Executive Summary Purpose of the Final Rule

This final rule streamlines and automates import entry and reporting processes for the import trade as well as USDA and USDA-accredited laboratories. These changes support the International Trade Data System (ITDS) initiative and will reduce the burden on the import industry while also enhancing AMS' ability to ensure compliance with its import regulations. In addition, this rule allows AMS to meet a U.S. Customs and Border Protection (CBP) requirement that all government agencies participating in the ITDS project update their regulations to provide for the electronic entry of import information. This rule also ensures that the import trade has access to accurate and up-to-date information in AMS' import regulations.

This final rule is issued under section 8e of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” Section 8e provides that whenever certain commodities are regulated under Federal marketing orders, imports of those commodities into the United States are prohibited unless they meet the same or comparable grade, size, quality, and/or maturity requirements as those in effect for the domestically-produced commodities. The Act also authorizes the U.S. Department of Agriculture (USDA) to perform inspections on those imported commodities and to certify whether those requirements have been met.

Parts 944, 980, and 999 of title 7 of the Code of Federal Regulations (CFR) specify inspection, certification, and reporting requirements for imported commodities regulated under section 8e, including the governmental inspection services that are authorized to perform certification.

There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of import regulations issued under section 8e of the Act.

This final rule:

1. Requires importers of certain Irish potatoes, tomatoes, and onions regulated under section 8e that have been certified by the Canadian Food Inspection Agency to electronically provide the inspection certificate number and a copy of the certificate to AMS. If unable to submit electronically, importers must submit the certificate via email, mail, or facsimile.

2. Changes the method of reporting aflatoxin test results from USDA and USDA-accredited laboratories to AMS by converting a paper form to an electronic format and expanding the reporting requirements for the laboratories to reflect the laboratories' current practice of reporting all test results instead of only failed test results.

3. Eliminates the requirement that importers of pistachios report the disposition of reworked or failed lots of pistachios to AMS.

4. Makes other miscellaneous changes to AMS' import regulations, including updating the agency and program names and contact information, and removing or updating other information that is out of date.

To the extent that this rule will increase efficiency and cost savings, it would benefit importers. Revising the reporting requirements will streamline the regulations and reduce the burden on the trade. The other changes finalized in this action will provide the import trade with accurate information.

USDA is issuing this final rule in conformance with Executive Orders 13563, 13175, 12866, and 13771. See OMB's Memorandum M-17-21 of April 5, 2017, containing guidance for implementing Executive Order 13771, titled `Reducing Regulation and Controlling Regulatory Costs'” (February 2, 2017).

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.

This final rule revises the reporting requirements for certain Irish potatoes, tomatoes, and onions regulated under part 980, the vegetable import regulations. This rule requires importers of those regulated commodities that have been certified by a designated governmental inspection service other than the Federal or Federal-State Inspection Service as meeting section 8e requirements to electronically enter the inspection certificate number and upload an electronic copy of the certificate to AMS. Currently, the Canadian Food Inspection Agency (CFIA) is the only designated non-Federal/Federal-State Inspection Service; therefore, references to the reporting requirement in this rule will hereinafter be described as “CFIA” or “Canadian” inspection certificates and/or inspection information.

A proposed rule concerning this action was published in the Federal Register on December 6, 2016 (81 FR 87849). The proposed rule was made available through the internet by USDA and the Office of the Federal Register. A 30-day comment period ending January 5, 2017, was provided to allow interested persons to respond to the proposal. The import industry, USDA laboratories, and USDA-accredited laboratories are aware of ITDS and its goal to streamline processes. Members of the import industry have attended annual ITDS Trade Support Network plenary sessions conducted by the U.S. Government over the past few years. No comments were received on the proposed rule.

While no comments were received on the proposed rule, USDA believes that industry and laboratories would benefit from additional time to adjust to the new electronic filing and reporting requirements; accordingly, USDA is setting six months from the publication of this final rule as the effective date for these changes.

In the event an importer is unable to enter the CFIA inspection information electronically, he or she will be required to provide a copy of the certificate to AMS via email, mail, or facsimile.

In addition, this rule changes two pistachio import reporting requirements in § 999.600 of the specialty crop import regulations: The Imported Pistachios—Lot Notification report (form FV-249) and the Imported Pistachios—Rework and Failed Lot Disposition report (form FV-251). Both forms have been previously approved for use by OMB under OMB No. 0581-0215, Pistachios Grown in California, Arizona, and New Mexico (although these two forms are included in the OMB information collection for the domestic pistachio marketing order, they are used strictly for reporting related to imported pistachios). The pistachio import regulations currently require that USDA or USDA-accredited laboratories complete a form FV-249 for all lots of imported pistachios that fail to meet aflatoxin requirements and submit the form to USDA, the CBP, and the importer who requested the aflatoxin test. The regulations also require that importers of pistachios complete and submit form FV-251 to USDA and CBP for lots that fail to meet aflatoxin requirements when the lots are reworked for further testing or, when not reworked, are exported, sold for non-human consumption, or destroyed.

With the implementation of this rule, USDA or USDA-accredited labs will submit the form FV-249 electronically, reporting all aflatoxin test results (both “meets” and “fails”) to USDA. In March 2017, the Office of Management and Budget (OMB) approved AMS' request to change the FV-249 form number to SC-249 to reflect the current program name (Specialty Crops), and references to the electronic form in this rule will be to SC-249. AMS has confirmed with CBP that it does not need to receive form SC-249, and importers already receive “meets” and “fails” test results from the laboratories in the form of aflatoxin test certificates; therefore, the laboratories will electronically submit this form only to USDA. Importers will no longer be required to submit the form FV-251 because AMS has determined that information provided on this form is available from other sources. At the same time, AMS obtained OMB's approval for changes to the information collection currently approved under OMB No. 0581-0215, including removal of form FV-251 from the information collection. Providing for electronic submission of the form SC-249 and removing the requirement that importers submit the form FV-251 supports the ITDS initiative by streamlining processes and reducing the burden on America's import trade without compromising AMS' ability to ensure compliance with its import regulations.

This rule makes other changes to the fruit, vegetable, and specialty crop import regulations in §§ 944.400, 944.401, 980.1, 980.117, 980.212, 999.1, 999.100, 999.300, and 999.400. These changes, which include updating agency and program names and contact information and removing or updating other information that is out of date, will help ensure the import regulations contain accurate information and align with the ITDS objective of streamlining import processes for the trade.

This final rule does not remove any specific requirements related to the physical inspection of potatoes, onions, or tomatoes, only the manner in which inspection results are reported. All domestic and imported potatoes, onions, and tomatoes must still be inspected to ensure grade, quality and wholesomeness during the regulated period. All domestic growers of these commodities are also still required to register with the applicable marketing order committee or board. The marketing order committees/boards will still verify that inspections occur for domestically produced commodities. Importers are still required to register each entry by filing with CBP's Automated Commercial Environment (ACE). The AMS Marketing Order and Agreement Division (MOAD) will then verify whether imported products have met inspection requirements.

In part 980, the following sections prescribe the grade, size, quality, and maturity requirements for imported vegetable commodities that are regulated under section 8e: § 980.1(b) for potatoes, § 980.117(b) for onions, and § 980.212(b) for tomatoes. Further, the following sections in part 980 specify the governmental inspection services that are designated to certify that grade, size, quality, and maturity requirements of the commodities have been met: § 980.1(f) for potatoes, § 980.117(e) for onions, and § 980.212(e) for tomatoes. Part 980 also specifies that an inspection certificate issued by a designated government inspection service certifying that the potatoes, onions, and tomatoes meet the import requirements is required for all imports (§§ 980.1(g), 980.117(f), and 980.212(f) for potatoes, onions, and tomatoes, respectively.

As noted above, the vegetable import regulations specify those domestic and foreign government inspection services that are designated to certify that imported potatoes, onions, and tomatoes meet grade, size, quality, and maturity requirements. Currently, the only foreign designated governmental inspection service is CFIA.

When importers have potatoes, onions, or tomatoes inspected in Canada prior to import into the United States, an inspection certificate is provided to the importer that certifies that the commodity meets section 8e import requirements. These certificates are comprised of various formats, including a Certificate of Inspection for Fresh Fruits and Vegetables—Shipping Point (also known as Form CFIA/ACIA 5314 or E2 and E3 Certificates) and an Export Document for C-PIQ Establishments—Fresh Fruits and Vegetables (also known as a C-PIQ form). CFIA issues C-PIQ forms to C-PIQ establishments that meet the requirements defined within the CFIA quality assurance program, known as “Canadian Partners in Quality” (C-PIQ). Currently, the C-PIQ program is only active for potatoes. All of these Canadian certificates contain similar information as required by the AMS vegetable import regulations, including the date of inspection, the name of the shipper, the commodity inspected, the quantity of the commodity covered by the certificate, and a statement indicating that the commodity meets the import requirements of section 8e.

Currently, Canadian certificates that state that potatoes meet section 8e requirements are presented to CBP at the United States/Canada border, prior to entry into the United States. AMS conducts periodic reviews at CFIA offices and potato handling facilities in various Canadian provinces during which inspectors from AMS' Specialty Crops Inspection (SCI) Division, as well as Compliance and Enforcement Specialists from AMS' MOAD, observe inspection processes and review records at traditional shipping points and maintained under the C-PIQ program for potatoes exported from Canada to the United States. However, importers have not been required to submit copies of the Canadian E2, E3, or C-PIQ certificates or otherwise provide proof of Canadian inspection to AMS.

CBP's ACE is the primary system through which the global trade community electronically files information about imports and exports so that admissibility into the United States may be determined and government agencies may monitor compliance. ACE is the platform that provides a “single window” through which the global trade community electronically files shipment data, instead of completing or submitting paper-based forms to report the same information to different government agencies. This “single window” concept is a key component of ITDS, a system that is designed to reduce the burden on America's import and export trade while still providing information to government agencies that is necessary for the United States to ensure compliance with its laws.

