuous monitoring requirements for any person required to comply with section 805.4.

These regulatory changes to sections 199 and 805 were adopted on November 27, 2018 and effective on the date of publication, December 14, 2018, in the District of Columbia Register (Vol. 65, Number 51, page 013499, December 14, 2018).

Specifically, EPA is incorporating by reference into 40 CFR 52.470(d) certain portions of Permit (No. 6372-C2/O) to Construct and Operate New Biosolids Handling Facilities issued to District of Columbia Water and Sewer Authority as redacted by the District of Columbia:

1. The first paragraph citing the pertinent permitting regulations and listing (redacted) the following significant components: One (1) Auxiliary Boiler (AB) rated at 62.52 mmBTU per hour (HHV) heat input, firing DG, One (1) Siloxane Destruction Flare (SF) rated at 6.14 MMBTU per hour heal input, firing DG; and Two (2) Emergency Flares rated at 126 mmBTU per hour heat input each, firing DG.

2. The NO X emissions limits listed in the table found in permit condition “j.” for the Auxiliary Boiler (AB), Siloxane Destruction Flare (SF) and Two (2) Emergency Flares. The hourly NO X emission limits for the Auxiliary Boiler (AB), Siloxane Destruction Flare (SF) and Two (2) Emergency Flares listed in Table 2 (as redacted) found under Condition III.

3. Conditions III.b.1.A.; III.b.3. A. and B.; III.b.3. C.i., iii and iv.; III.b.3.D.; III.b.3.E. except that relating to carbon monoxide/CO; III.b.3.F. except “and CO”; III.b.3.G, iv. and v. except the provision “Failure to demonstrate compliance through the testing may result in enforcement action.”; III.b.4.A.; III.b.4.B. iv. and v.; III.b.5. as redacted to strike “in addition to complying with Condition II(f)”; III.d., III.d.1.A; III.d.2.D; III.d.3.A. only the portion “Within 60 days of initial startup and once every five years thereafter, the Permittee shall conduct a Department- approved compliance source test at multiple loads of EF-l, EF-2, and SF in accordance with 40 CFR 60.8 or a similar protocol acceptable to the Department, to demonstrate compliance with the emissions limitations contained in Condition III(d)(1) of this permit;” III.d.3.B as redacted to exclude “though additional testing may be required at other times pursuant to Condition II(d)(2)”; III.d.3.C. (i), (iii) and (iv); III.d.3.D.; III.d.3.H.(iv); III.d.3.H.(v) except “Failure to demonstrate compliance through the test may result in enforcement action.”; III.d.4.A. except “including records of visual inspections,”; III.d.4.B. (ii) except “and CO”; III.d.4.B. (iv); and, III.d.5.A. as redacted to exclude “in addition to complying with Condition II(f).”

4. This permit was issued April 20, 2018.

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because it is not a significant action under Executive Order 12866.

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 24, 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, regarding the NO X RACT SIP for the District of Columbia under the 2008 ozone NAAQS, may not be challenged later in proceedings to enforce its requirements (See section 307(b)(2)).

40 CFR part 52 is amended as follows:

Throughout this document, wherever “we,” “us,” or “our” is used, it means the EPA.

On December 4, 2019, we proposed to approve updates to Ecology's general air quality regulations, submitted on November 5, 2019, as they applied to Ecology's direct jurisdiction and the jurisdiction of the Benton Clean Air Agency (84 FR 66363). We note that not all the updated general air quality regulations contained in Chapter 173-400 Washington Administrative Code (WAC) were submitted for approval as part of the November 5, 2019 SIP revision. Specifically, subsections WAC 173-400-030(30) [subsequently renumbered to (32)], WAC 173-400-030(36) [subsequently renumbered to (38)], and WAC 173-400-040(2) were not submitted by Ecology as part of this action. For those subsections, the versions previously approved by the EPA remain in the SIP. The comment period for the proposal ended January 3, 2020, and we received no comments.

We are approving and incorporating by reference in the Washington SIP at 40 CFR 52.2470(c) certain revisions to the following Chapter 173-400 WAC sections submitted on November 5, 2019:

• WAC 173-400-025, 173-400-030, 173-400-040, 173-400-050, 173-400-171, and 173-400-740, State effective September 16, 2018; and

• WAC 173-400-060 and 173-400-105, State effective November 25, 2018.

This approval is consistent with the exceptions requested by the State in the November 5, 2019 submittal as described in the proposal for this action and set forth in the amendments to 40 CFR part 52 below. We are also correcting a typographical error from a previous approval. In our November 17, 2015 final approval of changes to the Washington SIP, we approved WAC 173-400-081 (State effective April 1, 2011) to apply in Benton Clean Air Agency's jurisdiction. In a subsequent final action published October 6, 2016 (81 FR 69389), our prior approval of WAC 173-400-081 was inadvertently deleted from 40 CFR 52.2470(c), Table 4—Additional Regulations Approved for Benton Clean Air Agency (BCAA) Jurisdiction. We are amending 40 CFR 52.2470 to correct this error.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are finalizing the incorporation by reference as described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 10 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 the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully Federally-enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the 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, the EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

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

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

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

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

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

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

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

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

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because it does not address technical standards; and

• Does not provide the 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).

The SIP is not approved to apply on any Indian reservation land in Washington except as specifically noted below and is also not approved to apply in any other area where the 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). Washington's SIP is approved to apply on non-trust land within the exterior boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided State and local agencies in Washington authority over activities on non-trust lands within the 1873 Survey Area. Consistent with EPA policy, the EPA provided a consultation opportunity to the Puyallup Tribe in a letter dated March 21, 2018.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 24, 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)).

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

Throughout this document “we,” “us,” and “our” means the EPA.

On March 12, 2008, the EPA promulgated a new NAAQS for ozone, revising the levels of primary and secondary 8-hour ozone standards from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436). More recently, on October 1, 2015, the EPA promulgated and revised the NAAQS for ozone, further strengthening the primary and secondary 8-hour standards to 0.070 ppm (80 FR 65292). The October 1, 2015 standards are known as the 2015 ozone NAAQS.

Section 110(a)(1) of the CAA directs each state to make an infrastructure SIP submission to the EPA within 3 years of promulgation of a new or revised NAAQS. Infrastructure requirements for SIPs are provided in section 110(a)(1) and (2) of the CAA. Section 110(a)(2) lists the specific infrastructure elements that a SIP must contain or satisfy. The elements that are the subject of this action are described in detail in our notice of proposed rulemaking (NPRM) published on December 4, 2019 (84 FR 66352) for the State of Wyoming's infrastructure SIP revision, submitted to the EPA on January 3, 2019.

Comments on our December 4, 2019 NPRM were due on or before January 3, 2020. The EPA received two comments. The first comment was supportive of the proposed action. The second comment is discussed below.

Comment: The commenter appears to oppose approval of Wyoming's infrastructure SIP submission on the basis that it “would mean that Wyoming could build three new state dams,” and that the EPA cannot confirm “whether Wyoming has adequate regulations or authority or enforcement power in its SIP.” The commenter also requests that the EPA “check whether Wyoming has adequate funding to enforce its rules against powerful coal companies and the coal lobby of Wyoming” and that EPA, “disavow this SIP until all dams and hydroelectric power is rerouted to solar and wind power.”

Response: The commenter largely discusses subjects outside the scope of an infrastructure SIP action, and does not explain, nor provide a legal basis for disapproval. Although the commenter states that a determination of whether Wyoming has adequate regulations, authority, or enforcement power in its SIP should be based upon “rerouting of power,” the EPA notes that Wyoming's 2015 ozone NAAQS submittal was reviewed and found adequate to provide for the implementation, maintenance and enforcement of the subject NAAQS. Specifically, as thoroughly discussed in our analysis of the NPRM, Wyoming's SIP-approved Legal Authority Document (37 FR 10832, May 31, 1972) ( see also 40 CFR 52.2620(e), Rule No. (02) II; 41 FR 36652, Aug. 31, 1976) confirms that the State has adequate legal authority to enforce applicable laws, regulations and standards; to seek injunctive relief; and to prevent construction, modification, or operation of any stationary source at any location where emissions from such source will prevent the attainment or maintenance of a national standard or interfere with PSD requirements. Commenter has not identified any specific deficiencies in that finding or identified specific ways in which dams, hydroelectric, solar, or wind power would change that assessment.

Lastly, as to the commenter's request that the EPA check “whether Wyoming has adequate funding to enforce its rules against powerful coal companies and the coal lobby of Wyoming,” we note again that during our review of the State's submittal, we found that Wyoming does have adequate funding to carry out its SIP obligations and requirements. Specifically, and reiterating our analysis of Wyoming's submittal, the State receives CAA sections 103 and 105 grant funds through its Performance Partnership Agreement (PPA) along with required state matching funds to provide the funding necessary to carry out Wyoming's SIP requirements. Wyoming's PPA with the EPA (available for review in the docket) documents resources needed to carry out agreed upon environmental program goals, measures, and commitments, including developing and implementing appropriate SIPs for all areas of the State. The EPA and Wyoming annually update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. Furthermore, Wyoming Air Quality Standards and Regulations (WAQSR) Chapter 6, section 2(a)(v), Permit for construction, modification, operation, requires the owner and operator of each new major source or major modification to pay a fee sufficient to cover the cost of reviewing and acting on permit applications. Collectively, these WAQSR rules and PPA commitments provide satisfactory evidence that the State has adequate funding and legal authority to carry out the SIP and related issues. This funding and legal authority extends to all regulated emission sources, independent of any specific industry—be it the coal industry or any other CAA regulated industry.

The EPA is approving the following CAA section 110(a)(2) infrastructure elements of Wyoming's January 3, 2019 infrastructure SIP submission for the 2015 ozone NAAQS: (A), (B), (C), (D)(i)(II) Prong 3 Interstate transport—prevention of significant deterioration, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M). The EPA is not taking action at this time on (D)(i)(I) Prong 1 Interstate transport—significant contribution, and (D)(i)(I) Prong 2 Interstate transport—interference with maintenance; we intend to address (D)(i)(I) Prongs 1 and 2 in a separate, future action.

Finally, the EPA is also disapproving element (D)(i)(II) Prong 4 Interstate transport—visibility. CAA section 110(c)(1) provides that the EPA must promulgate a Federal Implementation Plan (FIP) within two years after finding that a state has failed to make a required submission or disapproving a state's SIP submission in whole or in part, unless the EPA approves a SIP revision correcting the deficiencies within that two-year period. As explained in our December 4, 2019 NPRM, this disapproval of prong 4 will not incur additional practical consequences for the State or the EPA because the existing FIP  1 already in place, due to preexisting deficiencies, satisfies the prong 4 requirements for this NAAQS. The aforementioned actions are tabulated by section 110(a)(2) elements in Table 1 below.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the 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);

• This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866;

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 24, 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)).

40 CFR part 52 is amended as follows:

Rulemaking Documents

For access to docket FMCSA-2019-0068 to read background documents and comments received, go to http://www.regulations.gov at any time, or to Docket Operations at U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

This rulemaking updates an incorporation by reference found at 49 CFR 385.4(b)(1) and referenced at 49 CFR 385.415(b). Section 385.4(b)(1) currently references the April 1, 2018, edition of CVSA's “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR part 173.403.” The Out-of-Service Criteria, while not regulations, provide uniform enforcement tolerances for roadside inspections to enforcement personnel nationwide, including FMCSA's State partners. In this final rule, FMCSA incorporates by reference the April 1, 2019, edition.

Thirteen updates distinguish the April 1, 2019, handbook edition from the 2018 edition. The updates are all described in detail in the October 2, 2019 notice of proposed rulemaking (NPRM) for this rule (85 FR at 52434-36). The incorporation by reference of the 2019 edition does not impose new regulatory requirements.

Congress has enacted several statutory provisions to ensure the safe transportation of hazardous materials in interstate commerce. Specifically, in provisions codified at 49 U.S.C. 5105(d), relating to inspections of motor vehicles carrying certain hazardous material, and 49 U.S.C. 5109, relating to motor carrier safety permits, the Secretary of Transportation is required to promulgate regulations as part of a comprehensive safety program on hazardous materials safety permits. The FMCSA Administrator has been delegated authority under 49 CFR 1.87(d)(2) to carry out the rulemaking functions vested in the Secretary of Transportation. Consistent with that authority, FMCSA has promulgated regulations to address the congressional mandate on hazardous materials. Those regulations on hazardous materials are the underlying provisions to which the material incorporated by reference discussed in this final rule is applicable.

In 1986, the U.S. Department of Energy and CVSA entered into a cooperative agreement to develop a higher level of inspection procedures, out-of-service conditions and/or criteria, an inspection decal, and a training and certification program for inspectors to conduct inspections on shipments of transuranic waste and highway route controlled quantities of radioactive material. CVSA developed the North American Standard Level VI Inspection Program for Transuranic Waste and Highway Route Controlled Quantities of Radioactive Material. This inspection program for select radiological shipments includes inspection procedures, enhancements to the North American Standard Level I Inspection, radiological surveys, CVSA Level VI decal requirements, and the “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR part 173.403.” As of January 1, 2005, all vehicles and carriers transporting highway route controlled quantities of radioactive material are regulated by the U.S. Department of Transportation. All highway route controlled quantities of radioactive material must pass the North American Standard Level VI Inspection prior to the shipment being allowed to travel in the U.S. All highway route controlled quantities of radioactive material shipments entering the U.S. must also pass the North American Standard Level VI Inspection either at the shipment's point of origin or when the shipment enters the U.S.

Section 385.415 of title 49, Code of Federal Regulations, prescribes operational requirements for motor carriers transporting hazardous materials for which a hazardous materials safety permit is required. Section 385.415(b) requires that motor carriers must ensure a pre-trip inspection is performed on each motor vehicle to be used to transport a highway route controlled quantity of a Class 7 (radioactive) material, in accordance with the requirements of CVSA's “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR part 173.403.”

According to 2012-2017 data from FMCSA's Motor Carrier Management Information System (MCMIS), approximately 3.5 million Level I—Level VI roadside inspections were performed annually. Nearly 97 percent of these were Level I, 1 Level II, 2 and Level III  3 inspections. During the same period, an average of 842 Level VI inspections were performed annually, comprising only 0.024 percent of all roadside inspections. On average, out-of-service violations were cited in only 10 Level VI inspections annually (1.19 percent), whereas on average, out-of-service violations were cited in 269,024 Level I inspections (25.3 percent), 266,122 Level II inspections (22.2 percent), and 66,489 Level III inspections (6.2 percent) annually. Based on these statistics, CMVs transporting transuranics and highway route controlled quantities of radioactive materials are clearly among the best maintained and safest CMVs on the highways today, due largely to the enhanced oversight and inspection of these vehicles because of the sensitive nature of the cargo being transported.

FMCSA published an NPRM on October 2, 2019 (84 FR 52432). Whereas the incorporation by reference found at 49 CFR 385.4(b)(1) and referenced at 49 CFR 385.415(b) concerns the April 1, 2018, edition of CVSA's “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR part 173.403,” the NPRM proposed to incorporate by reference the April 1, 2019, edition.

The 2019 edition identifies (1) driver-related violations of the FMCSRs that are so severe as to warrant placing the CMV driver out of service, (2) vehicle equipment-related violations of the FMCSRs that are so severe as to warrant placing the CMV out of service, and (3) unsafe conditions in the transportation of hazardous materials. The purpose of the publication is to provide inspection criteria for Federal and State motor carrier safety enforcement personnel to promote uniform and consistent inspection procedures of CMVs operated in commerce.

Thirteen updates distinguish the April 1, 2019, handbook edition from the 2018 edition. The updates are all described in detail in the NPRM (85 FR at 52434-36). The incorporation by reference of the 2019 edition does not impose new regulatory requirements.

FMCSA received one comment to the NPRM. CVSA commended FMCSA for publishing the NPRM, and encouraged FMCSA to finalize the rule and update the incorporation by reference because “the current reference of the April 1, 2018 edition is outdated and does not reflect the most up to date standard which was published on April 1, 2019.” In addition, CVSA stated that the handbook is reviewed and updated annually, and noted “that a new edition will be published on April 1, 2020, and encourages the agency to take the necessary actions to update the regulations accordingly at that time.”

FMCSA revises 385.4(b)(1) to update the reference from the April 1, 2018, edition to the April 1, 2019, edition of the “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR part 173.403.”