In conjunction with the full implementation of the ITDS “single window,” CBP required that government agencies participating in the ITDS project, including AMS, ensure that regulations provide for the electronic entry of import and/or export information. This mandate was instituted through the Border Interagency Executive Council's (BIEC) effort to implement Executive Order 13659 and its governance structure to ensure coordination. CBP shares ACE data with Partnering Government Agencies (PGA) that have entered into a Memorandum of Understanding (MOU) with CBP. ACE data sharing MOUs with PGAs define and limit the scope and use of information shared pursuant to the PGA's respective authorities.

AMS developed and in 2017 began deploying a new automated system called the Compliance and Enforcement Management System (CEMS) that interfaces with CBP's ACE system in support of ITDS. CEMS electronically links with the ACE system to create a “pipeline” through which data are transmitted between MOAD and CBP. CEMS validates information electronically entered by importers in ACE and transmits messages to CBP about whether a shipment may be released for importation into the United States.

AMS has determined that: (1) Requiring importers of potatoes, tomatoes and onions to provide the inspection certificate number and a copy of the certificate issued by the non-USDA inspection agency; and (2) requiring the electronic filing of aflatoxin test results related to imported pistachios and eliminating the requirement to report disposition of reworked or failed lots of pistachios, as initially proposed, meet CBP's requirements for ITDS by: (1) Providing for the electronic entry in ACE of certification information for potatoes, onions, and tomatoes inspected by CFIA prior to import into the United States, and (2) providing for the electronic entry of aflatoxin test results related to imported pistachios into ACE. Data will be transmitted from CBP's ACE to AMS' CEMS, where it will be electronically validated. Upon validation, CEMS will transmit an electronic message back to ACE indicating the shipment is cleared for import into the United States. The changes to the vegetable import regulations will automate and streamline the entry and reporting process for importers while enhancing AMS' ability to ensure compliance with its import regulations.

These changes will also provide an option for importers to provide AMS with a paper copy of a CFIA certificate, via email, mail, or facsimile, in the event an importer is unable to electronically provide the required certificate number and image in ACE.

The pistachio import regulations provide that each pistachio sample drawn and prepared for aflatoxin testing by a USDA-authorized inspector be submitted to a USDA or USDA-accredited laboratory for analysis (§ 999.600(e)). Aflatoxins are a family of toxins producers by certain fungi that are found on agricultural products, including tree nuts. Aflatoxins are poisonous carcinogens. Lots that fail to meet the aflatoxin requirements currently must be reported by the laboratories to USDA, CBP, and the importer using an Imported Pistachios—Failed Lot Notification report (form FV-249), pursuant to §§ 999.600(e), (g), and (h). Importers are also currently required to report the disposition of reworked and failed lots to USDA and CBP using an Imported Pistachios—Rework and Failed Lot Disposition report (form FV-251), pursuant to §§ 999.600(g) and (h). Both the form FV-249 and form FV-251 were previously approved as paper forms.

Section 999.600(f) requires that the laboratories provide an aflatoxin inspection certificate to importers that contains, among other things, a statement as to whether the lot meets or fails the import requirements under section 8e. Thus, all aflatoxin test results are provided to importers by the testing laboratories.

Section 999.600 will be revised by changing the reporting requirements for laboratories (form SC-249) and importers (form FV-251). USDA and USDA-accredited laboratories currently submit a paper form FV-249 to USDA, CBP, and the importer when a lot fails to meet the aflatoxin requirements of the pistachio import regulations. The testing laboratories are now meeting this requirement and are also voluntarily providing information to USDA about lots that meet aflatoxin requirements; in other words, the laboratories are providing all aflatoxin test results to USDA, not just failed lot notifications. Importers currently complete and submit a paper form FV-251 to report the disposition of reworked or failed lots to USDA and CBP.

To streamline the regulations and eliminate the paper-based reporting process, AMS has converted the existing paper form to an electronic format, form SC-249. The electronic format provides for the laboratories to report all aflatoxin test results to AMS, in line with the current practice. USDA's Science and Technology Program approves and accredits laboratories to perform chemical analysis of pistachios for aflatoxin content. The regulations will require accredited laboratories to submit aflatoxin test results to AMS using the electronic form SC-249, and USDA laboratories will also use the electronic form SC-249 to submit test results to AMS. AMS has determined that CBP does not require this test result information, and the laboratories already provide importers with certificates for all aflatoxin tests; therefore, the laboratories will be required to electronically submit form SC-249 to only USDA and not to CBP or importers.

In addition to the changes to laboratory-reporting requirements, § 999.600 will be revised to remove the requirement that importers report the disposition of reworked or failed lots to USDA and CBP using the Imported Pistachios—Rework and Failed Lot Disposition report (form FV-251). When this form was included in a proposed rule published in the Federal Register on October 11, 2011, (76 FR 65411) and implemented in a final rule published in the Federal Register on August 27, 2012, (77 FR 51686), AMS believed that the most effective way to ensure compliance with the rework and failed lot disposition requirements of the pistachio import regulations was to require importers to submit the form FV-251 with details about reworked, exported, sold for non-human consumption, or destroyed lots. Since that time, however, AMS has determined that the information provided on this form is available from other sources (for example, destruction information is available from AMS' SCI Division) or requires additional follow up with an importer. The requirements for rework and final disposition of failed lots is not changing; only the reporting associated with these requirements is changing. Importers will no longer be required to submit the form FV-251 because AMS has determined that information provided on this form is available from other sources. In March 2017, AMS received approval from OMB to remove form FV-251 from the information collection package OMB No. 0581-0215.

Accordingly, §§ 999.600(e), (g), and (h) will be revised to reflect the changes to reporting noted above.

To further ensure that the fruit, vegetable, and specialty crop import regulations provide accurate information to the import trade and in furtherance of streamlining processes in support of ITDS, the following changes will be made:

Contact information for inspection offices and ports of entry, and references to importers making various advance arrangements for inspection services will be revised or removed from the fruit import regulations at §§ 944.400(a) (designated inspection services and procedures), 944.401(c) (olives); the vegetable import regulations at §§ 980.1(g)(1)(ii) (potatoes), 980.117(f)(3) (onions); 980.212(f)(3) (tomatoes); and in the specialty crop regulations at §§ 999.1(c)(1) (dates), 999.100(c)(4) (walnuts), 999.300(c)(3) (raisins), and 999.400(c)(2) (filberts). The contact information for individual inspection offices and ports of entry is currently out of date in many of these sections. Under ITDS, importers will electronically file initial requests for inspection (SC-357, Initial Inspection Request for Regulated Import Commodities ), which will alert the appropriate inspection office and CBP that a regulated commodity will be arriving that will require inspection at the port of entry or at another location. This electronic process will provide the needed advance notice to the inspection service. AMS' SCI Division has amended its inspection application regulations (7 CFR parts 51 and 52) to provide for the electronic filing of the initial request for inspection, thereby meeting CBP's requirement that the regulations of agencies participating in ITDS be revised to provide for electronic filing of shipment entry data (81 FR 93571, December 21, 2016). This rule adds contact information (address, telephone number, and facsimile numbers) for the main SCI office in Washington, DC, in the event importers need any information about inspection services. This change also makes the fruit, vegetable, and specialty crop regulations more current and consistent.

Administrative changes include updating the USDA agency and program names in §§ 944.400(a) (designated inspection services and procedures) and 944.401(a)(5) and (c) (olives) in the fruit import regulations; 980.1(f) (potatoes), 980.117(e) (onions), and 980.212(e) (tomatoes) in the vegetable import regulations; and 999.600(h) (pistachios) in the specialty crop import regulations. Additionally, the word “nectarines” will be removed from § 944.400(a) (designated inspection services and procedures) of the fruit import regulations. Nectarines were regulated in the past but are not currently regulated under the fruit import regulations and should not, therefore, be listed in this section.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), AMS considered the information collection requirements necessary for form SC-357 (Initial Inspection Request for Regulated Imported Commodities) for importers to electronically complete to submit CFIA's inspection certificates and certificate numbers. It was deemed not to place an additional paperwork burden on importers. No changes in the information collection requirements pertaining to OMB No. 0581-0125 (Regulations Governing Inspection Certification of Fresh & Processed Fruits, Vegetables, & Other Products) are necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.

The information collection requirements for the form SC-249 (for imported pistachios) have been previously approved by OMB and assigned OMB No. 0581-0215 (Pistachios Grown in California, Arizona, and New Mexico). As noted earlier, form SC-249 is contained within the OMB information collection for the domestic pistachio marketing order but is used strictly for imported pistachios.

In March 2017, OMB approved AMS' request for changes to the information collection currently approved under OMB No. 0581-0215, Pistachios Grown in California, Arizona and New Mexico, by renaming the existing form number and name to form SC-249, Notification of Aflatoxin Levels, to reflect the USDA program name change to Specialty Crops (SC) and the inclusion of all aflatoxin test results; providing for the electronic submission of form SC-249; and relaxing the submission requirements so that laboratories submit the form to only USDA, eliminating the need to also submit the form to CBP and importers. There are currently nine USDA-accredited laboratories that could potentially submit all aflatoxin test results to USDA instead of only failed test results using form SC-249. The number of respondents changed from 7 to 9 to cover all 9 laboratories completing the form, the estimated number of responses per respondent increased from 4 to 7 to more accurately capture the number of times per year each laboratory typically submits the form to USDA, and the annual burden hours increased as a result of the increased number of respondents and annual responses from 5.6 hours to 11.55 hours (this is a slight reduction from the 12.60 annual burden hours that were previously calculated and included in the proposed rule concerning this action that was published in the Federal Register on December 6, 2016, 81 FR 87849). These changes necessitated by the rulemaking action were included in AMS' request to OMB to revise this information collection and were approved by OMB in March 2017. The revised form SC-249 was then included in the June 2017 three-year renewal of this information collection.

A Regulatory Impact Analysis is required for significant rules by Executive Orders 12866 and 13563, which direct agencies to assess all costs and benefits of available regulatory alternatives. If regulation is necessary, then agencies must select the action that maximizes net benefits, including potential economic, environmental, public health and safety effects, and equity. This analysis examines the costs and benefits of this rule on importers, Customs brokers, and USDA. This document also addresses the requirement of Executive Order 13771 that agencies provide the best approximation of total costs and savings associated with a new or repealed regulation.

This final rule streamlines and automates import entry and reporting processes for the import trade as well as USDA and USDA-accredited laboratories. These changes support the International Trade Data System (ITDS) initiative and will reduce the burden on the import industry while also enhancing AMS' ability to ensure compliance with its import regulations. In addition, this rule allows AMS to meet a U.S. Customs and Border Protection (CBP) requirement that all government agencies participating in the ITDS project update their regulations to provide for the electronic entry of import information. This rule also ensures that the import trade has access to accurate and up-to-date information in AMS' import regulations.

Importers of Canadian potatoes, onions, and tomatoes that are certified by CFIA as meeting section 8e requirements are not currently required to provide AMS with proof of this certification prior to import. This rule mandates that AMS receive proof of CFIA certification through electronic entry of CFIA certificate numbers and electronic copies of certificates. Other agencies, such as CBP, already require importers to electronically enter information about shipments. The implementation of electronic filing capability via ACE and CEMS, will allow entries and associated paperwork to be transmitted to and verified electronically by AMS. Under this system, the importer would electronically file entries via ACE, which would then electronically transmit data to CEMS. Once the data is received, CEMS automatically records information regarding the entry and transmits an electronic notification to the inspection office identified by the filer via email. The ACE Secure Data Portal is covered by OMB Control number 1651-0105 and is the primary means of importers and other trade filers to submit information to ACE and establish their user accounts. CBP published its Privacy Impact Analysis concurrent with a System of Records Notice on July 31, 2015. It is numbered DHS/CBP/PIA-003(b) and available at https://www.dhs.gov/sites/default/files/publications/privacy-piaupdate-cbp-ace-july2015.pdf ) CBP and AMS established a Memorandum of Understanding, dated May 29, 2019, formalizing their respective roles in sharing information that supports ACE's ability to service the trade community.

After the import undergoes a mandatory grading inspection, the inspection service electronically transmits pertinent inspection information to CEMS. If the inspection information identifies the entry as having met import requirements, CEMS automatically reconciles the inspection information against the entry information it previously stored. If the entry does not meet import requirements, a case is created in CEMS, which is electronically assigned to MOAD for investigation.

This process reduces or eliminates the handling and processing of paper forms and adheres to the Paperwork Reduction Act of 1995. The previous paper-based filing method remains available for instances when the system may be temporarily off-line, or for filers with an inability to file electronically.

This electronic filing option should streamline business operations, both for importers of these commodities, and for USDA, which will use the electronically submitted data to monitor compliance with section 8e regulations. Electronic submission of this certificate information would meet CBP's requirement to ensure that the regulations of those government agencies participating in the ITDS project, such as AMS, provide for the electronic submission of required data. This change should create little to no burden on importers while providing AMS with the ability to properly monitor imported vegetable shipments for compliance with the import regulations.

This rule also changes the reporting requirements of aflatoxin test results of imported pistachios. Currently, USDA and USDA-accredited laboratories are required to submit documentation for all lots of imported pistachios that fail the test for aflatoxin to USDA, CBP, and the importer. The importer is also required to submit documentation to USDA and CBP for lots that fail the test for aflatoxin when lots are reworked for further testing, or are exported, sold for non-human consumption, or destroyed. This rule changes these requirements in that laboratories will electronically report all aflatoxin test results (both “meets” and “fails”) to USDA. Importers already receive these results from laboratories through aflatoxin test certificates. CBP has reported that it does not need to receive documentation of aflatoxin test results. As all USDA and USDA-accredited laboratories already electronically supply USDA with all aflatoxin test results of imported pistachios, this rule should have little to no impact on these entities.

This rule is expected to generate time and cost-savings for importers, Customs brokers, MOAD specialists, and USDA and USDA-accredited laboratories. The benefits, assessed both qualitatively and quantitatively, are expected to outweigh any costs of this rule. The burden on the impacted entities is anticipated to be minimal.

The entities that are most likely to be affected by this rule primarily include importers of potatoes, tomatoes, and onions from Canada, and importers of pistachios. Also likely to be impacted are Customs brokers hired by importers to file the CFIA certification with CBP, MOAD specialists who are responsible to ensure that imports meet section 8e standards, and USDA and USDA-accredited laboratories that perform chemical analysis of aflatoxin levels in imported pistachios. All entities are expected to gain time and cost-savings as a result of this rule.

Based on 2015 information from CBP, the most recent data available to AMS, USDA estimates that there are 25 importers of potatoes from Canada, 13 importers of onions from Canada, and 12 importers of tomatoes from Canada. The Harmonized Tariff Schedule (HTS) codes of imports of potatoes, tomatoes, and onions that are subject to quality inspection are listed in Table 1. Using these codes, USDA retrieved data from the Global Agricultural Trade System (GATS), which is administered by the USDA's Foreign Agricultural Service (FAS).

Table 2 shows three-year average import volumes for potatoes, tomatoes, and onions from Canada and from all U.S. trading partners for the years 2015 through 2017. As shown in the fourth column, almost all potatoes imported into the United States come from Canada. About 13 percent of imported onions originate in Canada, as do 4 percent of tomatoes.

According to GATS data, potatoes account for approximately 28 percent of U.S. fresh vegetable import volume from Canada. Canada is the second-largest trading partner of the United States in terms of fresh vegetable import volume, accounting for 18 percent of fresh vegetable imports.

In-shell and shelled pistachio imports are also subject to quality inspection under section 8e requirements. Table 3 lists the HTS codes of imported pistachios subject to aflatoxin testing and the three-year average volume of imports from 2015 to 2017. Turkey is the largest supplier of both in-shell and shelled imported pistachios into the United States, supplying 74 percent and 66 percent of their totals, respectively. Altogether, Turkey accounts for 70 percent, on average, of total U.S. pistachio import volume. Greece supplies 14 percent of in-shell imports, and Italy supplies 14 percent of shelled imports.

In addition to importers, Customs brokers are expected to be impacted by the change in reporting requirements as a result of this rule. Customs brokers are hired by importers to coordinate and file the paperwork that allows an import to enter the country. Customs brokers, who may be private individuals or corporations, are authorized by CBP to assist importers and exporters in meeting Federal requirements governing trade. According to CBP, there are approximately 14,454 active licenses for Customs brokers in the United States.

MOAD, along with USDA and USDA-accredited laboratories, are the final groups expected to be impacted by this rule. MOAD ensures that imports subject to section 8e regulations meet the same quality standards as the commodity produced domestically. MOAD oversees the compliance of 14 such commodities that are subject to section 8e regulations. As of January 2019, there were nine USDA and USDA-accredited laboratories that perform chemical analysis on aflatoxin levels of pistachios. One of these laboratories is the USDA facility in Blakely, Georgia. The other eight are privately-owned USDA-accredited laboratories all in California.

In fiscal year 2018, CEMS received and processed 34,686 electronic filings of CFIA certification from CBP's ACE system. Importers and Customs brokers have commented that the multi-step paper-based filing process, which relied on the coordination of multiple parties, could take up to half a day to complete, compared to less than five minutes for filing electronically. Assuming an eight-hour workday, AMS concludes that CEMS may generate a time savings of four hours per filing for importers and Customs brokers. Applying this time savings to the number of electronic filings in CEMS in 2018 results in a total of 138,744 hours saved by importers and Customs brokers for the year. The Bureau of Labor Statistics reports a mean hourly wage for Office and Administrative Support Occupations of $19.58 as of May 2018. Multiplying the total hours of time saved by importers and Customs brokers who used CEMS to file electronically in 2018 by the hourly wage of an Office and Administrative Support worker in 2018 leads to an estimated baseline cost savings of $2,716,608.

In 2018 and prior to CEMS, MOAD required at least one full-time employee to manage the manual data-entry that accompanied the paper-based filing system. The time of this full-time employee represents a cost to the USDA of $83,462, which is the 2018 total compensation (wages and benefits) for a full-time employee at the GS-8, Step 1 pay-grade, adjusted for locality pay in the Washington, DC, region, and with benefits assumed to account for 39 percent of total compensation.

Based on industry feedback, AMS estimates that approximately 25 to 30 percent of Customs brokers and importers already used ACE to electronically file CFIA certification in fiscal year 2018, even though it was not yet mandatory. This speaks to importers' and Customs brokers' approval of CEMS and a willingness to file electronically. While businesses are generally drawn to practices that maximize efficiency and profits, the voluntary adoption of the electronic filing system by Customs brokers and importers has not been immediate. AMS attributes this to resistance to change. Since 2018, the portion of Customs brokers and importers to voluntarily utilize the system has increased to more than half. It may be true that over time, the incentives to maximize efficiency and profits would overcome resistance to change, and all Customs brokers and importers would voluntarily adopt the electronic filing system. AMS recognizes, therefore, that the estimated cost-savings attributed to this rule may be overstated in the analysis that follows.

Customs brokers and importers have responded positively to the change in reporting requirements, particularly in regard to the integration of CEMS in creating and filing an Importer Exempt Commodity Certificate (SC-6 form). Customs brokers and importers report to have had little or no difficulty in creating an electronic copy of the form in CEMS and report that using CEMS is an improvement compared to the former paper-based system. Based on feedback from the industry, the cost for Customs brokers and importers to use CEMS to electronically file CFIA certification will be minimal.