The FMCSRs, and any exceptions to the FMCSRs, apply only within the United States (and, in some cases, United States territories). Motor carriers and drivers are subject to the laws and regulations of the countries in which they operate, unless an international agreement states otherwise. Drivers and carriers should be aware of the regulatory differences among nations.

The CVSA is an organization representing Federal, State, and Provincial motor carrier safety enforcement agencies in United States, Canada, and Mexico. The Out-of-Service Criteria provide uniform enforcement tolerances for roadside inspections conducted in all three countries.

FMCSA has determined that this action is not a significant regulatory action under section 3(f) of E.O. 12866, Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011), Improving Regulation and Regulatory Review. In addition, this rule is not significant within the meaning of DOT regulations (84 FR 71714, December 27, 2019).The Office of Management and Budget (OMB) did not, therefore, review this document.

E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs,” does not apply to this action because it is a nonsignificant regulatory action, as defined in section 3(f) of E.O. 12866, and has zero costs; therefore, it is not subject to the “2 for 1” and budgeting requirements.

Pursuant to the Congressional Review Act (5 U.S.C. 801, et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a “major rule,” as defined by 5 U.S.C. 804(2). 4

Background

The regulations in title 50 of the Code of Federal Regulations at 50 CFR part 11 provide uniform rules and procedures for the assessment of civil penalties resulting from violations of certain laws and regulations enforced by the Service.

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (sec. 701 of Pub. L. 114-74) (Inflation Adjustment Act) requires Federal agencies to adjust the level of civil monetary penalties with an initial “catch up” adjustment through rulemaking and then make subsequent annual adjustments for inflation. The purpose of these adjustments is to maintain the deterrent effect of civil penalties and to further the policy goals of the underlying statutes.

Under section 4 of the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note, as amended by the Inflation Adjustment Act, each Federal agency is required to issue regulations adjusting for inflation the statutory civil monetary penalties (civil penalties) that can be imposed under the laws administered by that agency. The Inflation Adjustment Act provided that the initial “catch up adjustment” take effect no later than August 1, 2016, followed by subsequent adjustments to be made no later than January 15 every year thereafter. This final rule adjusts the civil penalty amounts that may be imposed pursuant to each statutory provision beginning on the date specified above in DATES .

On June 28, 2016, the Service published in the Federal Register an interim rule that revised 50 CFR part 11 (81 FR 41862) to carry out the Inflation Adjustment Act. The Service subsequently published a final rule to that interim rule on December 23, 2016 (81 FR 94274). The Service published final rules in 2017 and 2018 further adjusting the civil penalty amounts in 50 CFR 11.33 per OMB guidance. Most recently, we published a final rule on April 16, 2019, updating the civil penalty amounts with the 2019 inflation multiplier (84 FR 15525). This final rule adjusts the civil monetary penalty amounts that were listed in the 2019 final rule and subsequently codified at 50 CFR 11.33 by using the 2020 inflation multiplier provided to all Federal agencies by OMB (see below).

OMB issued a memorandum, M-20-05, entitled “Implementation of Penalty Inflation Adjustments for 2020, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015,” which provides the cost-of-living adjustment multiplier for 2020: 1.01764. Therefore, we multiplied each penalty in the table in 50 CFR 11.33 by 1.01764 to obtain the 2020 annual adjustment. The new amounts are reflected in the table in the rule portion of this document and replace the current amounts in 50 CFR 11.33.

This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.

In addition, in this final rule, we affirm the required determinations we made in the June 28, 2016, interim rule (81 FR 41862); for descriptions of our actions to ensure compliance with the following statutes and Executive Orders, see that rule:

• National Environmental Policy Act (42 U.S.C. 4321 et seq. );

• Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2));

• Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. );

• Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. );

• Executive Orders 12630, 12866, 12988, 13132, 13175, 13211, and 13563.

As stated above, under section 4 of the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note, as amended by the Inflation Adjustment Act, Public Law 114-74, 129 Stat. 584 (2015), each Federal agency is required to issue regulations adjusting for inflation the statutory civil monetary penalties that can be imposed under the laws administered by that agency. The Inflation Adjustment Act provided for an initial “catch up adjustment” to take effect no later than August 1, 2016, followed by subsequent adjustments to be made no later than January 15 every year thereafter. This final rule adjusts the civil penalty amounts that may be imposed pursuant to each statutory provision beginning on the effective date of this rule. To comply with the Inflation Adjustment Act, we are issuing these regulations as a final rule.

Section 553(b) of the Administrative Procedure Act (5 U.S.C. 551 et seq. ) provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for prior public comment. The Service finds that providing for public comment before issuing this rule is unnecessary as this rulemaking is a nondiscretionary action. The Service is required to publish this rule in order to update the civil penalty amounts by the specified formula described above. The Service has no discretion to vary the amount of the adjustment to reflect any views or suggestions provided by commenters. Since this update to the April 16, 2019, final rule (84 FR 15525) is merely ministerial, we find that pre-publication notice and public comment with respect to the revisions set forth in this rule is unnecessary. We also believe that we have good cause under 5 U.S.C. 553(d) to make this rule effective upon publication to meet the statutory deadline imposed by the Inflation Adjustment Act.

For the reasons described above, we amend part 11, subchapter B of chapter I, title 50 of the Code of Federal Regulations as set forth below.

We received an application from the Navy requesting five-year regulations and authorization to take multiple species of marine mammals. This rule establishes a framework under the authority of the MMPA (16 U.S.C. 1361 et seq. ) to allow for the authorization of take by Level B harassment of marine mammals incidental to the Navy's construction activities related to development of a new ammunition pier at Seal Beach, California, including impact and vibratory pile driving. Please see “Background” below for definitions of harassment.

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to five years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the “least practicable adverse impact” on the affected species or stocks and their habitat (see the discussion below in the “Mitigation” section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this final rule containing five-year regulations, and for any subsequent LOAs. As directed by this legal authority, this rule contains mitigation, monitoring, and reporting requirements.

Following is a summary of the major provisions of this rule regarding Navy construction activities. These measures include:

• Required monitoring of the construction areas to detect the presence of marine mammals before beginning construction activities;

• Shutdown of construction activities under certain circumstances to avoid injury of marine mammals; and

• Soft start for impact pile driving to allow marine mammals the opportunity to leave the area prior to beginning impact pile driving at full power.

The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq. ) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed incidental take authorization may be provided to the public for review.

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth.

The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.

On September 10, 2019, we received an adequate and complete request from the Navy requesting authorization for take of marine mammals incidental to construction activities related to development of a new ammunition pier at Seal Beach, California. On September 17, 2019 (84 FR 48914), we published a notice of receipt of the Navy's application in the Federal Register , requesting comments and information related to the request for 30 days. Our consideration of the Navy's request was informed by review by the Marine Mammal Commission, and the Navy submitted a revised, final version of the application on November 26, 2019. No formal comments were received during the public review period. We subsequently published a Notice of Proposed Rulemaking in the Federal Register on December 10, 2019 (84 FR 67404). Comments received during the public comment period on the proposed regulations are addressed in “Comments and Responses.”

The Navy plans to conduct construction necessary for development of a new ammunition pier at Naval Weapons Station (NWS) Seal Beach, California. Construction activities include construction of a new pile-supported pier, construction of a new breakwater and causeway, dredging of the turning basin and creation of a new navigation channel for public access, installation of new moorings and pile-supported mooring dolphins, and demolition of existing facilities. Among other activities, construction would include use of impact and vibratory pile driving, including installation and removal of steel, concrete, and timber piles. Hereafter (unless otherwise specified or detailed) we use the term “pile driving” to refer to both pile installation and pile removal. The use of both vibratory and impact pile driving is expected to produce underwater sound at levels that have the potential to result in harassment of marine mammals. The Navy requests authorization to take individuals of five species by Level B harassment. These regulations are valid for five years (2020-2025).

NWS Seal Beach is the U.S. Pacific Fleet's primary weapons station on the West Coast of the United States. As such, NWS Seal Beach has three primary missions: Storage of Navy and Marine Corps ammunition, missile systems maintenance, and loading and unloading of Navy warships and larger Coast Guard vessels. The existing wharf at NWS Seal Beach is past its design life—over 65 years old—and was constructed prior to the introduction of modern seismic codes. Seismic design deficiencies are of significant concern due to the proximity to active faults and high liquefaction potential of underlying soils. The current condition and configuration of the existing pier and turning basin limits the size and number of ships that can be loaded and unloaded with ammunition at the same time and presents safety and security concerns due to the proximity of naval munitions operations to civilian small boat traffic and the Pacific Coast Highway. Therefore, the planned construction activities are necessary to sustain and enhance mission capability by eliminating deficiencies associated with the condition, configuration, and capacity of the existing pier and turning basin.

In-water pile driving work is expected to require approximately three years, but could occur at any time during the five-year period of validity of these regulations. The Navy estimates installing approximately 900 primarily concrete piles in total in order to construct the new pier. Construction will include use of impact and vibratory pile driving. Aspects of construction activities other than pile driving are not anticipated to have the potential to result in incidental take of marine mammals because they are either above water or do not produce levels of underwater sound with likely potential to result in marine mammal disturbance.

These regulations are valid for a period of five years (2020-2025). The specified activities may occur at any time during the five-year period of validity of the regulations. Pile driving activity would be completed over an approximately three-year period that is not necessarily consecutive during the five-year period of validity of these regulations.

Pile driving would typically occur only from Monday through Friday during typical working hours ( i.e., during daylight hours). Estimated days of pile driving are based on a conservative production rate of approximately three piles per day for installation of 922 piles, i.e., 308 days. An additional 28 days is assumed for removal of piles. Therefore, the estimated number of total pile driving days is approximately 336 over the 5-year period. These totals include both extraction and installation of piles, and represent a conservative estimate of pile driving days. In a real construction situation, pile driving production rates would be maximized when possible and actual daily production rates may be higher, resulting in fewer actual pile driving days.

Construction activities at NWS Seal Beach will be located within Orange County, California, adjacent to the Port of Long Beach. The City of Seal Beach is situated between the Cities of Long Beach to the west and Huntington Beach to the east (see Figure 1-1 in the Navy's application). The specific site of the proposed construction activities is within Anaheim Bay, a small harbor that is completely enclosed by two jetties and land, aside from a narrow entrance channel (see Figure 1-2 of the Navy's application). For additional detail regarding the specified geographical region, please see our Notice of Proposed Rulemaking (84 FR 67404; December 10, 2019) and Section 2 of the Navy's application.

As described above, the Navy requested incidental take regulations for construction activities associated with development of a new ammunition pier at NWS Seal Beach, California. The entire project would include potential upgrades to the existing wharf to remain operational while the new pier is being built, the construction of a breakwater to reduce wave heights at the pier, a causeway, pile-supported mooring dolphins, a navigation channel for public boat access into and out of Huntington Harbor, dredging for the pier and Navy ship turning basin, and operational support buildings on and near the pier. Aspects of construction activities other than pile driving are not anticipated to have the potential to result in incidental take of marine mammals because they are either above water or do not produce levels of underwater sound with likely potential to result in marine mammal disturbance. A detailed description of the Navy's planned activities was provided in our Notice of Proposed Rulemaking (84 FR 67404; December 10, 2019) and is not repeated here. No changes have been made to the specified activities described therein.

In-water pile driving activities with the potential to cause take of marine mammals include removal of existing navigation piles, installation of mooring anchors, and installation of piles required for the new ammunition pier. Only pile extraction and installation using vibratory and impact pile drivers is expected to have the potential to result in incidental take of marine mammals. Therefore, only vibratory and impact pile driving are carried forward for further analysis. Please see Table 1-1 of the Navy's application for a summary of piles to be installed and/or removed. The navigation piles that currently guide public vessel traffic, consisting of two timber pile clusters (dolphins) of approximately 8 to 10 piles each plus three additional single steel pipe piles, would be removed. All piles are approximately 24-inch (in) (61-centimeter (cm)) diameter. Timber piles are likely to be removed by cutting at the mudline, while the three steel piles would be extracted using the vibratory driver. However, it is possible that some timber piles may need to be removed using vibratory extraction. Therefore, we assume for purposes of analysis that all piles will be removed using vibratory extraction.

The planned indicator pile program would involve impact driving 17 24-in octagonal concrete piles in order to verify the driving conditions and establish the final driving lengths prior to fabrication of the final production piles that would be used to construct the new pier.

The new pier itself would be pile-supported with a total of approximately 900 piles (concrete and concrete-filled fiberglass) of various sizes connected to a cast‐in‐place concrete deck and beams. The majority of these production piles are expected to be jetted to within 1.5-3 meters (m) of tip elevation and then completed via impact driving. Piles are expected to largely be 24-in octagonal or square.

There will be a total of five new moorings installed, with two of those moorings outside of the new breakwater. Use of a vibratory hammer is required to install “plate anchors” that provide permanent secure holdings for planned mooring buoys. Plate anchors consist of a steel plate that is driven to project depth (9-12 m) beneath the seafloor. The anchor is driven by use of a 12-in (30-cm) steel beam called a “follower.” The follower is slotted on the bottom, fits into the plate anchor, and together the assembly consisting of the plate anchor and follower are driven into the substrate. Once the assembly has been driven to the required depth using a combination of impact and vibratory driving, the follower is removed using vibratory extraction, leaving the plate anchor at the required depth. First, the plate anchor is driven with a vibratory hammer to within several feet of final depth (maximum driving time approximately 45 minutes). An impact hammer is then used to drive the plate anchor to final elevation (potentially requiring up to an additional 45 minutes). Finally, the follower is extracted using a vibratory hammer (up to a maximum of 30 minutes).

We published a Notice of Proposed Rulemaking in the Federal Register on December 10, 2019 (84 FR 67404). During the 30-day comment period, we received a letter from the Marine Mammal Commission (Commission). The comments and our responses are described below. For full detail of the comments and recommendations, please see the comment letter, which is available online at: www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-ammunition-pier-and-turning-basin-naval .

Comment: To better account for the number of cetaceans that have the potential to occur within the Level B harassment zones and to minimize unnecessary delays in completing the activities should the authorized takes be met, the Commission recommends that NMFS increase the numbers of cetacean takes in the final rule.

Response: We concur with the recommendation and have increased the take numbers for authorization as suggested by the Commission. Please see “Changes from Proposed to Final Regulations” below for a description of the change and Table 6 for revised take numbers.

Comment: The Commission recommends that NMFS include in the final rule certain requirements that the Commission deems “standard.” Specifically, the Commission recommends that we include requirements that the Navy (1) conduct pile-driving and -removal activities during daylight hours only and (2) if the entire shut-down zone(s) is not visible due to darkness, fog, or heavy rain, delay or cease pile-driving and -removal activities until the zone(s) is visible and, separately, a requirement to delay or cease pile-driving and -removal activities, if a species for which take has not been authorized or for which the authorized number of takes has been met is observed approaching or within the Level B harassment zone.

Response: We do not fully concur with the Commission's recommendations, or with their underlying justification, and do not adopt them as stated. However, we do clarify in the final regulatory text that the required shutdown zones must remain visible during impact pile driving, though this need not preclude pile driving at night with sufficient illumination. While the Navy has no intention of conducting pile driving activities at night, it is unnecessary to preclude such activity should the need arise ( e.g., on an emergency basis or to complete driving of a pile begun during daylight hours, should the construction operator deem it necessary to do so). Further, while acknowledging that prescribed mitigation measures for any specific action (and an associated determination that the prescribed measures are sufficient to achieve the least practicable adverse impact on the affected species or stocks and their habitat) are subject to review by the Commission and the public, any determination of what measures constitute “standard” mitigation requirements is NMFS' alone to make. Even in the context of measures that NMFS considers to be “standard” we reserve the flexibility to deviate from such measures, depending on the circumstances of the action. We disagree with the statement that a prohibition on pile driving activity outside of daylight hours is necessary to meet the MMPA's least practicable adverse impact standard, and with the apparent premise that such a prohibition is necessary to preclude unauthorized taking by Level A harassment. As the Commission is aware, the mere appearance of an animal within a shutdown zone does not indicate that onset of auditory injury ( i.e., Level A harassment) has occurred, as the calculation of Level A harassment zones for pile driving activity (generally dictated by cumulative sound exposure level rather than peak pressure level) assumes that an animal has accumulated energy over some assumed duration (or been exposed at a given distance to some assumed number of pile strikes).