Assuming that the number of electronic filings is evenly distributed among importers and Customs brokers, and that the figure of 34,686 electronic filings represents 25 to 30 percent of the greater population of filings, AMS estimates that the total number of filings in 2018, both electronic and paper-based, to be between 115,620 and 138,744. Multiplying this range by the four hours required to complete the paper-based filing process results in 462,480 to 554,976 total hours required to complete the filing process prior to CEMS. The product of the total hours and the mean hourly wage of an Office and Administrative Support worker in 2018 is $9,055,358 to $10,866,430 in total costs to importers and Customs brokers to administer the paper-based filing process prior to CEMS. This range represents the potential cost-savings for all importers and Customs brokers to use CEMS, including those that had already adopted its use in 2018. Subtracting the baseline hours and cost-savings of 138,744 hours and $2,716,608 from the potential time and cost-savings for all importers and Customs brokers to use CEMS results in a range of additional time-savings of 323,736 to 416,232 hours and cost-savings of $6,338,751 to $8,149,823. Additionally, the streamlining of the process of gathering information and harmonizing data through CEMS results in a cost-savings to USDA of $83,462.

The requirement in this rule for USDA and USDA-accredited laboratories to report to USDA all test results of chemical analysis of aflatoxin levels in pistachios is expected to generate little to no change in costs or benefits for involved parties. This is because all nine laboratories currently provide USDA with both “meets” and “fails” aflatoxin test results voluntarily. Converting the process from reporting results of failed lots only on paper to instead reporting all results electronically does not result in substantial change in burden.

In accordance with Executive Order 13771, this action has been designated as neither regulatory nor deregulatory as its resultant costs and savings are de minimis.

Regarding alternatives to this action, AMS determined that these changes to the regulations are needed to comply with the ITDS mandate and to provide AMS with information it requires to ensure compliance with its regulations. CBP is requiring that all government agencies partnering on the ITDS initiative (including AMS) update their regulations to provide for the electronic entry of import and export shipment data. Providing for the entry of certificate information in ACE for potatoes, tomatoes, and onions imported from Canada that have been certified by CFIA as meeting section 8e requirements enhances AMS' ability to monitor compliance while also meeting the objectives of ITDS to streamline processes for the import trade. In addition, changing the pistachio regulations by revising the reporting requirements will streamline the regulations and reduce the burden on the trade. The other changes finalized in this action will provide the import trade with accurate information.

As this rule aims to streamline processes and improve efficiency, the only alternative considered was the status quo of a paper-based filing system and the reporting of only failed lots from aflatoxin tests to AMS. AMS believes that the changes in reporting requirements in this rule represent the best alternative to maximize benefits to importers, Customs brokers, MOAD specialists, and USDA and USDA-accredited laboratories.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (5 U.S.C. 601-612), AMS has considered the economic impact of this action on small entities. AMS has prepared this final Regulatory Flexibility Analysis, the purpose of which is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened.

Importers of Canadian potatoes, onions, and tomatoes that are certified by CFIA as meeting section 8e standards are not currently required to submit this certification to AMS prior to import. By mandating that AMS receive proof of CFIA certification through electronic entry of CFIA certificate numbers and electronic copies of certificates, AMS can better ensure compliance of imports with section 8e standards.

Similarly, the requirement in this rule for USDA and USDA-accredited laboratories to electronically submit all aflatoxin test results to USDA will replace outdated reporting practices and promote greater efficiency. Currently, these laboratories are required to submit documentation for all lots of imported pistachios that fail the test for aflatoxin to USDA, CBP, and the importer. The importer is also required to submit documentation to USDA and CBP for lots that fail the test for aflatoxin when lots are reworked for further testing, or are exported, sold for non-human consumption, or destroyed. This rule eliminates the need for these documents, replacing them with the requirement that laboratories electronically report all aflatoxin test results (both “meets” and “fails”) to USDA. Importers already receive these results from laboratories and CBP has reported that it does not need to receive documentation of aflatoxin test results.

This final rule changes the import regulations for potatoes, onions, and tomatoes by requiring proof of CFIA certification through electronic entry of CFIA certificate numbers and electronic copies of certificates. Prior to import into the United States, importers must enter into CBP's ACE system the certificate number and upload an electronic image of the certificate for those shipments certified by CFIA as meeting section 8e requirements. This information is then transmitted through CEMS to AMS. If an importer is unable to provide this information electronically in ACE, a copy of the certificate must accompany the shipment at entry into the country, and the importer must also submit a copy of the certificate to AMS via email, mail, or facsimile.

This final rule also changes the pistachio import regulations by modifying the reporting requirements for USDA and USDA-accredited laboratories that perform chemical analysis of aflatoxin levels in imported pistachios. The regulations will require these laboratories to submit all aflatoxin test results to USDA instead of only the results of failed lots.

This final rule is issued under section 8e of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” Section 8e provides that whenever certain commodities are regulated under Federal marketing orders, imports of those commodities into the United States are prohibited unless they meet the same or comparable grade, size, quality, and/or maturity requirements as those in effect for the domestically-produced commodities. The Act also authorizes the U.S. Department of Agriculture (USDA) to perform inspections on those imported commodities and to certify whether those requirements have been met.

Parts 944, 980, and 999 of title 7 of the Code of Federal Regulations (CFR) specify inspection, certification, and reporting requirements for imported commodities regulated under section 8e, including the governmental inspection services that are authorized to perform certification.

There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of import regulations issued under section 8e of the Act.

USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this final rule.

A 30-day comment period ending January 5, 2017, was provided to allow interested persons to respond to the proposal. The import industry, USDA laboratories, and USDA-accredited laboratories are aware of ITDS and its goal to streamline processes. Members of the import industry have attended annual ITDS Trade Support Network plenary sessions conducted by the U.S. Government over the past few years. No comments were received on the proposed rule; accordingly, no changes will be made to the rule as proposed.

Importers of potatoes, tomatoes, onions, and pistachios may be engaged in a variety of different industries and in varying segments of the supply chain. The North American Industry Classification System (NAICS) categorizes industries based on their activities. Table 5 lists potential industries with which importers may be involved that may be impacted by this rule, along with information about their sizes.

Potatoes, tomatoes, onions, and pistachios may be imported for further processing or be re-entered into the stream of commerce as a fresh market product. For example, an importer of potatoes in the food manufacturing industry (Subsector 311) may utilize imports for frozen French fries or dehydrated potatoes. An importer may also purchase fresh potatoes to sell to restaurants as a wholesaler (Subsector 424), or to sell in a supermarket or grocery store (Subsector 445). According to 2016 data from the U.S. Census Bureau, most firms in the industries listed in Table 5 employ fewer than 100 people. Time-savings from the automation that CEMS provides is expected to particularly benefit importers with a smaller workforce.

The Small Business Administration (SBA) determines standards by which entities are considered to be “small”. These standards may be determined by the average annual receipts or the average employment of a firm. Table 6 shows the small business standards for the industries in which importers of potatoes, tomatoes, onions, and pistachios may be employed. Table 6 also shows the portion of businesses in these industries likely to be considered “small”, using the information in Table 5.

The industries listed in Table 6 under NAICS Code Subsectors 311 and 424 have small business standards based on number of employees. Using the information in Table 5 on business firm size, AMS concludes that most importers of potatoes, tomatoes, onions, and pistachios in these industries are likely considered “small”. The industries listed in Table 6 under NAICS Code Subsector 445 have small business standards based on average annual receipts. The U.S. Census Bureau, unfortunately, does not publish retail sales data specific to six-digit NAICS Code. AMS, therefore, used the business firm size data in Table 5 to estimate sales by businesses with NAICS Codes 445110 and 445292 based on the retail sales data of all businesses under NAICS Code Subsector 445. In this estimate, AMS assumes retail sales to be evenly spread among all industries falling within NAICS Code Subsector 445. The results are average annual sales receipts of $1.15 million for Confectionary and Nut Stores, and $14.5 million in average annual sales receipts for Supermarkets and Other Grocery Stores. The majority of businesses in these industries are, therefore, likely “small”.

As of January 2019, there were a total of nine USDA and USDA-accredited laboratories that perform chemical analysis on aflatoxin levels of pistachios. One of these laboratories is the USDA facility in Blakely, Georgia. As a government entity, it is not subject to RFA analysis. The other eight are privately-owned USDA-accredited laboratories in California. The SBA classifies testing laboratories (NAICS code 541380) as small businesses if they receive no more than an average of $15 million annually. AMS could find no data on the average annual receipts of testing laboratories and is, therefore, unable to determine whether these eight USDA-accredited laboratories would be considered small businesses under the SBA standards.

Regarding alternatives to this action, AMS determined that these changes to the regulations are needed to comply with the ITDS mandate and to provide AMS with information it requires to ensure compliance with its regulations. CBP is requiring that all government agencies partnering on the ITDS initiative (including AMS) update their regulations to provide for the electronic entry of import and export shipment data. Providing for the entry of certificate information in ACE for potatoes, tomatoes, and onions imported from Canada that have been certified by CFIA as meeting section 8e requirements enhances AMS' ability to monitor compliance while also meeting the objectives of ITDS to streamline processes for the import trade. In addition, changing the pistachio regulations by revising the reporting requirements will streamline the regulations and reduce the burden on the trade. The other changes finalized in this action will provide the import trade with accurate information.

AMS is committed to complying with the E-Government Act to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this final rule.

AMS conducted extensive stakeholder outreach as part of this rulemaking. During the summer of 2015, AMS staff members participated in 13 outreach sessions to the U.S. import industry. The sessions took place both in person as well as via webcast. The goal of these sessions was to introduce the new ACE system and the government agencies that are participating in the program. USDA presented extensive overviews of the proposed regulations and encouraged the trade to participate by creating their own companion software. Additionally, through 2017 and 2018, AMS staff coordinated extensively with CBP to prepare for the changes detailed in this Rule.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

AMS has reviewed this final rule in accordance with Departmental Regulation 4300-4, Civil Rights Impact Analysis (CRIA), to identify and address any major civil rights impacts the rule might have on any protected groups of people. After a careful review of the rule's intent and provisions, AMS has determined that this rule would not disproportionately or adversely impact any importers of commodities regulated under section 8e who are members of any protected group or employees of any USDA or USDA-accredited laboratories who are members of any protected group.