We similarly disagree with the need to explicitly articulate a requirement to delay or cease activities if a species for which take has not been authorized or for which the authorized number of takes has been met is observed approaching or within the Level B harassment zone. All authorizations state explicitly the species authorized for taking and the numbers, by type ( e.g., Level A or B harassment), of take incidents authorized, while also explicitly stating that the authorization is limited to those species and numbers. Separately, all authorizations already contain the redundant admonition that any taking of a type more severe than authorized or exceeding the stated numbers is prohibited. Therefore, the Commission's recommended language is doubly redundant.

Comment: The Commission recommends that NMFS (1) include in the preamble and any issued LOA the modeled extents of the Level B harassment zones for impact installation of 12-in piles and vibratory removal of the 12-in piles and 24-in steel pipe piles based on Table 6-4 in the application and (2) include in the preamble and regulatory text of the final rule a reporting requirement to extrapolate the numbers of Level B harassment takes, not only to those portions of the Level B harassment zones that the PSOs are unable to monitor within Anaheim Bay during the various activities but also those portions outside the bay when the 12-in I-beams are removed.

Response: We concur with and adopt the recommendation to include the referenced modeled Level B harassment zones. Please see Table 5. We do not adopt the recommended reporting requirement. The Navy has committed to monitoring the extent of waters within Anaheim Bay (or the extent of the Level B harassment zone, when encompassing a smaller area within Anaheim Bay), so no extrapolation is necessary within that area. Regarding the suggestion that take is expected to occur within waters outside of Anaheim Bay and, therefore, extrapolation is necessary in order to estimate total take, we described in detail in the preamble to the proposed rule the basis for our assumption that no take would occur beyond the waters of Anaheim Bay. The Commission does not address this assumption in their letter.

As noted by the Commission, the modeled distance to the Level B harassment isopleths for vibratory driving of 12-in steel beams outside of the planned breakwater is approximately 1.5 kilometers (km), meaning that, depending on location within the outer waters of Anaheim Bay, such isopleths could extend as much as approximately 1 km outside of the Bay. However, this assumption ignores the realistic environmental context of this location. As we described in the preamble to the proposed rule, the Anaheim Bay entrance is located approximately 8 km from the Ports of Los Angeles/Long Beach, which together form one of the busiest container ports in the world, and is situated between the entrances to the Huntington Beach and Alamitos/Long Beach marinas, which together have more than 2,000 boat slips. Additionally, an offshore petroleum extraction platform is located approximately 1.4 km offshore from the Anaheim Bay entrance. Although appropriate background noise measurements are not available for the immediate vicinity of the Anaheim Bay entrance, it is likely that, at times, the noise from this vibratory driving activity may not exceed the level of extant background noise. Moreover, given the narrow entrance to jetty-enclosed Anaheim Bay, only a narrow strip of ensonified area could potentially extend beyond that entrance. When coupled with the short duration of this specific activity component (less than two hours per day for two days), there is a very low likelihood that any animal could be exposed to this noise. Finally, and most importantly, considering the thousands of ship transits passing nearby per year, near-constant activity of pilot vessels, tug boats, and recreational vessels, and noise from moored vessels and the production platform, we reasonably assume the noise environment in waters immediately adjacent to the Anaheim Bay entrance to be sufficiently loud that the addition of another, similar low-level industrial continuous noise source is not reasonably likely to cause an exposed animal to respond in a manner appropriately equated to “take,” as defined under the MMPA.

In summary, there is a very low likelihood that any animal could be exposed to noise exceeding the harassment threshold outside of Anaheim Bay and, in the event that such exposure occurred, we have determined it not reasonably likely that the exposed animal would respond in a way equivalent to harassment under the MMPA. Therefore, there is no need to estimate take that may occur outside of Anaheim Bay.

Comment: The Commission recommends that NMFS ensure that the Navy keeps a running tally of the total takes for each species to comply with the regulations.

Response: We agree that the Navy must ensure they do not exceed authorized takes. However, NMFS is not responsible for ensuring that the Navy does not operate in violation of an issued Letter of Authorization.

Comment: The Commission recommends that NMFS include in the final rule reporting requirements consistent with certain specific authorizations cited in their letter.

Response: We have revised the specific reporting language referenced by the Commission as recommended. Please see “Changes from Proposed to Final Regulations” below for a description of the change and “Monitoring and Reporting” for additional detail regarding these requirements.

The only changes from the proposed to final regulations are those described in the responses to comments, including increases to certain authorized take numbers, clarification that impact pile driving must cease or be delayed if shutdown zone visibility is impaired, and minor revisions to descriptions of information that must be included in required reporting.

As recommended by the Commission, we have increased the annual numbers of cetacean takes from 220 to 336 for bottlenose dolphins, 336 to 454 for common dolphins, and 7 to 11 takes for gray whales in the final rule.

As recommended by the Commission, we have revised descriptions of information that must be included in required reporting. These requirements were described as follows in the proposed rule:

• Date and time that monitored activity begins or ends;

• Construction activities occurring during each observation period;

• Weather parameters ( e.g., wind speed, percent cloud cover, visibility);

• Water conditions ( e.g., sea state, tide state);

• Species, numbers, and, if possible, sex and age class of marine mammals;

• Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;

• Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;

• Description of implementation of mitigation measures ( e.g., shutdown or delay);

• Locations of all marine mammal observations; and

• Other human activity in the area.

Descriptions of these requirements have been revised as follows:

• Dates and times (begin and end) of all marine mammal monitoring;

• Construction activities occurring during each daily observation period, including how many and what type of piles were driven or removed and by what method ( i.e., impact or vibratory);

• Weather parameters and water conditions during each monitoring period ( e.g., wind speed, percent cover, visibility, sea state);

• The number of marine mammals observed, by species, relative to the pile location and if pile driving or removal was occurring at time of sighting;

• Age and sex class, if possible, of all marine mammals observed;

• PSO locations during marine mammal monitoring;

• Distances and bearings of each marine mammal observed to the pile being driven or removed for each sighting (if pile driving or removal was occurring at time of sighting);

• Description of any marine mammal behavior patterns during observation, including direction of travel;

• Number of individuals of each species (differentiated by month as appropriate) detected within the monitoring zone, and estimates of number of marine mammals taken, by species (a correction factor may be applied to total take numbers, as appropriate);

• Detailed information about any implementation of any mitigation triggered ( e.g., shutdowns and delays), a description of specific actions that ensued, and resulting behavior of the animal, if any;

• Description of attempts to distinguish between the number of individual animals taken and the number of incidences of take, such as ability to track groups or individuals; and

• An extrapolation of the estimated takes by Level B harassment based on the number of observed exposures within the Level B harassment zone and the percentage of the Level B harassment zone that was not visible, when applicable.

We have reviewed the Navy's species descriptions—which summarize available information regarding status and trends, distribution and habitat preferences, behavior and life history, and auditory capabilities of the potentially affected species—for accuracy and completeness and refer the reader to Sections 3 and 4 of the Navy's application, instead of reprinting the information here. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SAR; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments ) and more general information about these species ( e.g., physical and behavioral descriptions) may be found on NMFS's website ( www.fisheries.noaa.gov/find-species ).

Table 1 lists all species with expected potential for occurrence in the specified geographical region where the Navy proposes to conduct the specified activities and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2019). PBR, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population, is considered in concert with known sources of ongoing anthropogenic mortality (as described in NMFS's SARs).

Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. All managed stocks in the specified geographical regions are assessed in NMFS's U.S. Pacific SARs. All values presented in Table 1 are the most recent available at the time of writing and are available in the 2018 SARs.

Five species (with six managed stocks) are considered to have the potential to be affected by Navy activities. A significantly more diverse marine mammal fauna occurs in deeper offshore waters of the specified geographical region. However, these additional species have not been observed in the vicinity of the action area and, for reasons described previously, are not anticipated to potentially be affected by the specified activity. For additional detail, please see section 3 of the Navy's application. We note that one additional species—the Pacific white-sided dolphin ( Lagenorhynchus obliquidens )—has been observed in the vicinity of the entrance to Anaheim Bay. However, authorization of take for this species was not requested by the Navy due to their seasonal and generally rare occurrence in the area. In addition, the sea otter ( Enhydra lutris ) is found in California coastal waters. However, sea otters are managed by the U.S. Fish and Wildlife Service and are not considered further in this document.

Marine mammals do not regularly use Anaheim Bay for any purpose, and there is no known habitat of any importance (including pinniped haul-outs) located within Anaheim Bay. The Navy has conducted a semi-regular monitoring effort within Anaheim Bay over the past several years. This monitoring effort is the primary source of information regarding marine mammal occurrence therein. Additional detail regarding the affected species and stocks, including local occurrence data, was provided in our Notice of Proposed Rulemaking (84 FR 67404; December 10, 2019) and is not repeated here.

Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities ( e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007) recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Note that no direct measurements of hearing ability have been successfully completed for mysticetes ( i.e., low-frequency cetaceans). NMFS (2018) describes generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 dB threshold from the normalized composite audiograms, with the exception for lower limits for low-frequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. The functional groups and the associated frequencies are indicated below (note that these frequency ranges correspond to the range for the composite group, with the entire range not necessarily reflecting the capabilities of every species within that group):

• Low-frequency cetaceans (mysticetes): Generalized hearing is estimated to occur between approximately 7 hertz (Hz) and 35 kilohertz (kHz);

• Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): Generalized hearing is estimated to occur between approximately 150 Hz and 160 kHz;

• High-frequency cetaceans (porpoises, river dolphins, and members of the genera Kogia and Cephalorhynchus; including two members of the genus Lagenorhynchus, on the basis of recent echolocation data and genetic data): Generalized hearing is estimated to occur between approximately 275 Hz and 160 kHz;

• Pinnipeds in water; Phocidae (true seals): Functional hearing is estimated to occur between approximately 50 Hz to 86 kHz; and

• Pinnipeds in water; Otariidae (eared seals): Functional hearing is estimated to occur between 60 Hz and 39 kHz.

For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Five marine mammal species (three cetacean and two pinniped (one otariid and one phocid) species) have the potential to co-occur with Navy construction activities. Please refer to Table 1. Of the three cetacean species that may be present, one is classified as a low-frequency cetacean (gray whale) and two are classified as mid-frequency cetaceans (dolphins).

Sections 6 and 9 of the Navy's application include a comprehensive summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat, including specific discussion of potential effects to marine mammals from noise produced through pile driving. We have reviewed the Navy's discussion of potential effects for accuracy and completeness in its application and refer to that information rather than repeating it here. Alternatively, NMFS has included a lengthy discussion of the potential effects of noise on marine mammals, including specifically from pile driving, in numerous other Federal Register notices. Please see, e.g., 83 FR 9366 (March 5, 2018); 84 FR 54867 (October 11, 2019); 82 FR 36360 (August 4, 2017), or view documents available online at www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.

The “Estimated Take” section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by the specified activity. The “Negligible Impact Analysis and Determination” section includes an analysis of how these activities will impact marine mammals and considers the content of this section, the “Estimated Take” section, and the “Mitigation” section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations. We also provided additional description of sound sources in our Notice of Proposed Rulemaking (84 FR 67404; December 10, 2019).

This section provides an estimate of the number of incidental takes for authorization, which will inform both NMFS's consideration of whether the number of takes is “small” and the negligible impact determination.

Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

Take of marine mammals incidental to Navy construction activities could occur as a result of Level B harassment only. Below we describe how the potential take is estimated.

We provided discussion of relevant sound thresholds in our Notice of Proposed Rulemaking (84 FR 67404; December 10, 2019) and do not repeat the information here. Generalized acoustic thresholds based on received level are used to estimate the onset of Level B harassment. These thresholds are 160 dB rms (intermittent sources) and 120 dB rms (continuous sources). Please see Table 2 for Level A harassment (auditory injury) criteria.

Sound Propagation —We provided discussion of relevant propagation considerations in our Notice of Proposed Rulemaking (84 FR 67404; December 10, 2019) and do not repeat the information here. As discussed in the proposed rule, site-specific propagation modeling was performed on behalf of the Navy by Dr. Peter Dahl (see “Modeling of Sound Propagation from Pile Driving Marine Construction at Seal Beach,” available online at www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-ammunition-pier-and-turning-basin-naval ). This modeling approach accounts for factors such as depth, substrate, and frequency-dependency, and was performed for propagation associated with impact driving of 24-in concrete piles and 12-in steel beams, and for vibratory driving of 30-in steel piles (as proxy for vibratory installation of 12-in steel beams and removal of 24-in steel piles). Propagation loss associated with vibratory removal of 24-in timber piles was not modeled, but rather represented through an assumption of practical spreading loss (4.5 dB reduction in sound level for each doubling of distance).

The above-referenced propagation analysis is provided for a more realistic understanding of actual ensonification effects at multiple specific locations within Anaheim Bay due to impact driving of concrete piles, impact and vibratory driving of steel beams, and vibratory driving of steel pipe piles. These actual zones are depicted in Figures 6-4 through 6-7 of the Navy's application. This analysis indicates that, for vibratory installation of piles seaward of the intended breakwater, maximum Level B harassment isopleth distances would be less than 1.5 km. However, when accounting for the expected noise environment outside of Anaheim Bay, we assume that any sound above harassment thresholds that could propagate outside of the confines of Anaheim Bay would either not generally be discernible to marine mammals, or would not present a sufficiently great signal to noise ratio such that behavioral harassment would be the likely outcome. Therefore, we assume that potential incidental take of marine mammals resulting from the specified activity may occur only within Anaheim Bay. Assumed isopleth distances are given in Table 5.

Sound Source Levels —We provided discussion of source level considerations in our Notice of Proposed Rulemaking (84 FR 67404; December 10, 2019) and do not repeat the information here. No changes have been made to the source level selections described in the proposed rule and shown in Table 3.

Level A Harassment —In order to assess the potential for injury on the basis of the cumulative SEL metric, one must estimate the total strikes (impact driving) or the total driving duration (vibratory driving) over which energy is assumed to accumulate. Table 4 presents an estimate of average strikes per day; average strikes per day and average daily duration values are used in the exposure analyses. Values given in Table 4 are engineering assumptions provided by the Navy.

Delineation of potential injury zones on the basis of the peak pressure metric was performed using the SPL(peak) values provided in Table 3 above. Source levels for peak pressure are unweighted within the generalized hearing range, while SEL source levels are weighted according to the appropriate auditory weighting function. As discussed in detail in the Notice of Proposed Rulemaking (84 FR 67404; December 10, 2019), delineation of potential injury zones on the basis of the cumulative SEL metric for vibratory driving was performed using the NMFS User Spreadsheet. This relatively simple approach will typically result in higher predicted exposures for broadband sounds, since only one frequency is being considered, compared to exposures associated with the ability to fully incorporate the Technical Guidance's weighting functions. Note that, for use in delineating assumed Level A harassment zones through use of the User Spreadsheet, practical spreading was assumed, which is an additional conservative assumption.

In consideration of the assumptions relating to sound source levels, propagation, and pile driving rates, notional radial distances to relevant thresholds were calculated (Table 5). Please note that Table 5 in the proposed rule included calculated rather than modeled distances for certain piles. As recommended by the Commission, Table 5 is revised to include only the relevant modeled distances. However, these distances are sometimes constrained by topography. Actual notional ensonified zones, calculated using site-specific propagation modeling (Dahl, 2018) are shown in Figures 6-4 to 6-7 of the Navy's application. For production piles, these zones are modeled on the basis of a centrally-located, notional pile. Note that these figures assume the presence of the breakwater that will be constructed prior to pile driving activity.

Available information regarding marine mammal occurrence at NWS Seal Beach, based on local observational effort, was summarized in the Notice of Proposed Rulemaking (84 FR 67404; December 10, 2019). Given the small area of Anaheim Bay, infrequent occurrence of marine mammals, and limited observational data available, we do not use these data to support calculation of density values, but rather use the maximum observed group size in conjunction with the expected days of pile driving to develop take estimates. The Navy assumes a total of 336 days of pile driving activity over the 5-year period of effectiveness of this proposed rule. However, the total days are assumed to occur over a three-year period during the five years. Therefore, the Navy assumes 112 pile driving days per year for 3 years.