For the reasons set forth in the preamble, 7 CFR parts 944, 980, and 999 are amended as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it supports modifying the air traffic service route structure in the western United States to maintain the efficient flow of air traffic.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2019-0846 in the Federal Register (84 FR 67385; December 10, 2019), amending VOR Federal airway V-165 in the western United States. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

Domestic VOR Federal airways are published in paragraph 6010, of FAA Order 7400.11D dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airway listed in this document will be subsequently published in the Order.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

This document amends FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11D lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is amending Title 14 Code of Federal Regulations (14 CFR) part 71 by amending domestic VOR Federal airway V-165. The route change is outlined below.

V-165: V-165 is amended on the segment between Tule, CA, VOR/DME and the Mustang, NV, VORTAC. The ATS route will stop at EXTRA intersection (INT Tule, CA 339° and Avenal, CA, 042° radials) and then resume at MARRI intersection (INT Squaw Valley, CA 133° and Mustang, NV, 183° radials). The unaffected portion of the existing federal airway will remain as charted.

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 Department of Transportation (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. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action of amending domestic VOR Federal airway V-165 in the western United States qualifies for categorical exclusion under the National Environmental Policy Act and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this action is not expected to cause any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the route structure in the National Airspace System as necessary to preserve the safe and efficient flow of air traffic.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2017-0665 in the Federal Register (82 FR 40737; August 28, 2017) amending VOR Federal airways V-56, and V-209 due to the planned decommissioning of the Kewanee, MS, VORTAC. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. One comment was received.

The Aircraft Owners and Pilots Association (AOPA) stated that, when VOR NAVAIDs are to be decommissioned and routes correspondingly removed, the FAA should create an Area Navigation (RNAV) waypoint (WP) at the previous NAVAID location, and retain all fixes and intersections along the removed route by converting them to RNAV waypoints.

The FAA established the KWANE, MS, WP located near the current location of the Kewanee VORTAC. In a separate rulemaking action, the FAA established a new RNAV route, designated T-239 that replaces V-56 between Meridian, MS, and Montgomery, AL; and RNAV route T-292 that replaces V-209 between the YARBO, AL, fix, and the EUTAW, AL, fix. Selected fixes along the affected route sections are incorporated in T-239 and T-292.

VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11D dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document would be subsequently published in the Order.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

The NPRM incorrectly listed the wrong location for the Kewannee VORTAC; correct location is Kewannee, MS. The NPRM proposed to amend V-56 by removing the airway segments between Meridian, MS, and Tuskegee, AL. The FAA has decided to retain the segment between Montgomery, AL and Tuskegee, AL in order to join T-290 at Montgomery.

The FAA is amending Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying VOR Federal airways V-56 and V-209. The planned decommissioning of the Kewanee, MS, VORTAC has made these actions necessary. The VOR Federal airway changes are outlined below.

V-56: V-56 currently extends between the Meridian, MS, VORTAC and the New Bern, NC, VOR/DME. This rule removes the airway segments between the Meridian, MS, VORTAC and the Montgomery, AL, VOR/DME. As amended, V-56 extends between Montgomery, AL, and New Bern, NC as currently charted.

In a separate action, (84 FR 64989; November 26, 2019) the FAA established RNAV route T-290 that extends between the HABJE, MS, fix (west of the Meridian, MS, VORTAC) and the JACET, GA, waypoint. T-290 replaces V-56 between Meridian, MS, and Montgomery, AL.

V-209: V-209 currently extends between the Semmes, AL, VORTAC and the Choo Choo, TN, VORTAC. This action removes the Kewanee, AL, VORTAC from the route, resulting in a gap in the airway between the intersection of the Semmes, AL, 356° and Eaton, MS, 080° radials ( i.e., the charted YARBO, AL, fix, located approximately 43 NM north of Semmes, AL), and the intersection of the Bigbee, MS 139°(T)/135°(M) and Brookwood, AL 230°(T)/230°(M) radials ( i.e., the charted EUTAW, AL, fix, located approximately 41 NM northeast of Kewanee). Therefore, the amended V-209 route consists of two sections: first, between Semmes, AL, and the YARBO fix; and, after the gap, V-209 resumes between the EUTAW fix to Choo Choo, TN as currently charted.

In the above separate action, the FAA established RNAV route T-292 that extends between Semmes, AL, and the JACET, GA, WP. T-292 replaces V-209 between the YARBO, AL, fix and the EUTAW, AL, fix.

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 Department of Transportation (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. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action of modifying VOR Federal airways V-56 and V-209 near Kewanee, MS, qualifies for categorical exclusion under the National Environmental Policy Act and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the National Airspace System as necessary to preserve the safe and efficient flow of air traffic.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2019-0431 in the Federal Register (84 FR 28434; June 19, 2019), amending VOR Federal airway V-159 due to the planned decommissioning of the Hamilton, AL, VORTAC. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11D dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airway listed in this document will be subsequently published in the Order.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

This document amends FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11D lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

V-159 currently extends between the Virginia Key, FL, VOR/DME and the Huron, SD, VORTAC. This rule removes the segments of V-159 between the Vulcan, AL, VORTAC, and the Holly Springs, MS, VORTAC. This is due to the planned decommissioning of the Hamilton, AL, VORTAC which provides navigation guidance for the route between Vulcan and Holly Springs. As amended, V-159 consists of two sections. The first section extends between Virginia Key, FL, and Vulcan, AL, as currently charted. This is followed by a gap in the route between Vulcan, AL, and Holly Springs, MS. The second section extends between Holly Springs, MS, and Huron, SD, as currently charted.

To mitigate the removal of V-159 between Vulcan, AL, and Holly Springs, MS, a low altitude area navigation (RNAV) route, designated T-239, was established effective January 30, 2020 (84 FR 28434; June 19, 2019). T-239 extends between the Pecan, GA, VOR/DME, and the GOINS, MS, waypoint (near the Holly Springs, MS, VORTAC). T-239 replaces V-159 between Vulcan, AL and Holly Springs, MS, and also overlies those parts of V-159 between Pecan, GA, and Vulcan, AL. Alternative routing for VOR navigation between Vulcan, AL, and Holly Springs, MS, is available via existing airway V-7 between Vulcan, AL, and the Muscle Shoals, AL, VORTAC; then airway V-54 between Muscle Shoals and Holly Springs.

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 Department of Transportation (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. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action of modifying VOR Federal airway V-159 near Hamilton, AL, qualifies for categorical exclusion under the National Environmental Policy Act and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it supports the air traffic service route structure in the southeastern United States to maintain the efficient flow of air traffic.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2019-0661 in the Federal Register (84 FR 50341; September 25, 2019) modifying RNAV routes Q-75, and Q-475 in the northeastern United States. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

Area navigation routes are published in paragraph 2006, of FAA Order 7400.11D dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The area navigation routes listed in this document will be subsequently published in the Order.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

This document amends FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11D lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is amending Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying RNAV routes Q-75 and Q-475, in the northeastern United States in support of the Northeast Corridor Atlantic Coast Route project.

The Q-route amendments are as follows:

Q-75: Q-75 currently extends between the ENEME, GA, WP, and the Greensboro, NC, (GSO) VORTAC. The amended route is extended from the Greensboro, NC, VORTAC northeast to the COPLY, MA, WP (approximately 20 NM east of the Boston, MA, (BOS) VOR/DME). Between the Greensboro, NC, VORTAC and the COPLY, MA, WP, the following points are added to the route: BROSK, NC, WP; DRAIK, VA, Fix; Gordonsville, VA, (GVE) VORTAC; HAMMZ, VA, WP; TOOBN, MD, WP; MURPH, MD, Fix; SACRI, MD, Fix ; STOEN, PA, Fix; Modena, PA, (MXE) VORTAC; COPES, PA, Fix; BIGGY, NJ, Fix; Solberg, NJ, (SBJ) VOR/DME; JERSY, NJ, Fix; DUEYS, NY, Fix; BIZEX, NY, WP; GREKI, CT, Fix; NELIE, CT, Fix; SWALO, MA, Fix; and the Boston, MA, (BOS) VOR/DME. This change provides RNAV routing between Greensboro, NC and the Boston, MA, area.

Q-475: Q-475 currently extends between the TUSKY, OA, Fix and the PERLU, Canada, WP. This action extends Q-475 from the TUSKY, OA, Fix westward to the COPLY, MA, WP (located approximately 20 NM northeast of the Boston, MA, VOR/DME). The CANAL, MA, WP, and the SCUPP, OA, Fix are added between the TUSKY Fix and the COPLY WP.

Full route descriptions of the proposed amended routes are listed in “The Amendment” section of this notice.

The amended routes in this notice will significantly expand the availability of high altitude RNAV routing along the eastern seaboard of the U.S. The project is designed to increase airspace capacity and reduce complexity in high volume areas through the use of optimized routes through congested airspace.

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 Department of Transportation (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. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action of modifying high altitude RNAV Q-75 and Q-475 qualifies for a categorical exclusion under the National Environmental Policy Act and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F—Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this action is not expected to cause any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, this action has been reviewed for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis, and it is determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment 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 by the Administrator, part 95 of the Federal Aviation Regulations (14 CFR part 95) is amended as follows effective at 0901 UTC, January 30, 2020.

For the reasons described in the preamble and the authority as set out in the February 24, 2020 final rule (85 FR 10274), this document provides the correcting amendment to remove “Yemen” from the list of “Country Group B—Countries” in Supplement No. 1 to part 740 of the EAR.

Accordingly, part 740 of the Export Administration Regulations (15 CFR parts 730-774) is corrected by making the following correcting amendment:

1. On July 18, 2019, the Commission issued Order No. 860, 1 which revised certain aspects of the substance and format of information submitted for market-based rate purposes by Sellers. 2 Specifically, the Commission adopted the approach to data collection proposed in the notice of proposed rulemaking issued in July 2016, i.e., to collect market-based rate information in a relational database. 3 However, the Commission declined to adopt the proposal to require Sellers and entities, other than those described in FPA section 201(f), 4 that trade virtual products  5 or that hold financial transmission rights (FTR)  6 (Virtual/FTR Participants) to report certain information about their legal and financial connections to other entities (Connected Entity Information). In this order, we address requests for rehearing and clarification of Order No. 860. 7

2. Six requests for rehearing and/or clarification were filed. 8 The requests for rehearing and clarification concern the following subjects: (1) Ownership information, including ultimate upstream affiliates;  9 (2) passive owners; (3) Connected Entity proposal; (4) implementation and components of the Data Dictionary; (5) public access; and (6) due diligence requirements.

3. We deny the requests for rehearing, and grant in part and deny in part the requests for clarification, as discussed below.

4. In Order No. 860, the Commission adopted the proposal to require that, as part of their market-based rate applications or baselines submissions, Sellers must identify through the relational database their ultimate upstream affiliate(s). The Commission explained that, because this is a characteristic the Commission will rely upon in granting market-based rate authority, Sellers must also inform the Commission when they have a new ultimate upstream affiliate as part of their change in status reporting obligations. In addition, the Commission required that any new ultimate upstream affiliate information must also be submitted into the relational database on a monthly basis. 10

5. NRG/Vistra seeks clarification solely with respect to implementation issues relating to identifying and reporting a Seller's ultimate upstream affiliate(s) where holdings of publicly traded voting securities are involved. 11 NRG/Vistra first argues that an investor should not be considered a Seller's ultimate upstream affiliate based solely on holdings of publicly traded securities. According to NRG/Vistra, where publicly traded securities are involved, applying the ultimate upstream affiliate definition will yield false positives and fail to recognize the control exercised by the publicly traded entity. In this regard, NRG/Vistra asserts that the Commission has granted financial institutions blanket authorizations under FPA section 203(a)(2) to acquire 10 percent or more of the voting securities of public utilities based on its understanding that these institutions are acquiring such interests “in the ordinary course of business and as a passive investor ( i.e., not to gain control of the [public u]tilities),” and that their holdings of such securities will “not convey control of day-to-day operations of jurisdictional facilities.”  12

6. As an example, NRG/Vistra states that the Vanguard Group, Inc. (Vanguard) has reported that it, together with certain related entities, owns more than 10 percent of the shares of NRG's common stock. NRG/Vistra maintains that, although these shares are voting securities, there is no reason to regard Vanguard as “controlling” NRG or its Seller subsidiaries in any respect relevant to the Commission's analysis and monitoring of Sellers as Vanguard has reported its holdings of NRG's common stock to the Securities and Exchange Commission (SEC) through Schedule 13G filings. NRG/Vistra explains that the Commission has recognized that, in order to file a Schedule 13G, an investor must certify that the securities were not acquired for the purpose, or with the effect, of changing or influencing control over the issuer. NRG/Vistra also states that Vanguard has obtained a blanket section 203(a)(2) authorization similar to the other section 203(a)(2) blanket authorizations in recognition that it is acquiring the shares of entities like NRG on behalf of investors in its managed funds exclusively for investment purposes, not for the purpose of managing, controlling, or entering into business transactions with portfolio companies. NRG/Vistra argues that, if NRG's Seller subsidiaries were to identify Vanguard as their ultimate upstream affiliate, it would inaccurately suggest that they are under common control with other Sellers in which Vanguard and its affiliates might also own 10 percent voting interests. NRG/Vistra adds that NRG itself would not appear in the relational database in this case. 13

7. Accordingly, NRG/Vistra requests that the Commission clarify that an investor (or investor group) will not be considered a Seller's ultimate upstream affiliate based solely on holdings of publicly traded securities. NRG/Vistra explains, in other words, where the voting securities of a Seller's upstream owner are publicly traded, the exercise of tracing upstream ownership will stop at the publicly traded entity unless the facts and circumstances suggest that a holder of 10 percent or more of the publicly traded voting securities has an intent and ability to exercise control over the publicly traded entity and its subsidiaries. NRG/Vistra posits that the Commission could find that, unless the publicly traded entity states otherwise, the Commission will presume that any holder of 10 percent or more of the entity's securities does not have an intent and ability to exercise control over the publicly traded entity and its subsidiaries. NRG/Vistra adds that, if such facts and circumstances change, the publicly traded company could commit to notify the Commission within 30 days upon notice of that change. NRG/Vistra contends that, at minimum, investors that have made Schedule 13G filings with the SEC or that have obtained blanket FPA section 203 authorizations should not be considered ultimate upstream affiliates because such investors have affirmatively represented that they do not hold the securities for control purposes. 14

8. However, if the Commission does not grant this clarification, NRG/Vistra requests that, where there is a change resulting from trading publicly traded securities, the change be deemed to occur when the Seller had actual or constructive notice of the change. NRG/Vistra argues that the Commission has acknowledged the difficulty of tracking secondary market transactions and that, as a general matter, publicly traded companies rely on after-the-fact investor filings with the SEC, including (but not limited to) Schedule 13D and 13G filings, for information about when a given investor or investor group has acquired significant holdings of their shares. 15 NRG/Vistra maintains that, where Schedule 13D and 13G filings are made, the Seller will receive actual or constructive notice that an investor has acquired 10 percent or more of its publicly traded parent company's shares within 10 days after the end of the month of the underlying trades. NRG/Vistra posits that, by granting its request, Sellers will have a more reasonable amount of time to make its submission to update the database, which would lessen the burden on Sellers and reduce the chance of inaccurate submissions that would later have to be corrected. 16

9. We deny NRG/Vistra's request that the Commission clarify that an investor will not be considered a Seller's ultimate upstream affiliate based solely on holdings of publicly traded securities. This determination is consistent with current Commission requirements, i.e., that Sellers must identify all upstream owners. 17 When the final rule takes effect, this determination will also be consistent with the requirement to report all ultimate upstream affiliates. 18

10. More importantly, however, this determination is consistent with the affiliate definition in § 35.36(a)(9). 19 Among other things, the affiliate definition provides that an affiliate of a specified company means “any person that directly or indirectly owns, controls, or holds with power to vote, ten percent or more of the outstanding voting securities of the specified company.”  20 The Commission established in the final rule that the definition of ultimate upstream affiliate “means the furthest upstream affiliate(s) in the ownership chain” including “any entity described in § 35.36(a)(9)(i).”  21 There is no exemption under either of these definitions for entities that hold publicly traded securities. Rather, to exempt these entities from this definition would require a change to the affiliate definition in § 35.36(a)(9)(i) because the determining criterion is voting securities. Neither the NOPR nor the final rule proposed or considered any change to the substance of the affiliate definition. For this reason, we also find NRG/Vistra's request to be outside of the scope of this rulemaking as it is not a logical outgrowth of the NOPR or final rule. 22

11. In addition, once the relational database is implemented, consistent and complete information on ultimate upstream affiliates will be crucial for database integrity and accuracy, given that the information in the database may affect a multitude of filers. Therefore, to ensure the relational database functions as intended, it would not be appropriate for the Commission to sever the chain of affiliation with respect to holders of publicly traded securities and preemptively find that they are not ultimate upstream affiliates. NRG/Vistra alternatively requests that the Commission stop tracing upstream ownership at publicly traded entities unless the facts and circumstances indicate that a holder of 10 percent or more of the securities has an intent and ability to exercise control over the publicly traded entity. We decline to adopt this subjective approach, given that it is critical that ultimate upstream affiliates be consistently reported to the database.

12. We also deny NRG/Vistra's alternative request to allow publicly traded Sellers or the Seller subsidiaries of publicly traded companies extra time to file updates to the relational database. Although we appreciate that tracking trading in a publicly traded ultimate upstream affiliate may be difficult, the requirement to identify upstream affiliates is not a new requirement. Currently, a Seller owned by a publicly traded company, like a Seller with any other type of owner, must timely report to the Commission any changes in the conditions the Commission relied upon when granting it market-based rate authority, which typically include any changes in ownership such as new affiliations. These reports must be made within 30 days of the date of that change. 23 When Order No. 860 takes effect, Sellers will continue to have at least 15 days to incorporate, in their monthly database submissions, any relevant changes to their ultimate upstream affiliate(s). 24 Given that Sellers will still have at least 30 days to submit their notice of change in status filings, we do not believe that Sellers potentially having as few as 15 days to make their database submissions is a significant change from current practice such that Sellers with publicly traded ultimate upstream affiliates will necessarily require additional time to report changes regarding their ultimate upstream affiliates.

13. In addition, granting this alternative request would affect the timing of quarterly notice of change in status filings, as certain ownership changes could be reported approximately 75 days after the relevant transaction occurs. 25 This could result in Sellers not having the most up-to-date information in their notice of change in status filings and triennial filings. Consequently, we deny NRG/Vistra's alternative request.