To quantitatively assess exposure of marine mammals to noise from pile driving activities, the Navy used two methods. For pinniped species, which are assumed to have the potential to occur on any day of pile driving, the maximum group size is multiplied by the total annual pile driving days to generate the annual take estimate. For cetacean species, whose occurrence is assumed to be more sporadic in nature, the assumed group size is multiplied by an assumed proportion of total annual pile driving days. The assumed proportion reasonably reflects the observational data available for Anaheim Bay. This calculation is performed as: 112 Annual pile driving days/5 days per week/4 weeks per month × assumed number of monthly days present. Given the small calculated Level A harassment zone sizes, we assume that no Level A harassment is likely to occur, for any species. The required mitigation measures further reduce the low likelihood that any incidents of Level A harassment would occur, and none may be authorized under these regulations.

California Sea Lion —California sea lions are regularly observed, typically as individuals or in pairs. However, a maximum group of six sea lions was observed in Anaheim Bay. Therefore, the Navy estimates take as six sea lions per day for 112 days annually, yielding an estimate of 672 incidents of take annually and 2,016 incidents over the duration of the rule.

Harbor Seal —Individual harbor seals are infrequently observed in Anaheim Bay. However, as a relatively common coastal pinniped, the Navy assumes that one harbor seal could be present on each day of pile driving. Therefore, the Navy estimates take as 1 seal per day for 112 days annually, yielding an estimate of 112 incidents of take annually and 336 incidents over the duration of the rule.

Bottlenose Dolphin —The Navy assumes that groups of up to ten bottlenose dolphins may occur in Anaheim Bay on six occasions per month, yielding an annual estimate of 336 incidents of take, and 1,008 over the duration of the rule. Here we present an example calculation: 112 days of annual pile driving/5 days pile driving per week/4 weeks per month × 10 animals present on 6 days per month = 336 incidents of take per year. These dolphins are assumed to be from the California coastal stock of bottlenose dolphin.

Common Dolphin —The Navy assumes that groups of up to nine common dolphins may occur in Anaheim Bay on ten occasions per month, yielding an annual estimate of 454 incidents of take, and 1,361 over the duration of the rule. These dolphins could be from either the California/Oregon/Washington stock of common dolphin or from a subspecies stock, the eastern North Pacific long-beaked common dolphin.

Gray Whale —Individual gray whales have rarely been observed in the vicinity of the entrance to Anaheim Bay. The Navy assumes that a single gray whale may occur in Anaheim Bay on two occasions per month, yielding an annual estimate of eleven incidents of take, and 34 over the duration of the rule.

The total numbers of take for authorization for all species is summarized in Table 6 below. These numbers were revised on the basis of comment from the Commission, as discussed in “Comments and Responses.” No authorization of take by Level A harassment is expected, nor may take by Level A harassment be authorized under the rule.

Under Section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (“least practicable adverse impact”). NMFS does not have a regulatory definition for “least practicable adverse impact.” However, NMFS's implementing regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).

In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, we carefully consider two primary factors:

(1) The manner in which, and the degree to which, implementation of the measure(s) is expected to reduce impacts to marine mammal species or stocks, their habitat, and their availability for subsistence uses. This analysis will consider such things as the nature of the potential adverse impact (such as likelihood, scope, and range), the likelihood that the measure will be effective if implemented, and the likelihood of successful implementation.

(2) The practicability of the measure for applicant implementation. Practicability of implementation may consider such things as cost, impact on operations, personnel safety, and practicality of implementation.

The mitigation strategies described below largely follow those required and successfully implemented under previous incidental take authorizations issued in association with similar construction activities. Estimated zones of influence (ZOI; see “Estimated Take”) were used to develop mitigation measures for pile driving activities. Background discussion related to underwater sound concepts and terminology is provided in the section on “Description of Sound Sources,” earlier in this preamble. The ZOIs were used to inform mitigation zones that would be established to prevent Level A harassment and to monitor Level B harassment.

In addition to the specific measures described later in this section, the Navy will conduct briefings for construction supervisors and crews, the marine mammal monitoring team, and Navy staff prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, the marine mammal monitoring protocol, and operational procedures.

As described previously, the Navy will conduct construction activities only during daylight hours. This is a voluntary description by the Navy of expected construction scheduling that we do not treat as an absolute requirement. Therefore, this commitment is not considered in making our determinations and is not included in the regulatory text found at the end of this preamble.

The following measures would apply to the Navy's mitigation through shutdown and disturbance zones:

Shutdown Zone —The purpose of a shutdown zone is to define an area within which shutdown of activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area), thus preventing some undesirable outcome, such as auditory injury or behavioral disturbance of sensitive species (serious injury or death are unlikely outcomes even in the absence of mitigation measures). For all pile driving activities, the Navy will establish a minimum shutdown zone with a radial distance of 10 m. This minimum zone is intended to prevent the already unlikely possibility of physical interaction with construction equipment and to establish a precautionary minimum zone with regard to acoustic effects.

In most cases, the minimum shutdown zone of 10 m is expected to contain the area in which auditory injury could occur. In all circumstances where the predicted Level A harassment zone exceeds the minimum zone, the Navy will implement a shutdown zone equal to the predicted Level A harassment zone (see Table 5). In all cases, predicted injury zones are calculated on the basis of cumulative sound exposure, as peak pressure source levels produce smaller predicted zones.

Injury zone predictions generated using the optional user spreadsheet are precautionary due to a number of simplifying assumptions. For example, the spreadsheet tool assumes that marine mammals remain stationary during the activity and does not account for potential recovery between intermittent sounds. In addition, the tool incorporates the acoustic guidance's weighting functions through use of a single-frequency weighting factor adjustment intended to represent the signal's 95 percent frequency contour percentile ( i.e., upper frequency below which 95 percent of total cumulative energy is contained; Charif et al., 2010). This will typically result in higher predicted exposures for broadband sounds, because only one frequency is being considered, compared to exposures associated with the ability to fully incorporate the guidance's weighting functions.

Disturbance Zone —Disturbance zones are the areas in which sound pressure levels equal or exceed 160 and 120 dB rms (for impact and vibratory pile driving, respectively). Regarding vibratory driving occurring outside the breakwater, we assume that the disturbance zone is truncated at the entrance to Anaheim Bay. Disturbance zones provide utility for monitoring conducted for mitigation purposes ( i.e., shutdown zone monitoring) by establishing monitoring protocols for areas adjacent to the shutdown zones. Monitoring of disturbance zones enables observers to be aware of and communicate the presence of marine mammals in the project area but outside the shutdown zone, and thus prepare for potential shutdowns of activity. The primary purpose of disturbance zone monitoring is for documenting incidents of Level B harassment. Disturbance zone monitoring is discussed in greater detail later (see “Monitoring and Reporting”). Nominal radial distances for disturbance zones are shown in Table 5.

In order to document observed incidents of harassment, monitors record all marine mammal observations, regardless of location. The observer's location and the location of the pile being driven are known, and the location of the animal may be estimated as a distance from the observer and then compared to the location from the pile. It may then be estimated whether the animal was exposed to sound levels constituting incidental harassment on the basis of predicted distances to relevant thresholds in post-processing of observational data, and a precise accounting of observed incidents of harassment created.

Monitoring Protocols —Monitoring will be conducted before, during, and after pile driving activities. In addition, observers will record all incidents of marine mammal occurrence, regardless of distance from activity, and monitors will document any behavioral reactions in concert with distance from piles being driven. Observations made outside the shutdown zone will not result in shutdown; that pile segment will be completed without cessation, unless the animal approaches or enters the shutdown zone, at which point all pile driving activities will be halted. Monitoring will take place from 30 minutes prior to initiation through 30 minutes post-completion of pile driving activities. Pile driving activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than 30 minutes.

The following additional measures apply to visual monitoring:

(1) Monitoring will be conducted by qualified, trained protected species observers, who will be placed at the best vantage point(s) practicable ( i.e., construction barges, on shore, or any other suitable location) to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator. Observers will have no other construction-related tasks while conducting monitoring. Observers should have the following minimum qualifications:

• Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target;

• Ability to conduct field observations and collect data according to assigned protocols;

• Experience or training in the field identification of marine mammals, including the identification of behaviors;

• Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;

• Writing skills sufficient to document observations including, but not limited to: The number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury of marine mammals from construction noise within a defined shutdown zone; and marine mammal behavior; and

• Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.

Observer teams employed by the Navy in satisfaction of the mitigation and monitoring requirements described herein must meet the following additional requirements:

• Independent observers ( i.e., not construction personnel) are required.

• At least one observer must have prior experience working as an observer.

• Other observers may substitute education (degree in biological science or related field) or training for experience.

• Where a team of three or more observers are required, one observer should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer.

• We will require submission and approval of observer CVs.

(2) Prior to the start of pile driving activity, the shutdown zone will be monitored for 30 minutes to ensure that it is clear of marine mammals. Pile driving will only commence once observers have declared the shutdown zone clear of marine mammals; animals will be allowed to remain in the shutdown zone ( i.e., must leave of their own volition), and their behavior will be monitored and documented. The shutdown zone may only be declared clear, and pile driving started, when the entire shutdown zone is visible ( i.e., when not obscured by dark, rain, fog, etc. ). In addition, if such conditions should arise during impact pile driving that is already underway, the activity would be halted, i.e., the entire shutdown zone must remain visible during impact pile driving.

(3) If a marine mammal approaches or enters the shutdown zone during the course of pile driving operations, activity will be halted and delayed until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or fifteen minutes have passed without re-detection of the animal. Monitoring will be conducted throughout the time required to drive a pile and for thirty minutes following the conclusion of pile driving.

The use of a soft start procedure is believed to provide additional protection to marine mammals by warning marine mammals or providing them with a chance to leave the area prior to the hammer operating at full capacity, and typically involves a requirement to initiate sound from the hammer at reduced energy followed by a waiting period. This procedure is repeated two additional times. It is difficult to specify the reduction in energy for any given hammer because of variation across drivers and, for impact hammers, the actual number of strikes at reduced energy will vary because operating the hammer at less than full power results in “bouncing” of the hammer as it strikes the pile, resulting in multiple “strikes.” The Navy will utilize soft start techniques for impact pile driving. We require an initial set of three strikes from the impact hammer at reduced energy, followed by a 30-second waiting period, then two subsequent 3-strike sets. Soft start will be required at the beginning of each day's impact pile driving work and at any time following a cessation of impact pile driving of thirty minutes or longer; the requirement to implement soft start for impact driving is independent of whether vibratory driving has occurred within the prior 30 minutes.

We have carefully evaluated the Navy's mitigation measures and considered a range of other measures in the context of ensuring that we prescribed the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Based on our evaluation of these measures, we have determined that the mitigation measures provide the means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses.

In order to issue an LOA for an activity, Section 101(a)(5)(A) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of the authorized taking. NMFS's MMPA implementing regulations further describe the information that an applicant should provide when requesting an authorization (50 CFR 216.104(a)(13)), including the means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and the level of taking or impacts on populations of marine mammals.

Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:

• Occurrence of significant interactions with marine mammal species in action area ( e.g., animals that came close to the vessel, contacted the gear, or are otherwise rare or displaying unusual behavior);

• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment ( e.g., source characterization, propagation, ambient noise); (2) affected species ( e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure ( e.g., age, calving or feeding areas);

• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;

• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;

• Effects on marine mammal habitat ( e.g., marine mammal prey species, acoustic habitat, or important physical components of marine mammal habitat); and

• Mitigation and monitoring effectiveness.

The Navy will collect sighting data and behavioral responses to pile driving activity for marine mammal species observed in the region of activity during the period of activity. The Navy will employ a minimum of two qualified observers at all times to monitor shutdown zones and the surrounding waters of Anaheim Bay. In order to accomplish visual coverage of the entirety of Anaheim Bay, it is possible that additional observers will be used. All observers will be trained in marine mammal identification and behaviors and are required to have no other construction-related tasks while conducting monitoring. The Navy will monitor all shutdown zones at all times, and would monitor disturbance zones as conditions allow. The Navy will conduct monitoring before, during, and after pile driving, with observers located at the best practicable vantage points.

As described in “Mitigation” and based on our requirements, the Navy will implement the following procedures for pile driving:

• Marine mammal observers will be located at the best vantage point(s) in order to properly see the entire shutdown zone and as much of the disturbance zone as possible;

• During all observation periods, observers will use binoculars and the naked eye to search continuously for marine mammals;

• If the shutdown zones are obscured by fog or poor lighting conditions, pile driving at that location will not be initiated until that zone is visible. Should such conditions arise while impact driving is underway, the activity will be halted; and

• The shutdown zone around the pile will be monitored for the presence of marine mammals before, during, and after all pile driving activity.

Individuals implementing the monitoring protocol will assess its effectiveness using an adaptive approach. Monitoring biologists will use their best professional judgment throughout implementation and seek improvements to these methods when deemed appropriate. Any modifications to the protocol will be coordinated between NMFS and the Navy.

We require that observers use standardized data forms. Among other pieces of information, the Navy will record detailed information about any implementation of shutdowns, including the distance of animals to the pile and a description of specific actions that ensued and resulting behavior of the animal, if any. We require that, at a minimum, the following information be collected on the sighting forms:

• Dates and times (begin and end) of all marine mammal monitoring;

• Construction activities occurring during each daily observation period, including how many and what type of piles were driven or removed and by what method ( i.e., impact or vibratory);

• Weather parameters and water conditions during each monitoring period ( e.g., wind speed, percent cover, visibility, sea state);

• The number of marine mammals observed, by species, relative to the pile location and if pile driving or removal was occurring at time of sighting;

• Age and sex class, if possible, of all marine mammals observed;

• PSO locations during marine mammal monitoring;

• Distances and bearings of each marine mammal observed to the pile being driven or removed for each sighting (if pile driving or removal was occurring at time of sighting);

• Description of any marine mammal behavior patterns during observation, including direction of travel;

• Number of individuals of each species (differentiated by month as appropriate) detected within the monitoring zone, and estimates of number of marine mammals taken, by species (a correction factor may be applied to total take numbers, as appropriate);

• Detailed information about any implementation of any mitigation triggered ( e.g., shutdowns and delays), a description of specific actions that ensued, and resulting behavior of the animal, if any;

• Description of attempts to distinguish between the number of individual animals taken and the number of incidences of take, such as ability to track groups or individuals; and

• An extrapolation of the estimated takes by Level B harassment based on the number of observed exposures within the Level B harassment zone and the percentage of the Level B harassment zone that was not visible, when applicable.

A draft report must be submitted to NMFS within 90 days of the completion of each calendar year. The report will include marine mammal observations pre-activity, during-activity, and post-activity during pile driving days, and will also provide descriptions of any behavioral responses to construction activities by marine mammals and a complete description of all mitigation shutdowns and the results of those actions and a total take estimate based on the number of marine mammals observed during the course of construction. A final report must be submitted within 30 days following resolution of comments on the draft report. The Navy will also submit a comprehensive summary report covering all activities conducted under the incidental take regulations.

In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy shall report the incident to the Office of Protected Resources (OPR), NMFS and to the regional stranding coordinator as soon as feasible. The report must include the following information:

• Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);

• Species identification (if known) or description of the animal(s) involved;

• Condition of the animal(s) (including carcass condition if the animal is dead);

• Observed behaviors of the animal(s), if alive;

• If available, photographs or video footage of the animal(s); and

• General circumstances under which the animal was discovered.

NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival ( i.e., population-level effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” by mortality, serious injury, and Level A or Level B harassment, we consider other factors, such as the likely nature of any behavioral responses ( e.g., intensity, duration), the context of any such responses ( e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS's implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline ( e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality).

Pile driving activities associated with this construction action, as described previously, have the potential to disturb marine mammals. Specifically, the specified activities may result in take, in the form of Level B harassment (behavioral disturbance) only from underwater sounds generated from pile driving. Potential takes could occur if individual marine mammals are present in the ensonified zone when pile driving is happening.

No serious injury or mortality would be expected even in the absence of the required mitigation measures. No Level A harassment is anticipated given the nature of the activities, i.e., much of the anticipated activity would involve vibratory driving and/or brief impact installation of primarily non-steel piles, and measures designed to minimize the possibility of injury. The limited potential for injury is expected to be essentially eliminated through implementation of the planned mitigation measures—soft start (for impact driving) and shutdown zones. Impact driving, as compared with vibratory driving, has source characteristics (short, sharp pulses with higher peak levels and much sharper rise time to reach those peaks) that are potentially injurious or more likely to produce severe behavioral reactions. Given sufficient notice through use of soft start, marine mammals are expected to move away from a sound source that is annoying prior to its becoming potentially injurious or resulting in more severe behavioral reactions. Environmental conditions are expected to generally be good, with calm sea states, and we expect conditions would allow a high marine mammal detection capability, enabling a high rate of success in implementation of shutdowns to avoid injury.

Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring). Most likely, individuals will simply move away from the sound source and be temporarily displaced from the areas of pile driving, although even this reaction has been observed primarily only in association with impact pile driving. The pile driving activities analyzed here are similar to, or less impactful than, numerous other construction activities conducted in San Diego Bay, San Francisco Bay, and in the Puget Sound region, which have taken place with no known long-term adverse consequences from behavioral harassment.

The Navy has conducted multi-year activities potentially affecting marine mammals, and typically involving greater levels of activity and/or more impactful activities ( e.g., impact driving of steel piles) than is contemplated here, in various locations such as San Diego Bay as well as locations in Washington inland waters. Reporting from these activities has similarly reported no apparently consequential behavioral reactions or long-term effects on marine mammal populations. Repeated exposures of individuals to relatively low levels of sound outside of preferred habitat areas are unlikely to significantly disrupt critical behaviors. Thus, even repeated Level B harassment of some small subset of the overall stock is unlikely to result in any significant realized decrease in viability for the affected individuals, and thus would not result in any adverse impact to the stock as a whole. Level B harassment will be reduced to the level of least practicable adverse impact through use of mitigation measures described herein and, if sound produced by project activities is sufficiently disturbing, animals are likely to simply avoid the area while the activity is occurring. Effects of the specified activity are expected to be limited to the enclosed waters of Anaheim Bay, which provides relatively low-quality habitat and no known habitat areas of any importance. Therefore, we expect that animals annoyed by project sound would simply avoid the area and use more-preferred habitats.

In summary, this negligible impact analysis is founded on the following factors: (1) The possibility of serious injury or mortality may reasonably be considered discountable; (2) as a result of the nature of the activity in concert with the planned mitigation requirements, injury is not anticipated; (3) the anticipated incidents of Level B harassment consist of, at worst, temporary modifications in behavior; (4) the absence of any significant habitat within the project area, including known areas or features of special significance for foraging or reproduction; and (5) the presumed efficacy of the required mitigation measures in reducing the effects of the specified activity to the level of least practicable adverse impact.

In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activities will have only minor, short-term effects on individuals. The specified activities are not expected to impact rates of recruitment or survival and will therefore not result in population-level impacts.

Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the required monitoring and mitigation measures, we find that the total marine mammal take from the Navy's construction activities will have a negligible impact on the affected marine mammal species or stocks.

As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(A) of the MMPA for specified activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.

Please see Table 6 for information relating to this small numbers analysis. We expect to authorize incidental take of five marine mammal species (with take of one species potentially occurring for two stocks). The total annual amount of taking for authorization is less than one percent for all stocks other than the California coastal bottlenose dolphin, for which the annual take represents greater than one-third of the best available population abundance, if we were to assume that all takes occurred to distinct individuals. However, these numbers represent the estimated incidents of take, not the number of individuals taken. That is, it is likely that a relatively small subset of California coastal bottlenose dolphins would be incidentally harassed by project activities. California coastal bottlenose dolphins range from San Francisco Bay to San Diego (and south into Mexico) and the specified activity would be stationary within an enclosed water body that is not recognized as an area of any special significance for coastal bottlenose dolphins (and is therefore not an area of dolphin aggregation, as evident in Navy observational records). We therefore believe that the estimated numbers of takes likely represent repeated exposures of a much smaller number of bottlenose dolphins and that, based on the limited region of exposure in comparison with the known distribution of the coastal bottlenose dolphin, these estimated incidents of take represent small numbers of bottlenose dolphins. Therefore, the annual take levels would be of small numbers for all stocks.

Based on the analysis contained herein of the specified activity (including the required mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population sizes of the affected species or stocks.

There are no relevant subsistence uses of marine mammals implicated by these actions. Therefore, we have determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

The regulations governing the take of marine mammals incidental to Navy construction activities contain an adaptive management component.

The reporting requirements associated with this rule are designed to provide NMFS with monitoring data from the previous year to allow consideration of whether any changes are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from the Navy regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable.

The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) Results from monitoring reports, as required by MMPA authorizations; (2) results from general marine mammal and sound research; and (3) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs.

No marine mammal species listed under the ESA are expected to be affected by these activities. Therefore, we have determined that section 7 consultation under the ESA is not required.

To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq. ) and NOAA Administrative Order (NAO) 216-6A, NMFS must evaluate our proposed action ( i.e., the promulgation of regulations and subsequent issuance of incidental take authorization) and alternatives with respect to potential impacts on the human environment.

This action is consistent with categories of activities identified in Categorical Exclusion B4 of the Companion Manual for NAO 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that the action qualifies to be categorically excluded from further NEPA review.

Pursuant to the procedures established to implement Executive Order 12866, the Office of Management and Budget has determined that this rule is not significant.

Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration at the proposed rule stage that this action will not have a significant economic impact on a substantial number of small entities. Navy is the sole entity that would be subject to the requirements of these regulations, and the U.S. Navy is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. No comments were received regarding this certification. As a result, a regulatory flexibility analysis is not required and none has been prepared.

This rule does not contain a collection-of-information requirement subject to the provisions of the Paperwork Reduction Act (PRA) because the applicant is a Federal agency.

For reasons set forth in the preamble, 50 CFR part 218 is amended as follows:

The CMP fishery in the Gulf and Atlantic region is jointly managed by the Gulf Council and the South Atlantic Fishery Management Council (South Atlantic Council) (Councils) under the FMP, and includes king mackerel, Spanish mackerel, and Gulf cobia. The FMP was prepared by the Councils and is implemented by NMFS through regulations at 50 CFR part 622 under authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Under the FMP, each Council can develop individual framework amendments to the FMP for actions that are specific to that Council's jurisdiction.

On October 3, 2019, NMFS published a proposed rule for Framework Amendment 7 and requested public comment (84 FR 52864). The proposed rule and the Framework Amendment 7 outline the rationale for the actions contained in this final rule. A summary of the management measures described in the Framework Amendment 7 and implemented by this final rule is described below.

Two migratory groups of cobia exist in the southeastern US: The Atlantic migratory group and the Gulf migratory group. The Atlantic migratory group is a genetically distinct stock that ranges from Georgia through New York and is managed by the Atlantic States Marine Fisheries Commission (84 FR 4736, February 19, 2019). The Gulf migratory group ranges in the Gulf from Texas through Florida and in the Atlantic off the east coast of Florida. The Gulf migratory group is further divided into the Gulf zone and the Florida east coast zone. The Gulf zone is defined as encompassing an area of the exclusive economic zone (EEZ) north of a line extending east of the United States/Mexico border, and north and west of the line of demarcation between the Atlantic Ocean and the Gulf (the Councils' boundary)(50 CFR 622.369(c)(1)(i)). The Florida east coast zone encompasses an area of the EEZ south and east of the line of demarcation between the Atlantic Ocean and the Gulf, and south of a line extending due east from the Florida/Georgia border (50 CFR 622.369(c)(1)(ii)).

Within the Gulf migratory group, the Gulf Council is responsible for management in the Gulf zone, and the South Atlantic Council is responsible for management in the Florida east coast zone. Framework Amendment 7 is only applicable to the Gulf zone for Gulf cobia. The South Atlantic Council was informed of the proposed changes for cobia harvested in the Gulf zone but decided not to consider changes to the cobia management measures for the Florida east coast zone.

Within the Gulf zone, among other measures, Gulf cobia is managed using a stock annual catch target (quota) and annual catch limit with no sector-specific allocations for the commercial and recreational sectors. Landings of Gulf cobia from the Gulf zone remained relatively consistent from 2012 through 2016. However, a decrease in landings was observed in 2017. During the 2018 April, June, and August Gulf Council meetings, fishers provided public testimony that they were witnessing a decrease in the presence of Gulf cobia in the Gulf zone, and requested that the Gulf Council address concerns about the potential health of the Gulf cobia stock in the Gulf zone. Landings of Gulf zone cobia from 2018, which became available following the Gulf Council's transmittal of Framework Amendment 7, revealed that 2018 landings continued to decline from previous years. The public comments were primarily from charter vessel and headboat operators, and private angling stakeholders. Recreational landings account for greater than 90 percent of all Gulf zone cobia landings.

The minimum size limit for Gulf cobia in both the Gulf and South Atlantic is 33 inches (83.8 cm), fork length, and has been in effect since the implementation of the original CMP FMP in 1983 (48 FR 5270, February 4, 1983). This minimum size limit applies to both sectors, and corresponds with the length at which life history information indicates that 50 percent of cobia are sexually mature (sexes combined) and capable of reproduction (SEDAR 28 2013). The daily Federal possession limit of two Gulf migratory group cobia per person per day applies to both sectors and has been in effect since Amendment 5 to the FMP was implemented in 1990 (55 FR 29370, July 19, 1990).

Although the 2013 stock assessment (SEDAR 28 2013) did not indicate that Gulf cobia are overfished or undergoing overfishing, the Gulf Council decided to take a precautionary approach and reduce fishing mortality in case the observed decrease in landings indicates an unknown issue with the health of the stock. An update to the stock assessment began in late 2019, and is expected to be available to the Gulf Council and its scientific and statistical committee in the summer of 2020.

Framework Amendment 7 includes alternatives to revise the Gulf zone minimum size limit, as well as the possession limit. However, the Gulf Council chose not to make any modifications to the possession limit at this time.

This final rule implements an increase in the commercial and recreational minimum size limit for Gulf cobia in the Gulf zone from 33 inches (83.8 cm), fork length, to 36 inches (91.4 cm), fork length. The Gulf Council determined that increasing the minimum size limit will increase the probability of a sexually mature Gulf zone cobia being able to spawn before being harvested, resulting in positive biological effects for the stock in the form of additional recruitment to the spawning stock over time. Harvest is expected to be reduced by 10.3 percent for the commercial sector, and 26.1 percent for the recreational sector, as a result of increasing the minimum size limit.

NMFS received eight comments from individuals on the proposed rule for Framework Amendment 7, one of which was not related to Gulf cobia. All of the other comments supported the action to increase the Gulf cobia commercial and recreational minimum size limit. Some of the comments in support of the size limit change also suggested a 2-year cobia harvest closure and a no gaffing rule for landed cobia. These comments are outside the scope of the actions considered by the Council and the proposed rule. One comment did not agree with retaining the current possession limit. This comment is summarized below, followed by NMFS' response. There are no changes to this final rule from the proposed rule.

Comment 1: The daily possession limit should be reduced from two fish per person per day to one fish per person per day until the stock size increases.

Response: NMFS disagrees that the possession limit should be reduced. The Council considered reducing the possession limit to one fish per person per day along with vessel trip limits of two, four, and six fish per vessel. However, the Council decided not to change the possession limit, or implement a vessel limit because there was public comment in opposition to the action, and a reduction in the possession limit to one fish would have minimal benefit to the stock given that most trips (greater than 95 percent) do not catch more than one cobia per person.

The Regional Administrator for the NMFS Southeast Region has determined that this final rule is consistent with Framework Amendment 7, the FMP, the Magnuson-Stevens Act, and other applicable laws.

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

The Magnuson-Stevens Act provides the statutory basis for this final rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this final rule. Accordingly, the Paperwork Reduction Act does not apply to this final rule. A description of this final rule, why it is being implemented, and the purpose of this final rule are contained in the SUMMARY and SUPPLEMENTARY INFORMATION sections of this final rule.

In compliance with section 604 of the RFA, NMFS prepared a final regulatory flexibility analysis (FRFA) for this final rule. The FRFA follows.

No public comments received by NMFS were in opposition to the action in the Framework Amendment 7 and no changes to this final rule are made as a result of public comment. No comments were received from the Office of Advocacy for the Small Business Administration.

NMFS agrees that the Gulf Council's choice of preferred alternative will best achieve the objectives of Framework Amendment 7 while minimizing, to the extent practicable, the adverse effects on fishermen, support industries, and associated communities.

NMFS expects this final rule to directly affect all commercial vessels, charter vessels and headboats (for-hire vessels), and recreational anglers that fish for or harvest cobia in the Gulf zone. Because no Federal permit is required for the commercial harvest or sale of Gulf cobia, the distinction between commercial and recreational fishing activity for the purposes of this final rule is whether the fish are sold. Individuals that harvest Gulf cobia under the recreational possession limit in Federal waters and who do not subsequently sell these fish are considered to be recreational anglers. The RFA does not consider recreational anglers to be small entities, so they are outside the scope of this analysis and only the impacts on businesses that engage in commercial fishing ( i.e., those that sell their harvests of Gulf cobia) will be discussed.

For-hire vessels sell fishing services to recreational anglers. This final rule will not directly alter the services sold by these for-hire vessels. Any change in anglers' demand for these fishing services (and associated economic effects) as a result of this final rule would be secondary to any direct effect on anglers and, therefore, would be an indirect effect of this final rule. Indirect effects are not relevant to the RFA. However, because for-hire captains and crew are allowed to harvest and sell Gulf cobia under the possession limit when the commercial season is open, for-hire businesses, or employees thereof, could be directly affected by this final rule as well.

Although no Federal permit is required for the commercial harvest and sale of Gulf cobia, vessels with other Federal commercial permits are required to report their catches for all species harvested, including Gulf cobia. On average from 2013 through 2017, there were 277 federally permitted commercial vessels with reported landings of cobia in the Gulf zone. Their average annual vessel-level revenue from all species for 2013 through 2017 was approximately $188,000 (2018 dollars) and cobia harvested from the Gulf zone accounted for less than one percent of this revenue. The maximum annual revenue from all species reported by a single one of these vessels from 2013 through 2017 was approximately $2.33 million (2018 dollars). Finally, it is unknown how many non-federally permitted vessels may have fished commercially for Gulf cobia in Federal waters during this time.

For-hire vessels in the Gulf are required to have a limited access Gulf Charter Vessel/Headboat for Coastal Migratory Pelagics permit (Gulf CMP for-hire permit) to fish for or possess CMP species in or from the Gulf. As of November 8, 2019, there were 1,286 valid (non-expired) or renewable Gulf CMP for-hire permits and 34 valid or renewable Gulf CMP historical captain for-hire permits. Although the for-hire permit application collects information on the primary method of operation, the permit itself does not identify the permitted vessel as either a headboat or a charter vessel and vessels may operate in both capacities. However, only federally permitted headboats are currently required to submit harvest and effort information to the NMFS Southeast Region Headboat Survey (SRHS). Participation in the SRHS is based on determination by the Southeast Fisheries Science Center that the vessel primarily operates as a headboat. As of August 20, 2019, 68 Gulf headboats were registered in the SRHS. As a result, of the 1,320 vessels with Gulf CMP for-hire permits (including historical captain permits), up to 68 may primarily operate as headboats and the remainder as charter vessels. The average charter vessel is estimated to receive approximately $88,000 (2018 dollars) in annual revenue. The average headboat is estimated to receive approximately $267,000 (2018 dollars) in annual revenue.

For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. All of the commercial fishing businesses that would be directly regulated by this final rule are believed to be small entities based on the NMFS size standard.

On July 18, 2019, the Small Business Administration (SBA) issued an interim final rule (84 FR 34261) effective August 19, 2019, that adjusted the monetary-based industry size standards ( i.e., receipts- and assets-based) for inflation for many industries. For fisheries for-hire businesses and marinas, the rule changes the small business size standard from $7.5 million in annual gross receipts to $8 million (as discussed in the July 18, 2019, issue of the Federal Register on pages 34273 and 34279 that adjusts NAICS 487210 (Scenic and Sightseeing Transportation, Water) and 713930 (Marinas)).

Pursuant to the RFA, and prior to SBA's July 18, 2019 interim final rule, an initial regulatory flexibility analysis was developed for this action using SBA's former size standards. NMFS has reviewed the analyses prepared for this action in light of the new size standards. Under the former SBA size standards, all entities subject to this action were considered small entities, and they all would continue to be considered small under the new standards. As a result, NMFS has determined that the new size standards do not affect the analyses prepared for this action.