14. In Order No. 860, the Commission adopted the proposal to require Sellers to make an affirmation, in lieu of a demonstration, in their market-based rate narratives concerning their passive owners. The Commission explained that such a demonstration is unnecessary, given that the Commission does not make a finding of passivity in its orders granting market-based rate authority and that removing this demonstration will ease the burden on filers. 26

15. The Commission also clarified the nature of the proposed affirmation regarding passive owners. Specifically, “[w]ith respect to any owners that a Seller represents to be passive, the Seller must identify such owner(s), and affirm in its narrative that the ownership interests consist solely of passive rights that are necessary to protect the passive investors' or owners' investments and do not confer control.”  27 The Commission also clarified that it will continue to require change in status filings when passive interests arise in a Seller that has received market-based rate authority, so that the Seller can make the necessary affirmations. However, the Commission provided that, in this context, a Seller only needs to make a change in status filing to report and affirm the status of new passive owners as passive and need not submit any additional information into the relational database. 28

16. In addition, the Commission clarified that it is not changing existing policy regarding the definition of a passive investor and that specific clarifications on that policy are beyond the scope of this proceeding. The Commission explained that, in most circumstances, a determination as to passivity is fact-specific and that, if a Seller is uncertain whether an investment is passive, it may file a petition for declaratory order. 29 Indeed, the Commission emphasized that nothing in Order No. 860 is intended to overturn the Commission's case-specific determinations as to passivity and an entity's reporting obligations under previously issued declaratory orders. 30

17. As to obligations regarding the relational database, the Commission concluded that passive owners need not be reported in the database as ultimate upstream affiliates. The Commission also did not require that a Seller report the identity of its passive owners in the database. Further, the Commission clarified that, if a Seller can make the requisite affirmation regarding passive ownership, it would not need to list the assets associated with any such passive owner in its asset appendix. 31 The Commission stated, however, in footnote 209 of the final rule that “Sellers should provide the identity of new passive owner(s) in their narratives when making their passive affirmation.”  32

18. FMP requests clarification or, in the alternative, rehearing with respect to footnote 209 of the final rule. As background, FMP explains that many entities subject to the final rule are owned by or associated with one or more passive, non-managing owners. FMP states that the Commission has recognized the widespread nature of the passive ownership of public utilities and notes that the final rule referred to several instances where the Commission treatment of non-voting ownership interests indicated that they are outside the scope of the jurisdiction of the FPA. 33

19. FMP asserts that footnote 209 is inconsistent with paragraphs 140 and 141 of the final rule, which state that Commission treatment of passive ownership is not being changed and that a passive owner need not be identified in the filing materials that are established and described in the final rule. FMP contends, however, that footnote 209 substantially changes the Commission's existing policy. 34

20. FMP argues next that footnote 209 is inconsistent with Commission precedent. FMP contends that nowhere in Starwood, for example, does the Commission require the submission of the identities of passive owners; FMP asserts that Starwood instead states that public utilities submitting market-based rate materials to the Commission “do not need to identify the [passive investors] in any future section 205 market-based rate application, updated market power analysis, or notice of change in status.”  35

21. FMP contends that footnote 209 also substantively contradicts other recent, controlling precedent on this issue. FMP asserts that, “in Ad Hoc Renewable Energy Financing Group, [ 36 ] the Commission referenced and confirmed without deviation exactly the conclusions stated in AES Creative and Starwood with respect to passive ownership . . . .”  37 However, FMP argues that the final rule does not explain footnote 209's departure from this precedent. 38

22. In addition, FMP argues that footnote 209's use of the word “new” in the context of “new passive owners” is unclear. FMP contends that Starwood expressly addresses the concept of new passive investors and applies to future passive investors, as long as the investment is actually passive. 39 Lastly, FMP asserts that the NOPR did not give notice that the Commission was considering a substantial change to Starwood, AES Creative, and Ad Hoc along the lines of footnote 209. 40

23. If the Commission does not clarify that footnote 209 does not apply to a passive investment that is consistent with Starwood, AES Creative, or Ad Hoc, FMP requests that the Commission grant rehearing of footnote 209 on the grounds that: (1)The legal standard applied in footnote 209 is contrary to the facts present in the other provisions of the final rule and Commission precedent relied on in the final rule; (2) footnote 209 lacks adequate support and does not represent reasoned decision-making because it misrepresents the Commission's holdings in paragraphs 140 and 141 of the final rule; (3) footnote 209 lacks adequate support and does not represent reasoned decision-making because the Commission failed to examine the specific Commission orders on which the Commission relied on in the final rule and to apply its own precedent in a consistent fashion; and (4) footnote 209 departed from the Commission's precedent without notice in the NOPR such that the departure was arbitrary, capricious, or otherwise unlawful and in violation of FMP's rights. 41

24. Starwood also requests clarification with respect to footnote 209 of the final rule and incorporates the entirety of FMP's pleading as part of its own request. Starwood argues that footnote 209 is inconsistent with prior Commission precedent, including Starwood's own 2015 declaratory order. 42 Starwood contends that one of the primary reasons it sought a declaratory order was to obtain a definitive ruling from the Commission that it did not need to disclose the identity of its passive owners. Starwood argues that other similarly situated private equity funds and fund managers have relied on Starwood since that time. Starwood requests that the Commission clarify that nothing in the final rule, specifically footnote 209, will change existing Commission precedent, which Starwood argues clearly provides that parties do not need to disclose the identity of their passive owners. 43

25. TAPS requests clarification regarding the affirmation a Seller must make if it has passive owners. According to TAPS, the classification of owners as active or passive is critical to the Commission's analysis of whether to grant market-based rate authority to a Seller. TAPS explains that the classification determines affiliation, which triggers several market-based rate reporting requirements, and that the Commission required in Order No. 816 that Sellers need not include in their asset appendices entities or facilities if they have claimed and demonstrated that the relationship with those entities or facilities is passive. 44

26. TAPS explains that, with respect to the relational database, distinguishing between passive owners and affiliates takes on greater importance. TAPS contends that failing to do so will substantially frustrate the Commission's ability to regulate the exercise of market power and ensure just and reasonable rates. 45

27. TAPS contends that the generalized affirmation requirement described in Order No. 860 is much less specific than what was proposed in the NOPR. 46 TAPS thus requests that the Commission clarify that, for each owner that a Seller identifies as passive, the Seller must specifically (1) affirm whether each passive owner owns a separate class of non-voting securities, has limited consent rights, does not exercise day-to-day control over the company, and cannot remove the manager without cause; and (2) provide information sufficient to show that the Seller performed the requisite investigation for these affirmations. 47 According to TAPS, this clarification will allow the Commission to ensure that Sellers are complying with the Commission's existing policy regarding the definition of a passive investor and impose little, if any, additional burden on Sellers as they must already identify and investigate each of these four attributes of the ownership interests to make the affirmation. 48

28. TAPS adds that requiring Sellers to include this basic information in their market-based rate filings is consistent with existing Commission practice and does not require a determination as to passivity. TAPS references the EquiPower Resources Management, LLC proceeding, in which Commission staff issued a letter with several questions regarding the passive nature of the ownership interests involved in the application for market-based rate authorization. 49 TAPS states that the Commission then granted the application by letter order without making any determination as to the passive ownership interests. TAPS points out that these questions concern the same matters as the NOPR's proposed affirmation requirement. TAPS asks that the Commission make clear that a “narrative that the ownership interests consist solely of passive rights that are necessary to protect the passive investors' or owners' investments and do not confer control” include responses to these questions. 50

29. If the Commission does not grant this clarification, TAPS requests rehearing of the Commission's decision to allow Sellers to make an affirmation instead of a demonstration regarding passive ownership interests. 51 TAPS asserts that this vague affirmation requirement is contrary to the Commission's obligations under the FPA and represents an unexplained departure from the Commission's prior requirement in Order No. 816  52 that Sellers demonstrate passivity. According to TAPS, although the Commission stated that a demonstration is unnecessary given that the Commission makes no findings as to passivity in its orders granting market-based rate authority, the Commission did not explain the departure from the requirement in Order No. 816 that Sellers demonstrate passivity before excluding certain information from asset appendix entries. 53 TAPS contends that the Commission's statement that it is not changing the substantive standards governing a determination of passivity, or the timing of such a determination, does not justify a change in Sellers' reporting obligations. 54

30. We deny clarification and rehearing with respect to the Commission's directive in footnote 209 of the final rule that “Sellers should provide the identity of new passive owner(s) in their narratives when making their passive affirmation.”  55 FMP and Starwood argue that this directive is inconsistent with provisions in the final rule as well as Commission precedent. FMP and Starwood also contend that footnote 209 represents a departure from Commission precedent and the NOPR did not provide notice of this change. We disagree for the reasons discussed below.

31. FMP and Starwood misread the Commission's discussion of passive ownership in the final rule, including the clarification regarding new passive owners in footnote 209. The only substantive change the Commission made regarding passive interests in the final rule was to require Sellers to make an affirmation, in lieu of a demonstration, in their market-based rate narratives concerning their passive ownership interests. 56 The Commission concluded that such a demonstration was unnecessary because it makes no findings regarding passivity in its orders granting market-based rate authority and thus an affirmation would reduce the burden on filers. 57 In addressing a comment in the final rule, the Commission noted that “passive owners need not be reported in the database”  58 and, in footnote 209, it only clarified that Sellers should provide the identities of the owners they are claiming to be passive in their transmittal letters. It is not inconsistent to say that passive owners need to be identified in the narrative but do not need to be reported in the database. Moreover, providing the names of such owners is consistent with current practice. 59 The use of “new” in footnote 209 means Sellers will only need to make the affirmation for, and provide the identify of, passive owners whom they have not previously identified to the Commission in a market-based rate proceeding. 60

32. In addition, we disagree with FMP and Starwood that footnote 209 is inconsistent with Commission precedent. In the final rule, the Commission expressly provided that nothing in the final rule would impact, let alone overturn, the Commission's case-specific determinations as to passivity and an entity's reporting obligations under previously issued declaratory orders. 61 Consistent with current Commission policy, Sellers must continue to disclose new passive owners should the Seller acquire them unless those Sellers received case-specific determinations as to passivity and reporting obligations under a declaratory order. Thus, the entities that are the subject of the AES Creative, Starwood, and Ad Hoc declaratory orders may continue to rely on the determinations as to passivity in those orders as well as the associated reporting obligations. However, to the extent that entities not subject to those orders have relied on those orders for reporting obligations, we clarify that those entities must comply with the Commission's current policy described above and, when the final rule takes effect, as articulated in the final rule.

33. For these reasons, we also disagree with FMP and Starwood that the NOPR provided insufficient notice of a change in filing requirements regarding passive ownership. The Commission changed no aspect of its policy on passive owners except for reducing a Seller's burden from a demonstration to simple affirmation. What FMP and Starwood characterize as a change to Commission policy in footnote 209 is only an explanation regarding existing policy, which will remain unchanged when the final rule takes effect.