NMFS has not identified any other small entities that would be directly affected by this final rule. This final rule will increase the commercial and recreational minimum size limit for cobia in the Gulf zone from 33 inches (83.8 cm), fork length, to 36 inches (91.4 cm), fork length. This increase in the minimum size limit is expected to reduce aggregate annual cobia landings by 10.3 percent or 7,319 lb (3,320 kg) and decrease aggregate annual ex-vessel revenue by approximately $25,000 (2018 dollars). If this $25,000 decrease in ex-vessel revenue is divided by the average number of federally permitted commercial vessels that harvested and sold cobia from 2013 through 2017, it results in an average loss of $90 per vessel per year. If it is divided by the average number of federally permitted commercial vessels that harvested and sold cobia from 2013 through 2017, plus the number of vessels with a Federal CMP for-hire permit, it results in an average loss of $16 per vessel per year. The economic costs to each vessel would be expected to vary based on individual fishing practices and location. However, such distributional effects cannot be quantified with available data.

Framework Amendment 7 also contains an action to consider modification of the possession limit for cobia in the Gulf zone. However, the Gulf Council decided to retain the current possession limit. Because this final rule would not make any changes to the current possession limit, no additional direct economic effects would be expected.

The following discussion describes the alternatives that were not selected as preferred by the Gulf Council.

Four alternatives were considered for the action to increase the commercial and recreational minimum size limit for cobia in the Gulf zone. The first alternative, the no action alternative, would retain the current minimum size limit of 33 inches (83.8 cm), fork length, for both sectors. This would not be expected to alter commercial harvest rates relative to the status quo, so no direct economic effects to small entities would be expected to occur. This alternative was not selected by the Council because it would fail to address concerns about the status of the Gulf cobia in the Gulf zone.

The second alternative, which was selected as preferred, will increase the commercial and recreational minimum size limit for cobia to 36 inches (91.4 cm), fork length, in the Gulf zone.

The third alternative would increase the recreational and commercial minimum size limit for cobia to 39 inches (99.1 cm), fork length, in the Gulf zone. This alternative would be expected to reduce aggregate annual ex-vessel revenue by approximately $72,000 (2018 dollars). This alternative was not selected by the Gulf Council because they decided a smaller increase in the minimum size limit was appropriate given the uncertainty surrounding potential overfishing and the potential for negative economic effects.

The fourth alternative would increase the recreational and commercial minimum size limit for cobia to 42 inches (106.7 cm), fork length, in the Gulf zone. This alternative would be expected to reduce aggregate annual ex-vessel revenue by approximately $138,000 (2018 dollars). This alternative was not selected by the Gulf Council because they decided a smaller increase in the minimum size limit was appropriate given the uncertainty surrounding potential overfishing and the potential for negative economic effects.

Three alternatives were considered by the Gulf Council for the action to modify the possession limit for cobia in the Gulf zone. The first alternative, the no action alternative, was selected as preferred and will maintain the current possession limit.

The second alternative would decrease the per person recreational and commercial possession limit for cobia in the Gulf zone to one fish per day. This alternative would be expected to result in an estimated 6 percent reduction in Gulf cobia commercial landings and an estimated loss in annual ex-vessel revenue of approximately $15,000 (2018 dollars). This alternative was not selected by the Council, because they determined that the increase in the minimum size limit would be sufficient to address the concerns of potential overfishing of Gulf cobia prior to the next planned stock assessment. In accordance with that determination, and in consideration of potential negative economic effects, the Council decided to maintain the current possession limit for cobia in the Gulf zone.

The third alternative would create a recreational and commercial vessel trip limit for cobia in the Gulf zone. Under this vessel limit, anglers would not be allowed to exceed the per person possession limit. The third alternative contained three options. The first option would set the recreational and commercial vessel trip limit for cobia in the Gulf zone at two fish, which would be expected to result in an estimated 5 percent reduction in commercial landings and an estimated loss in annual ex-vessel revenue of approximately $12,000 (2018 dollars). The second option would set the recreational and commercial vessel trip limit for cobia in the Gulf zone at four fish, which would be expected to result in an estimated 1.6 percent reduction in commercial landings and an estimated loss in annual ex-vessel revenue of approximately $4,000 (2018 dollars). The third option would set the recreational and commercial vessel trip limit for cobia in the Gulf zone at six fish, which would be expected to result in an estimated 0.7 percent reduction in commercial landings and an estimated loss in annual ex-vessel revenue of approximately $2,000 (2018 dollars). This alternative was not selected by the Council, because they determined that the increase in the minimum size limit would be sufficient to address the concerns of potential overfishing of Gulf cobia prior to the next planned stock assessment. In accordance with that determination, and in consideration of potential negative economic effects, the Council decided not to implement a vessel trip limit.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as `small entity compliance guides.' The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, NMFS prepared a fishery bulletin, which also serves as a small entity compliance guide. The fishery bulletin will be sent to all interested parties.

For the reasons set out in the preamble, 50 CFR part 622 is amended as follows:

The For-hire Reporting Amendment amends 3 fishery management plans, and includes Amendment 27 to the Fishery Management Plan (FMP) for Coastal Migratory Pelagic (CMP) Resources of the Gulf and Atlantic Region (CMP FMP), Amendment 9 to the FMP for the Dolphin and Wahoo Fishery off the Atlantic States (Dolphin Wahoo FMP), and Amendment 39 to the FMP for the Snapper-Grouper Fishery of the South Atlantic Region (Snapper-Grouper FMP).

The CMP fishery in the Atlantic region is managed under the CMP FMP, an FMP jointly managed by the Gulf Council and South Atlantic Council. The South Atlantic Council manages the dolphin and wahoo fishery under the Dolphin Wahoo FMP in the Atlantic and the snapper-grouper fishery under the Snapper-Grouper FMP in the South Atlantic. All of these FMPs are implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On March 14, 2018, NMFS published a notice of availability (NOA) for the For-hire Reporting Amendment and requested public comment (83 FR 11164). On April 4, 2018, NMFS published a proposed rule for the For-hire Reporting Amendment and requested public comment (83 FR 14400). On June 12, 2018, the Secretary of Commerce (Secretary) approved the For-hire Reporting Amendment under section 304(a)(3) of the Magnuson-Stevens Act. The proposed rule and the For-hire Reporting Amendment outline the rationale for the actions contained in this final rule. A summary of the management measures described in the For-hire Reporting Amendment and implemented by this final rule is provided below.

This final rule establishes weekly electronic reporting for owners or operators of federally permitted charter vessels and changes the electronic reporting deadline for owners and operators of federally permitted headboats in the previously described Atlantic fisheries managed by the Gulf Council and South Atlantic Council. Further in this preamble, for ease of comprehension an owner or operator of a charter vessel with a Federal permit for Atlantic CMP species, Atlantic dolphin and wahoo, or South Atlantic snapper-grouper is referred to as a “South Atlantic charter vessel permittee.”

The South Atlantic Council identified the need for increased data collection from federally permitted charter vessels, such as reporting landings and discards more frequently, compared to information that the Marine Recreational Information Program (MRIP) survey currently provides. The South Atlantic Council determined that weekly electronic reporting by federally permitted charter vessels will allow data to become available for the science and management process more quickly while also improving data accuracy. This rule requires a South Atlantic charter vessel permittee to submit an electronic fishing report to NMFS weekly, or at intervals shorter than a week if notified by NMFS, regardless of where they were fishing, or what species were caught or harvested. A reporting week is Monday through Sunday, and a weekly electronic fishing report is required to be submitted using NMFS-approved hardware and software by the Tuesday following each reporting week, which is 2 days after the end of a reporting week.

Through this final rule, a South Atlantic charter vessel permittee is required to submit an electronic fishing report using hardware and software that meets NMFS technical requirements and has been type-approved by NMFS. NMFS-approved hardware could include electronic devices such as computers, computer-tablets (hereinafter referred to as “tablets”), and smartphones that allow for internet access and are capable of operating approved software. Hardware and software that meet the NMFS type-approval are posted on the NMFS Southeast Region website https://www.fisheries.noaa.gov/southeast/et.

An electronic fishing report is required from a South Atlantic charter vessel permittee regardless of where fishing occurs, e.g., state, Federal, or foreign waters, or which species are caught or harvested. If a charter vessel is not used to fish during a reporting week, submission of a “no-fishing” report is required by the Tuesday of the following week. As explained in the proposed rule, the NMFS Southeast Fisheries Science Center (SEFSC), which operates and manages the Southeast Region Headboat Survey (SRHS), allows a headboat owner or operator to submit an advance no-fishing report for up to a 30-day period if the vessel will not be fishing during that time. The electronic reporting program implemented in this rule will also allow a South Atlantic charter vessel permittee to submit an advance no-fishing report for up to a 30-day period. A South Atlantic charter vessel permittee who fishes during the time period specified in a submitted no-fishing report, must report such fishing activities as required in this final rule.

The South Atlantic Council's intent is to reduce or eliminate duplicative reporting in certain circumstances for a South Atlantic charter vessel permittee who also holds a for-hire permit issued for a Federal fishery other than those covered in this rule (dually permitted fishermen). The South Atlantic Council explained that reports would be duplicative if a South Atlantic charter vessel permittee is subject to more stringent reporting requirements through another Federal permit, and the data reported under those requirements include the core data elements also required to be reported under the South Atlantic permits. Therefore, a South Atlantic charter vessel permittee who is also subject to electronic reporting requirements in other regions is required to comply with the Federal electronic reporting program that is more stringent, regardless of where they are fishing.

NMFS notes that the NMFS Greater Atlantic Regional Fisheries Office (GARFO) has implemented an electronic vessel trip report system for an owner and operator of a charter vessel or a party boat (headboat) issued a Federal for-hire permit for species managed by the Mid-Atlantic Fishery Management Council (Mid-Atlantic Council). Those for-hire vessels must submit an electronic vessel trip report using software approved by GARFO within 48 hours of completing a for-hire fishing trip (82 FR 42610, September 11, 2017). While the reporting frequency is more stringent than is required in this final rule, the data elements required to be reported through the GARFO system are slightly different from those in the South Atlantic reporting program, and as such, the programs are not interchangeable and all requirements of both programs apply. However, to reduce multiple reporting and the burden on those fishermen who have been issued both a Federal for-hire permit for species managed by the Mid-Atlantic Council and a Federal for-hire permit for species managed by the South Atlantic Council, software approved by the Southeast Regional Office (SERO) will allow, but not require, fishermen with Federal for-hire permits in both the Mid-Atlantic and South Atlantic regions to submit one report within 48 hours of completing a for-hire fishing trip that will meet the requirements of both programs.

The Gulf Council also developed amendments to the CMP FMP and the FMP for Reef Fish Resources of the Gulf of Mexico to address for-hire electronic reporting. (Notice of availability published in the Federal Register on June 21, 2018, at 83 FR 28797; proposed rule published in the Federal Register on October 26, 2018, at 83 FR 54069, with the public comment period extended on November 20, 2018, at 83 FR 58522.) The Secretary approved the amendments under section 304(a)(3) of the Magnuson-Stevens Act on September 19, 2018, and NMFS is developing the final rule to implement the Gulf Council's for-hire reporting amendments. The Gulf Council's for-hire electronic reporting requirements are more stringent than the South Atlantic Council's requirements. For example, the Gulf for-hire electronic reporting program would require a pre-trip notification to NMFS, vessel location information monitored by a global positioning system (GPS), and reporting after each trip prior to offloading catch, among other requirements. Therefore, an owner or operator of a charter vessel that has been issued Federal charter vessel/headboat permits for applicable fisheries in both the Atlantic and the Gulf would meet the reporting requirements under this rule if that owner or operator reports under the Gulf Council's more stringent for-hire electronic reporting program requirements. However, NMFS expects this final rule to implement the South Atlantic Council's reporting program will be effective prior to the final rule to implement the Gulf Council's for-hire electronic reporting program. Therefore, such dually-permitted owners or operators would be initially required to report under the South Atlantic Council's program, and then be required to change and report under the Gulf Council's reporting program upon the effective date of the Gulf Council's final rule. NMFS has determined that changing reporting programs in such a short period of time would create unnecessary disruption, confusion, and hardship for these dually-permitted owners and operators. Therefore, NMFS has determined that such owners or operators are not required to comply with the South Atlantic electronic reporting program until NMFS implements the Gulf electronic reporting program, regardless of where the for-hire trips occur. Once NMFS implements the Gulf for-hire electronic reporting program, which is expected to occur in 2020, such owners or operators will be required to comply with the South Atlantic Council's reporting program by reporting under the Gulf Council's electronic reporting program.

This rule also extends other provisions to federally permitted charter vessels that currently apply to headboats for reporting during catastrophic conditions, and if delinquent reporting occurs. During catastrophic conditions, NMFS may accept paper reporting forms, and can modify or waive reporting requirements. Additionally, a delinquent report results in a prohibition on the harvest or possession of the applicable species by the charter vessel permit holder until all required and delinquent reports have been submitted and received by NMFS according to the reporting requirements.

To further improve the accuracy and timeliness of data reported through the SRHS, this final rule changes the reporting deadline for a federally permitted headboat owner or operator currently reporting through the SRHS to submit an electronic fishing report after the end of a reporting week. A headboat owner or operator issued a Federal charter vessel/headboat permit for the applicable Atlantic fisheries covered in this rule will continue to be required to submit an electronic fishing report for each trip at weekly intervals, or at intervals shorter than a week if notified by NMFS. However, this rule requires the electronic fishing reports to be submitted by the Tuesday following a reporting week that runs from Monday through Sunday, 2 days after the end of a reporting week. This rule makes the reporting deadline for headboats consistent with the reporting deadline for charter vessels.

The For-hire Reporting Amendment specifies core data elements to be collected through the for-hire electronic reporting program. These core data elements include, but are not limited to, information about the permit holder, vessel, location fished, catch, discards, fishing effort, and socio-economic data. Other information that could further benefit the management of federally permitted for-hire vessels included under the For-hire Reporting Amendment may also be subject to collection in the future as determined by NMFS in coordination with the South Atlantic Council.

The For-hire Reporting Amendment also requires a South Atlantic charter vessel permittee to report their locations fished by either entering their latitude and longitude in an electronic reporting program or by selecting their fishing locations on a geographic grid in an electronic reporting program. The location accuracy of either reporting method would be to the nearest square nautical mile, or degrees and minutes. This location reporting requirement is consistent with what has been collected for headboats in the SRHS.

In addition to the measures described in the For-hire Reporting Amendment, this final rule corrects the FMP title name for the Dolphin Wahoo FMP in 50 CFR part 622. In 2004, NMFS published the final rule implementing the Dolphin Wahoo FMP, and that rule added the name of the Dolphin Wahoo FMP in Table 1 to § 622.1 (69 FR 30235, May 27, 2004). The Dolphin Wahoo FMP is also cited in two other places in 50 CFR part 622. The name of the Dolphin Wahoo FMP as it appears in 50 CFR part 622 is inconsistent with the original title of the Dolphin Wahoo FMP submitted by the South Atlantic Council, which is the Fishery Management Plan for the Dolphin and Wahoo Fishery of the Atlantic. Additionally, since NMFS implemented the Dolphin Wahoo FMP, the FMP name referenced by the South Atlantic Council and NMFS has often been the original title submitted by the South Atlantic Council. This final rule corrects the inconsistency between the regulations and the original name of the Dolphin Wahoo FMP and inserts “FMP for the Dolphin and Wahoo Fishery of the Atlantic” in Table 1 to § 622.1, and where the Dolphin Wahoo FMP is referenced in 50 CFR part 622.

Finally, this rule removes certain regulatory reporting requirements applicable to the owner or operator of a non-federally permitted charter vessel or headboat that does not fish in the exclusive economic zone (EEZ) but only harvests or possesses species from state waters adjoining the EEZ. As explained in the proposed rule, this rule removes those regulatory reporting requirements from 50 CFR 622.176(b)(1)(i) through (iii) (snapper-grouper species in the South Atlantic), 622.271(b)(1)(i) and (ii) (dolphin and wahoo in the Atlantic), and 622.374(b)(1) (coastal migratory pelagic species in the Atlantic). NMFS has determined that it does not have authority to request this information from non-federally permitted fishermen who do not fish in the EEZ. For the same reason, NMFS also removes this regulatory reporting requirement from 50 CFR 622.374(b)(1) for coastal migratory pelagic species in the Gulf. This is consistent with the revisions to § 622.374(b)(1) NMFS made in the proposed rule to implement the Gulf Council's for-hire electronic reporting amendments to their FMPs (83 FR 54069, October 26, 2018).

NMFS received 72 comments during the public comment periods on the NOA and proposed rule for the For-hire Reporting Amendment. The majority of the comments were in support of the For-hire Reporting Amendment and proposed rule. NMFS acknowledges the comments in favor of all or part of the actions in the For-hire Reporting Amendment and the proposed rule, and agrees with them. Many of the supporting comments stated that more accurate and timely data from fishermen on charter vessels and headboats will lead to better management of the for-hire component of the recreational sector and more sustainable fish populations. Some fishermen supported the electronic reporting requirement only if the data could be used to increase the accuracy of stock assessments and improve management decisions. Many comments in support of the For-hire Reporting Amendment and proposed rule recognized that the for-hire reporting requirements are a first step to improve data, and that adequate program compliance and validation of the data must follow. Sixteen comments were opposed to the proposed electronic reporting requirements. Comments that were beyond the scope of the proposed rule are not responded to in this final rule. In this final rule, NMFS made one change in response to public comment on the For-hire Reporting Amendment and the proposed rule. See the response to Comment 16 below. Comments specifically in opposition to all or some of the actions contained in the For-Hire Reporting Amendment and the proposed rule are summarized below, each followed by NMFS' respective responses.

Comment 1: The requirement of mandatory electronic reporting will be a burden to charter vessel fishermen. Species caught and discarded will be difficult to track and report when multiple customers are catching and releasing fish on a continuous basis during a trip. It will also be difficult to remember accurately what species were caught and discarded on a weekly basis.

Response: While implementation of this final rule will likely increase the time required for reporting fishing activities, the electronic reporting requirements implemented in this final rule are expected to improve management of the federally permitted for-hire component in the Atlantic through improved availability of relevant management information. Multiple years of side-by-side data collection through this program and the MRIP survey are necessary before this program's data can be used for official catch estimates. NMFS will notify the South Atlantic Council if additional changes to the electronic reporting program are necessary. If certified by NMFS to replace the MRIP survey, NMFS expects these electronic reporting requirements to produce timelier, and more accurate and reliable information for managed fish species, and in particular species with low catches, small annual catch limits (ACLs), and those that are only rarely encountered by fishery participants.

To assist the owners and operators of for-hire vessels, NMFS and the South Atlantic Council have been holding outreach sessions to train those fishermen on the reporting requirements to help ensure compliance, and NMFS will continue with these outreach efforts. Although this final rule requires the reports weekly, fishermen may record or submit their electronic reports more often, and NMFS expects that recording trips before the deadline each week will become a common business practice. Electronic reporting may enable charter vessel owners and operators to store and access their trip-level information electronically, which may be helpful for other business purposes.

The electronic reporting program implemented by this final rule builds off the favorable results of the South Atlantic Council's pilot study on electronic reporting with for-hire fishermen in the South Atlantic, which tested the eTRIPS mobile application developed through the Atlantic Coastal Cooperative Statistics Program (ACCSP) and Harbor Light Software for use in U.S. northeast fisheries.

Comment 2: Weekly reporting does not provide charter vessel fishermen enough time to complete and submit their reports. The amount of time to transmit reports after a fishing week ends should be longer. Additionally, weather or business fluctuations can prevent fishermen from being able to fish for long periods of time, yet the reporting program requires weekly reporting.

Response: The South Atlantic Council's goal in selecting weekly electronic reporting for federally permitted charter vessels is to improve recreational for-hire fishery data used for management, allow for better monitoring of landings and discards, and allow more accurate assessments of the impacts of regulations. The shorter reporting deadline is expected to reduce recall bias, and to make data available on a timelier basis. The South Atlantic Council determined that weekly reporting will make data available more quickly and could decrease the likelihood of harvest overages for species that have in-season closures.

NMFS estimates that it will take about 10 minutes per fishing trip and 2 minutes for a no-fishing report to be completed and submitted, including time to review instructions, search existing data sources, to gather and maintain necessary data, and to compile, review, and submit the required information. NMFS expects reporting time to decrease as familiarity with the software increases. If no fishing occurs for any reason, no-fishing reports are due by the Tuesday following the fishing week; submission of no-fishing reports will be allowed for up to 30 days in advance, the same as currently allowed for headboats in the SRHS. The requirement for mandatory, weekly reporting, including reporting when no fishing occurred, was recommended by the Gulf and South Atlantic Council's Technical Subcommittee to enhance data validation.

Comment 3: Requiring charter vessel fishermen to report information such as charter fees, gross profits, and fuel costs has nothing to do with fishing regulations and should not be included in this electronic reporting program. Asking vessel operators to submit their financial information leads to a lack of program acceptance and trust among charter vessel participants. There are other methods available to collect this information such as website surveys, directly surveying permit holders, or simply asking these questions on a random basis rather than on a weekly basis.

Response: During the development of the For-hire Reporting Amendment, the South Atlantic Council determined that the collection of economic information was essential to the electronic reporting program. The collection of economic data from charter vessels will enhance the ability of the South Atlantic Council and NMFS to monitor and assess the economic effects of fishing regulations and environmental factors. This information will support the use of the best scientific information available for regulatory decision-making; will increase the accuracy of economic impacts and value estimates specific to the charter vessel component of the for-hire industry; and will support further research efforts and programs aimed at increasing net benefits to fishery stakeholders and the U.S. economy. Information reported by individuals and businesses will be confidential and protected in accordance with all applicable law.

Comment 4: Not all fishermen have access to a computer, smartphone, or tablet, nor do they all know how to use them. There should be an option for paper-based reporting or an option for reports that can be submitted via telephone.

Response: NMFS recognizes that there will be an economic cost for those individuals without a computer, tablet, smartphone, or internet access. However, these devices and services are essential to electronically transmit information to NMFS and fulfill the reporting program requirements. The use of computers and the internet has become commonplace and is a vital tool in business management and, according to the Small Business Administration, in 2010, approximately 94 percent of businesses used computers and 95 percent of these had internet service.

The South Atlantic Council did not consider a paper or telephone call-based reporting system for the federally permitted charter sector, apart from catastrophic conditions discussed below. (Note that reports may be submitted using a smartphone application or “app” if compatible and approved software is available for use.) Compared to paper or telephone call-based reporting, electronic reporting is more efficient, timely, and cost-effective, and results in fewer transmission errors. The South Atlantic Council anticipates that electronic reporting will provide more timely data for use in fisheries management actions. Electronic-based fishery reporting programs have been developed and are used in the NMFS Southeast Region and in other regions with success. To assist charter vessel owners and operators with the transition to an electronic reporting program, NMFS will continue to provide in-person outreach sessions, webinars, and other resources to help fishermen comply with the requirements. Also, all of the approved reporting software will provide help-desk support to answer questions.

An option for paper-based reporting is only available under catastrophic conditions as determined by the NMFS Regional Administrator, such as after a hurricane. If the NMFS Regional Administrator determines that catastrophic conditions exist, NMFS would announce that to the fleet, and then may accept paper reporting forms and may modify or waive reporting requirements.

Comment 5: The electronic reporting program as described requires the collection of too much information. Fishermen should be required to only report the number of hooks in the water and the fish they caught. The electronic reporting requirements should only apply to fishing in Federal waters and should not include reporting of trips taken in state waters.

Response: In the course of developing and implementing fishery management measures, the South Atlantic Council and NMFS are required to consider many factors in addition to the amount of fish harvested and fishing effort. The South Atlantic Council identified core data elements that for-hire fishermen would report through the program. These include information about the trip, including general location, catch and discard information, as well as limited economic variables. The collection of socio-economic data is expected to improve management, as discussed in the response to Comment 3.

This final rule requires a for-hire vessel owner or operator to report all species, regardless of where fishing occurs, to avoid data gaps in catch reporting and to mitigate issues with compliance and enforcement. This information will improve the effectiveness of future management by ensuring that events, such as changes in a species' geographic range, developing fisheries, or species not managed by the South Atlantic Council, would be captured in the data system. Given that recreational fishermen in the South Atlantic for-hire component routinely catch multiple species in both state and Federal waters on the same trip, omitting state water data could result in a significant loss of information necessary for management.

Comment 6: It is unclear how the data collected through this electronic reporting program will be incorporated into stock assessments and how it will reduce uncertainty in fisheries management.

Response: MRIP data are currently the NMFS official estimates of catch and effort that are used in stock assessments. Until NMFS certifies this new electronic reporting program as statistically valid to replace MRIP, catch and effort from the for-hire component that would be used in stock assessments will continue to come from MRIP. In the short term, the information reported through the electronic reporting program will be used to validate minimum estimates of for-hire fishing effort for the for-hire survey conducted by MRIP. Multiple years of side-by-side comparisons of data collected by the new electronic reporting program and the MRIP survey will be needed before the electronic reporting program can be certified. Furthermore, the SEFSC has suggested that additional steps may be needed to improve the electronic reporting program before it can be certified. These steps could include a requirement for fishermen to inform NMFS when they are leaving on their trip (pre-trip notification) and to report their catch before it is off-loaded from their fishing vessel. Once certified, the data collected through this electronic reporting program would replace the MRIP survey used for official estimates of for-hire catch and effort that can be incorporated into stock assessments.

After certification, NMFS expects the electronic reporting program to facilitate timelier tracking of landings from federally permitted charter vessels, and to reduce uncertainty in the data since landings information would be collected from all federally permitted for-hire vessels, both charter vessels and headboats, rather than from only a portion of vessels. Currently, MRIP collects information from charter vessels randomly sampled through a survey rather than from every charter vessel. Having landings information from all federally permitted vessels under a certified program provides a better basis to prevent ACLs from being exceeded, and for improving information used in stock assessments. Direct, weekly electronic reporting by federally permitted charter vessels provides an opportunity for monitoring catch over shorter time periods, reducing management uncertainty and fostering more precise and responsive management.

Comment 7: For vessels holding multiple Federal permits, a single electronic report of all fish caught and discarded should suffice for Mid-Atlantic, South Atlantic, Atlantic Highly Migratory Species (HMS), and Gulf reporting requirements. Reporting the same landings to multiple, different systems will result in double reporting and less data accuracy.

Response: This final rule requires South Atlantic charter vessel permittees subject to electronic reporting requirements in other regions to comply with the electronic reporting program that is more stringent, regardless of where they are fishing. A single Federal reporting option may apply between different programs, such as with a for-hire permittee in Mid-Atlantic and South Atlantic fisheries; however, in some cases fishermen may still need to submit separate reports to different programs.

As discussed previously, because the Gulf Council's for-hire reporting program is more stringent than that for the South Atlantic, an owner or operator of a charter vessel issued the applicable Federal charter vessel/headboat permits in both the Atlantic and in the Gulf will submit their report through the Gulf system, and will not be required to submit a separate report through the South Atlantic reporting system. In addition, such an owner or operator of a charter vessel would not be required to comply with the South Atlantic electronic reporting program until the Gulf electronic reporting program is implemented, regardless of where for-hire trips occur, and can then comply by reporting through the Gulf program.

The NMFS GARFO electronic vessel trip report system collects information from for-hire vessels every 48 hours, but it does not require reporting of the same information as required to be collected through the South Atlantic program. NMFS recognizes the need to reduce duplication and the potential for double counting fish, and has developed NMFS-approved software for use in the South Atlantic that will allow fishermen with Federal for-hire permits for both the Mid-Atlantic and South Atlantic fisheries to submit one report, which meets all the different requirements of both programs, within 48 hours of completing a for-hire fishing trip. However, reporting in this manner is not required, and fishermen with Federal for-hire permits for both the Mid-Atlantic and South Atlantic fisheries may report separately under each program if they choose.

The NMFS Atlantic HMS program also has its own electronic reporting requirements. However, the Atlantic HMS regulations only require reporting of certain species by an owner or operator of a federally permitted HMS charter vessel or headboat. HMS charter vessel/headboat permit holders are required to report any dead discards of bluefin tuna, and any landings of bluefin tuna, swordfish, or billfish within 24 hours of landing at the dock through a mobile application, by calling the dedicated tuna or billfish reporting telephone numbers, or by submitting a report at the website www.hmspermits.noaa.gov. At this time, fishery participants with both South Atlantic and HMS for-hire permits would be required to report bluefin tuna, swordfish, or billfish harvests both through the HMS reporting mechanisms (within 24 hours) and through the South Atlantic electronic reporting program (weekly). Other species of Atlantic HMS ( e.g., smooth dogfish shark) and any other species caught would only be reported through the South Atlantic reporting program, because this reporting program requires the reporting of all species that are caught or harvested. The NMFS HMS program is actively exploring options for reporting efficiency with the other reporting programs including future electronic logbooks, which could be based on existing systems, or the inclusion of HMS data elements within preexisting systems.

Comment 8: Having different reporting requirements for charter vessels and headboats will cause a problem for those vessels that may operate as a charter vessel during one trip and a headboat vessel during another.

Response: NMFS disagrees, because a federally permitted vessel that operates as both a charter vessel and a headboat during separate trips will continue to report based on whether the vessel owner or operator currently reports to the SRHS. In other words, if an owner or operator of a for-hire vessel has already been reporting to the SRHS, they will continue to report to the SRHS, regardless if they operate as a charter vessel or headboat on separate trips. Conversely, if an owner or operator of a for-hire vessel has not already been reporting to the SRHS, then they will report according to the requirements of the new South Atlantic electronic reporting program set forth in this final rule.

The South Atlantic Council's intent throughout the development of the For-hire Reporting Amendment was for electronic reporting requirements to be as consistent as possible between charter vessels and headboats. Therefore, the required data elements in the new South Atlantic electronic reporting program will be as similar as possible to those already collected through the SRHS, and this final rule requires both charter vessels and headboats to report by 2 days following the end of a fishing week ( i.e., by Tuesday).

Comment 9: Electronic reporting should be designed to minimize the complexity of these reports and to be as efficient as possible.

Response: NMFS agrees with the comment. NMFS evaluated potential software applications for the electronic reporting program, and specified approved software applications, including eTRIPS online and eTRIPS mobile, which are products of the ACCSP used by partner organizations in the region. NMFS will continue to conduct in-person outreach sessions and webinars, and on-line resources will be available to help ensure understanding of the program and compliance, such as, how to file electronic reports using NMFS-approved software. All NMFS-approved software vendors for the South Atlantic electronic reporting program will have help-desk support. In addition, although this final rule requires electronic reports to be submitted weekly, fishermen may submit their electronic reports more frequently.

Comment 10: The electronic reporting requirements for federally permitted for-hire vessels in the For-hire Reporting Amendment are a first step to a limited entry permit program, sector separation, or a catch share program, none of which are needed in the South Atlantic.

Response: NMFS disagrees that this final rule is intended to be a first step towards a limited entry permit program, sector separation, or a catch share program in the South Atlantic. As previously discussed in the response to Comment 1, the electronic reporting program implemented by this final rule is designed to collect better fishery management data from South Atlantic federally permitted for-hire owners and operators.

Comment 11: It is unclear how NMFS will protect data that are being reporting to them.

Response: NMFS will protect this data in accordance with applicable law. For example, under section 402(b)(1) of the Magnuson-Stevens Act, the data submitted to NMFS under the For-hire Reporting Amendment shall be confidential and shall not be disclosed, except under limited circumstances, as provided for in section 402(b) of the Magnuson-Stevens Act. Additionally, all data reported through the electronic reporting program will be collected through software that meets standards set out by NMFS, including data confidentiality and protection of personal information online, and will be treated as confidential in accordance with NOAA Administrative Order 216-100, Protection of Confidential Fisheries Statistics. The release of data in aggregate or summary form that does not directly or indirectly disclose the identity or business of any person who submits the information is a circumstance authorized under section 402(b)(3) of the Magnuson-Stevens Act.

Comment 12: The census approach to data collection is unworkable and does not provide data usable in fisheries management. The electronic reporting program needs to be enhanced to provide a reliable and usable tool for management. The electronic reporting program should include pre and post-trip notification requirements, and an education plan for charter captains to explain the value of participation and compliance.

Response: The South Atlantic Council considers the data collection program implemented by this final rule to be a first step towards better data collection in the federally permitted for-hire component of the recreational sector, and expects the electronic reporting program to provide data that can be used for effort validation and economic analysis. The South Atlantic Council intends to improve federally permitted charter vessel reporting, while requiring the collection of data similar to what the SRHS already collects. NMFS acknowledges that future modifications to the South Atlantic electronic reporting program, such as incorporating a pre-trip notification requirement and a requirement to report catch before off-loading from a vessel, may enhance the survey design, increase the robustness of catch estimates, and improve validation, which could decrease the overall cost of the program. However, the South Atlantic Council did not include such measures in the electronic reporting program or in the recommended core data elements. In addition, as stated in the response to Comment 9, NMFS will continue to hold in-person outreach sessions and webinars, and on-line resources will be available to help ensure understanding of the program and compliance.

Comment 13: Discard data, including the amount, a detailed disposition of discarded fish, and whether fish were vented or released to depth with a descending device, should be collected through this electronic reporting program. Refined disposition information of discarded fish can help fine-tune discard mortality estimates by quantifying what happened to fish upon their release.

Response: During the development of the For-hire Reporting Amendment, the South Atlantic Council identified core data elements that would be required to be reported through the program. These include information about the trip, including general location, catch and discard information, as well as limited economic variables. The specific discard information identified in the comment were not included as core data elements, and the SEFSC does not recommend the collection of discard disposition, because assessment of the condition of a released fish varies among fishermen and the mortality of a discarded fish is rarely instantaneous. However, NMFS, in coordination with the South Atlantic Council, may consider modifying the list of data elements in the future.

Comment 14: The for-hire reporting program recommended by the Gulf Council was inaccurately summarized in the proposed rule for the South Atlantic for-hire reporting program. The proposed rule incorrectly stated that the Gulf for-hire reporting program would require location information monitored by a vessel monitoring system (VMS), among other requirements. The Gulf for-hire reporting program would provide flexibility for other NMFS-approved electronic devices to be used to monitor location information.

Response: NMFS agrees that the proposed rule described some of the measures recommended for the Gulf in error, and NMFS became aware of this after the proposed rule for the South Atlantic for-hire reporting program published in the Federal Register . The Gulf for-hire reporting program as recommended by the Gulf Council would require NMFS-approved hardware and software with GPS capabilities that, at a minimum, archive vessel position data during a trip for subsequent transmission to NMFS. NMFS-approved hardware could include VMS, and owners and operators of vessels already equipped with VMS may elect to utilize it if the VMS unit is approved for use in the Gulf electronic reporting program. However, NMFS anticipates approving other devices that may be used to meet the requirements of the Gulf electronic reporting program.

Comment 15: Implementation and evaluation of the electronic reporting program will be necessary before the new information can be used to support management decisions. This will require additional funds to support more staff time and improvements to data collection platforms. NMFS should carefully balance the need for funding of new electronic reporting programs, while ensuring that adequate financial and human resources continue to be allocated for managing South Atlantic fish populations that reflect the economic and ecological value of the region's diverse ecosystems and coastal communities.

Response: NMFS agrees that the electronic reporting program should be evaluated after it is implemented to make sure it properly supports management decisions. As noted in the response to Comment 1, additional steps will be required before the data collected through this program can replace the MRIP survey and be used for official estimates of for-hire catch and effort. NMFS expects that the certification process through MRIP will not begin until the data collected through this program can be independently validated, and validation will require funding. NMFS strives to meet all of the mandates under the Magnuson-Stevens Act, and finds the need for more timely and improved management data to be obtained through the electronic reporting program in balance and consistent with the management needs of South Atlantic fisheries.

Comment 16: The proposed regulations did not codify the intent to reduce duplicative reporting, but it could be used for enforcement purposes and will have to be changed if the Gulf Council changes their reporting requirements. The regulations for the South Atlantic and Gulf electronic reporting programs should be effective on the same day to avoid confusion and promote compliance.

Response: NMFS has determined that codifying measures to address the duplicative reporting circumstances discussed in the For-hire Reporting Amendment and proposed rule is appropriate and NMFS has added it to this final rule. If the Gulf Council changes its for-hire reporting requirements, NMFS and the South Atlantic Council will review the revised Gulf requirements and determine if changes are needed to the regulations for the applicable Atlantic fisheries. In addition, approximately 373 charter vessels have been issued both a Federal permit in the South Atlantic and in the Gulf, and will be subject to the reporting requirements in the South Atlantic and in the Gulf. As explained earlier in this final rule, NMFS has determined that initially requiring dually permitted Gulf and South Atlantic for-hire vessel owners and operators to report under the South Atlantic electronic reporting program, and then change and report under the Gulf electronic reporting program upon implementation of the Gulf program in such a short period of time would create unnecessary disruption, confusion, and hardship. Therefore, NMFS has determined that because the final rules to implement the two reporting programs will not be effective on the same date, such dually permitted owners or operators are not required to comply with the South Atlantic electronic reporting program until NMFS implements the Gulf electronic reporting program, regardless of where for-hire trips occur.

This final rule clarifies a sentence in the preamble to the proposed rule on page 14403 in the left column that stated a headboat with Federal charter vessel/headboat permits for applicable fisheries in both the Atlantic and the Gulf would continue to be required to comply with the electronic reporting standards in effect based on where they are fishing, e.g., in the Atlantic or the Gulf (83 FR 14400, April 4, 2018). As correctly stated earlier in this final rule, an owner or operator of a federally permitted headboat in both the Atlantic and the Gulf, who currently reports to the SRHS, is required to comply with the electronic reporting requirements in effect based on the permits issued to the vessel regardless of where they were fishing. Because the Gulf Council's for-hire reporting amendments require trip-level reporting prior to offloading fish from the vessel, among other requirements, the Gulf electronic reporting program would be more restrictive, and fishermen on such vessels would be required to report to standards of the Gulf electronic reporting program. NMFS did not change the regulatory language in the proposed rule as a result of this clarification.

In an effort to reduce multiple reporting, NMFS-approved software for the South Atlantic Council-managed fisheries will allow, but not require, fishermen with Federal for-hire permits in both the Mid-Atlantic and South Atlantic to submit one report within 48 hours of completing a for-hire fishing trip that will meet the reporting requirements of both the Mid-Atlantic and South Atlantic programs. The preamble to the proposed rule stated, on page 14402 in the right hand column, that because the program implemented by GARFO is more stringent, permit holders with both GARFO and South Atlantic permits would be required to report to the GARFO reporting program. This is incorrect. While the GARFO requirements are more stringent on the timing of the reports, the South Atlantic program requires more data elements to be reported.

Further, in the preamble to the proposed rule on page 14403 in the left and center columns that explained if NMFS approves the South Atlantic For-hire Reporting Amendment and implements the proposed rule before approving and implementing the Gulf Council's amendments for their for-hire electronic reporting program, a vessel issued the applicable Federal charter vessel/headboat permits in the Atlantic and in the Gulf would be required to comply with the South Atlantic electronic reporting program until a Gulf electronic reporting program is implemented, even if the for-hire trips only occur in the Gulf. Then, if NMFS implements the Gulf for-hire electronic reporting program, a vessel issued such permits would be required to comply with the Gulf electronic reporting program.

NMFS has determined that a charter vessel owner or operator issued the applicable Federal charter vessel/headboat permits in both the Atlantic and in the Gulf will not be required to comply with the South Atlantic electronic reporting program implemented through this final rule until the date on which the Gulf electronic reporting program is implemented. Those owners and operators must then comply with the South Atlantic Council's reporting program by reporting under the Gulf Council's electronic reporting program. This is necessary to avoid confusion between the South Atlantic and proposed Gulf requirements, reduce the administrative burden on the agency, and eliminate an unnecessary economic burden on the fishermen holding both South Atlantic and Gulf permits.

An owner or operator of a charter vessel with a Federal charter vessel/headboat permit for Atlantic CMP species, Atlantic dolphin and wahoo, or South Atlantic snapper-grouper must submit an electronic fishing report regardless of where they were fishing, i.e., not only if fishing occurs in state or Federal waters. The modifications to §§ 622.176(b)(1), 622.271(b)(1), and 622.374(b)(1)(ii) more accurately reflect the applicability of reporting under this final rule. Additionally, in response to a comment on the implementation of the Gulf and South Atlantic electronic reporting programs, NMFS has determined that it is appropriate to codify the circumstance discussed earlier regarding avoiding duplicate reporting requirements if a federally permitted vessel is subject to more stringent reporting requirements through another Federal permit. NMFS has added language to the codified text in this final rule to explain that situation and references the NMFS SERO website for additional information on more stringent reporting requirements. NMFS discussed avoiding duplicate reporting requirements in the preamble to the proposed rule on page 14402 in the right hand column and has determined that adding it to the codified text will help clarify the reporting requirements.

NMFS revised language in §§ 622.176(b)(4), 622.271(b)(4), and 622.374(b)(4) to clarify the consequences of not complying with the reporting requirements.

In addition, reference to the NMFS SERO website was added to §§ 622.176(b)(5), 622.271(b)(5), and 622.374(b)(5) for additional information on approved hardware and software, and NMFS also modifies the language in § 622.374(b)(5), to remove a sentence referencing NMFS-approved hardware and software requirements in the Gulf that is inapplicable to the electronic reporting program in the South Atlantic and that is implemented by this final rule.

Finally, this final rule removes certain regulatory reporting requirements in the section referenced below, applicable to the owner or operator of a non-federally permitted charter vessel or headboat that does not fish in the EEZ but only harvests or possesses Gulf CMP species from state waters adjoining the Gulf EEZ. As stated earlier in this final rule, NMFS proposed to remove this language in the proposed rule for the Gulf electronic reporting program. However, for consistency with changes to requirements for Atlantic CMP species in this final rule, NMFS also removes the regulatory requirements stated in this paragraph from 50 CFR 622.374(b)(1)(i)(A) and (B). These reporting requirements were implemented early in the management of these species, and NMFS is not currently collecting this information. NMFS has determined that it does not now have the regulatory authority under the FMPs affected by this final rule to request this information.

The Regional Administrator for the NMFS Southeast Region has determined that this final rule is consistent with the For-hire Reporting Amendment, the respective FMPs, the Magnuson-Stevens Act, and other applicable laws.

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

The Magnuson-Stevens Act provides the statutory basis for this final rule. No duplicative, overlapping, or conflicting Federal rules have been identified. A description of this final rule, why it is being implemented, and the purposes of this final rule are contained in the SUMMARY and SUPPLEMENTARY INFORMATION sections of this preamble.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) during the proposed rule stage that this final rule would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination was published in the proposed rule and is not repeated here.

On July 18, 2019, the SBA issued an interim final rule (84 FR 34261) effective August 19, 2019, that adjusted the monetary-based industry size standards ( i.e., receipts- and assets-based) for inflation for many industries. For fisheries, for-hire businesses, and marinas, the rule changes the small business size standard from $7.5 million in annual gross receipts to $8 million. See 84 FR at 34273 (adjusting NAICS 487210 (Scenic and Sightseeing Transportation, Water) and 713930 (Marinas)).

Pursuant to the Regulatory Flexibility Act, and prior to SBA's July 18, 2019, interim final rule, a certification was developed for this action using SBA's former size standards. NMFS has reviewed the analyses prepared for this final rule in light of the new size standards. Under the former SBA size standards, all entities subject to this action were considered small entities, and they all would continue to be considered small under the new standards. NMFS has determined that the new size standards do not affect analyses prepared for this final rule. The economic effects discussed in the factual basis for the certification determination, as published in the proposed rule, remain unchanged.

Public comments relating to socio-economic implications and potential impacts on small businesses are addressed in the responses to Comment 1 through Comment 4 in the Comments and Responses section of this final rule. No comments were received regarding the certification and NMFS has not received any new information that would affect its determination. As a result, a final regulatory flexibility analysis was not required and none was prepared.

This final rule contains collection-of-information requirements that have been submitted for approval to OMB under the Paperwork Reduction Act (PRA), Control Number 0648-0016, Southeast Region Logbook Family of Forms. Public reporting burden for compliance with a weekly electronic fishing report is estimated to average 10 minutes per trip and 2 minutes for a no-fishing report, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information.

Notwithstanding any other provision of the law, no person is required to respond to, and no person will be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved collections of information may be viewed at http://www.cio.noaa.gov/services_programs/prasubs.html or https://www.reginfo.gov/public/do/PRASearch#.

For the reasons set out in the preamble, 50 CFR part 622 is amended as follows:

Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (71 FR 58058, October 2, 2006) and amendments.

NMFS is required, under § 635.28(a)(1), to file a closure notice with the Office of the Federal Register for publication when a BFT quota is reached or is projected to be reached. On and after the effective date and time of such notification, for the remainder of the fishing year or for a specified period as indicated in the notification, retaining, possessing, or landing BFT under that quota category is prohibited until the opening of the subsequent quota period or until such date as specified in the notice.

The 2020 BFT fishing year, which is managed on a calendar-year basis and subject to an annual calendar-year quota, began January 1, 2020. The Angling category season opened January 1, 2020, and continues through December 31, 2020. The currently codified Angling category quota is 232.4 metric tons (mt), of which 5.3 mt is allocated for the harvest of large medium and giant (trophy) BFT by vessels fishing under the Angling category quota, with 1.8 mt allocated for each of the following areas: North of 39°18′ N lat. (off Great Egg Inlet, NJ); south of 39°18′ N lat. and outside the Gulf of Mexico (the “southern area”); and in the Gulf of Mexico. Trophy BFT measure 73 inches (185 cm) curved fork length or greater.

Based on reported landings from the NMFS Automated Catch Reporting System and the North Carolina Tagging Program, NMFS has determined that the codified Angling category southern area trophy BFT subquota of 1.8 mt has been reached and exceeded and that a closure of the southern area trophy BFT fishery is warranted. Therefore, retaining, possessing, or landing large medium or giant BFT south of 39°18′ N. lat. and outside the Gulf of Mexico by persons aboard vessels permitted in the HMS Angling category and the HMS Charter/Headboat category (when fishing recreationally) must cease at 11:30 p.m. local time on February 20, 2020. This closure will remain effective through December 31, 2020. This action is intended to prevent further overharvest of the Angling category southern area trophy BFT subquota, and is taken consistent with the regulations at § 635.28(a)(1).

If needed, subsequent Angling category adjustments will be published in the Federal Register . Information regarding the Angling category fishery for Atlantic tunas, including daily retention limits for BFT measuring 27 inches (68.5 cm) to less than 73 inches and any further Angling category adjustments, is available at hmspermits.noaa.gov or by calling (978) 281-9260. HMS Angling and HMS Charter/Headboat category permit holders may catch and release (or tag and release) BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. Anglers are also reminded that all BFT that are released must be handled in a manner that will maximize survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available at https://www.fisheries.noaa.gov/resource/outreach-and-education/careful-catch-and-release-brochure.

HMS Charter/Headboat and Angling category vessel owners are required to report the catch of all BFT retained or discarded dead, within 24 hours of the landing(s) or end of each trip, by accessing hmspermits.noaa.gov, using the HMS Catch Reporting app, or calling (888) 872-8862 (Monday through Friday from 8 a.m. until 4:30 p.m.).

The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:

The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments and fishery closures to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. The closure of the southern area Angling category trophy fishery is necessary to prevent any further overharvest of the southern area trophy fishery subquota. NMFS provides notification of closures by publishing the notice in the Federal Register , emailing individuals who have subscribed to the Atlantic HMS News electronic newsletter, and updating the information posted on the Atlantic Tunas Information Line and on hmspermits.noaa.gov.

These fisheries are currently underway and delaying this action would be contrary to the public interest as it could result in excessive trophy BFT landings that may result in future potential quota reductions for the Angling category, depending on the magnitude of a potential Angling category overharvest. NMFS must close the southern area trophy BFT fishery before additional landings of these sizes of BFT occur. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

This action is being taken under 50 CFR 635.28(a)(1), and is exempt from review under Executive Order 12866.

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 A season allowance of the 2020 total allowable catch (TAC) of pollock in Statistical Area 620 of the GOA is 18,757 metric tons (mt) as established by the final 2019 and 2020 harvest specifications for groundfish in the GOA (84 FR 9416, March 14, 2019) and inseason adjustment (84 FR 70436, December 23, 2019).

In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the A season allowance of the 2020 TAC of pollock in Statistical Area 620 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 300 mt and is setting aside the remaining 18,457 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 620 of the GOA.

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

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for pollock in Statistical Area 620 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of February 17, 2020.

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.