34. We also deny clarification with respect to TAPS's request that the affirmation: (1) Affirm whether each passive owner owns a separate class of non-voting securities, has limited consent rights, does not exercise day-to-day control over the company, and cannot remove the manager without cause; and (2) provide sufficient information to show that a Seller performed an investigation for the affirmation. Likewise, we deny TAPS's alternative request for rehearing on the Commission's decision to allow Sellers to make an affirmation instead of a demonstration regarding passive ownership interests.

35. Although we agree with TAPS that, for the relational database to function correctly and as intended, owners must be properly classified as passive, we decline to grant rehearing to require, as TAPS requests, that the affirmation specifically affirm each of the four attributes of passivity identified in the NOPR and for each Seller to provide sufficient information to show that the Seller performed the requisite investigation for the affirmation. First, Order No. 860's requirement that a Seller identify passive owners and affirm in its narrative that the ownership interests consist solely of passive rights that are necessary to protect the passive investors' or owners' investments and do not confer control is taken from AES Creative's requirements for passive ownership interests. 62 As contemplated in AES Creative, passive owners cannot hold voting securities, have more than limited consent/veto rights, or allow day-to-day control over a company. 63 In addition, the Commission clarified in Order No. 860 that “absent a Commission order to the contrary, an owner who can remove the manager without cause is not considered passive.”  64 Thus, we reiterate here that unless the Commission specifically finds otherwise in a particular case, a Seller will not be able to make the passive affirmation where the owner can remove the manager without cause. Given that Sellers cannot make the requisite affirmation unless they can affirm that the ownership interests meet the AES Creative requirements and do not allow an owner to remove the manager without cause, we decline to require the specificity that TAPS requests.

36. Similarly, we deny clarification with respect to the information to be provided in the affirmation. Prior to the final rule, Sellers were required to make a demonstration regarding passive ownership, even though the Commission made no findings with respect to whether these ownership interests were truly passive. Accordingly, in the final rule, the Commission chose to reduce the filing requirements associated with making passive ownership representations. To require Sellers to show that they have sufficient information to make the affirmation would be to effectively continue the demonstration requirement. As explained, Sellers cannot affirm that their ownership interests consist solely of passive rights that are necessary to protect the passive investors' or owners' investments and do not confer control unless they have verified that those ownership interests meet the requirements of AES Creative. These Sellers must also abide by a duty of candor when making any filings with the Commission. 65 For these reasons, we also deny TAPS's alternative request for rehearing.

37. In Order No. 860, the Commission declined to adopt the proposal to require Sellers and Virtual/FTR Participants to submit Connected Entity Information. The Commission acknowledged commenters' concerns about the difficulties and burdens associated with this aspect of the NOPR and, accordingly, transferred the record to Docket No. AD19-17-000 for possible consideration in the future as the Commission may deem appropriate. However, the Commission noted that the determination in the final rule to collect market-based rate information in a relational database will provide value to both the Commission's market-based rate and analytics and surveillance programs. 66

38. Joint Advocates request limited rehearing of the final rule and argue that the Commission erred: (1) By not applying the requirement to collect Connected Entity Information from Sellers and Virtual/FTR Participants; and (2) in failing to require Virtual/FTR Participants to abide by a duty of candor.

39. Joint Advocates first contend that the finding in the final rule that the Connected Entity reporting requirements are unduly burdensome is unsupported by the evidence and conclusory in nature. Joint Advocates argue that, although the final rule acknowledges that the Connected Entity Information proposal was among the most commented on, it says nothing more than there were many concerns raised about the difficulties and burden associated with the proposal. Joint Advocates contend that this statement alone does not support why the Commission failed to act on the proposal or why the proposal's benefits are outweighed by any burden. Joint Advocates assert that the final rule instead ignores the record except for a cursory statement about supporting comments. 67

40. Joint Advocates argue that the final rule focuses solely on comments regarding the proposal's alleged burdens but takes that evidence out of context. Joint Advocates contend, for example, that AVANGRID, Inc.'s (AVANGRID) and EEI's comments were critical of the burden imposed by the whole NOPR and that it is not reasoned decision-making to refer to these criticisms as if they apply only to the collection of Connected Entity Information. 68 Joint Advocates explain that the final rule references only one other set of comments, i.e., Berkshire Hathaway Energy Company's (Berkshire) comments, and that these comments note concerns with the previous Connected Entity proposal;  69 however, Joint Advocates argue that Berkshire does not ask the Commission to wholly set aside the Connected Entity proposal but rather raises issues specific to its own business model. Joint Advocates argue thus that Berkshire's comments do not support the final rule's decision to set aside the Connected Entity proposal. 70

41. Joint Advocates next assert that the final rule's preferential treatment for Virtual/FTR Participants is discriminatory in both intent and application. Joint Advocates assert that the Commission has long recognized that virtual products, transactions involving such products and that, accordingly, sellers of such products, i.e., Virtual/FTR Participants, are subject to the Commission's jurisdiction. 71 Joint Advocates also point out that Virtual/FTR Participants are similarly situated with other market Sellers in that they are capable of affecting Commission-jurisdictional market prices. Joint Advocates contend that, even if the Commission adopted the Connected Entity proposal, the overall reporting requirements would still be significantly less than those for Sellers and that, without the Connected Entity requirements, Virtual/FTR Participants, unlike Sellers, have no duty of candor under the Commission's regulations. According to Joint Advocates, the failure to adopt the Connected Entity proposal maintains a two-tiered regulatory scheme that is both unjust and unduly preferential and violates section 206 of the FPA. Joint Advocates argue that the appropriate remedy is to adopt the Connected Entity proposal and subject Virtual/FTR Participants to similar oversight as Sellers. 72

42. Lastly, Joint Advocates assert that the final rule deprives the Commission of important tools to address and combat market manipulation and fraud. Joint Advocates echo the concerns in the dissent, including with respect to the GreenHat Energy, LLC's default on its FTRs in the PJM market, and note the harm that could result from recidivist persons that commit fraud is real. 73

43. Joint Advocates request in the alternative that the Commission accept their comments in the record of Docket No. AD19-17-000. Joint Advocates also ask that the Commission expediently implement the Connected Entity proposal and any additional reforms offered in Docket No. AD19-17-000 given the clear potential for future market manipulation, fraud, and default. 74

44. As discussed below, we deny Joint Advocates' request for rehearing. We disagree with Joint Advocates' characterization of the Commission's determination in the final rule. The Commission did not state that the Connected Entity reporting requirements are “unduly burdensome,” rather the Commission stated that it “appreciate[s] the concerns raised about the difficulties of and burdens imposed by”  75 the Connected Entity proposal. Further, we disagree with Joint Advocates' assertion that the final rule takes evidence regarding the burden of the Connected Entity proposal out of context. We acknowledge that AVANGRID's and EEI's comments expressed concerns about the burdens associated with both the market-based rate and Connected Entity proposals. However, the final rule elsewhere addressed commenters' concerns with the market-based rate proposal and made adjustments, clarifications, and determinations as needed. 76

45. Regarding the Connected Entity proposal, the final rule did not detail all of the commenters' concerns. For example, commenters expressed concerns with the proposal, specifically with the proposed definition of “trader,”  77 the scope of the proposal, 78 and other aspects of the Connected Entity proposal. 79 Ultimately, in the final rule, the Commission noted AVANGRID's, EEI's, and Berkshire's concerns while also noting that some commenters supported the Connected Entity proposal. After consideration of all of the comments, the Commission transferred the record to Docket No. AD19-17-000 “for possible consideration in the future as the Commission may deem appropriate.”  80 In doing so, the Commission acknowledged that it could explore the Connected Entity proposal in the future. Accordingly, we accept Joint Advocates' alternative request and place their instant comments in the record of Docket No. AD19-17-000 for consideration in the future as the Commission may deem appropriate.

46. In the final rule, the Commission revised the previous implementation schedule in the NOPR based on concerns regarding feasibility. The Commission explained that initially, after the final rule's issuance, documentation for the relational database will be posted to the Commission's website, including the extensible markup language document (XML), XML Schema Definition document (XSD), the Data Dictionary, and a test environment user guide as well as a basic relational database test environment. Additionally, the Commission stated that it intends to add to the new test environment features on a prioritized, scheduled basis until complete. The Commission stated that it would inform the public when releases will be made publicly available. 81

47. The Commission stated that, during the development and testing phase, it would encourage feedback from outside testers and that, to facilitate this feedback, Commission staff will conduct outreach with submitters and external software developers, making any necessary corrections to available requirements and/or documentation. 82 In addition, the Commission explained that, in spring 2020, a user guide and a list of frequently asked questions regarding the process for preparing and submitting information into the relational database will be available on its website. 83

48. The Commission also explained that, in fall 2020, submitters will be required to obtain FERC generated IDs (GID)  84 for any reportable entity  85 that does not have a CID or LEI, 86 as well as the Commission-issued “Asset Identification” (Asset ID) number  87 for any reportable generation asset without a Plant Code, Generator ID, and Unit Code information from the Energy Information Agency (EIA) Form EIA-860 database (collectively, EIA Code). 88 The Commission stated that more information on discovering or obtaining these IDs will be published on the Commission's website. 89

49. The Commission explained that, after all necessary IDs are acquired, submitters must then submit their baseline submissions into the relational database by close of business on February 1, 2021. 90

50. The Commission stated that, to the extent that the Commission finds that technical workshops would be helpful after publication of the final rule, it will provide for those workshops. 91 In addition, the Commission explained that, if necessary, requests for an extension to the initial submission deadlines may be submitted similar to the way in which a current request for extension of time would be submitted to the Commission for consideration. 92

51. The Commission determined that it would post the Data Dictionary and supporting documentation to the Commission's website. 93 The Commission also concluded that there was no need for additional notice and opportunity for comment on the Data Dictionary, but the Commission noted that Sellers may reach out to Commission staff for further information. 94

52. EEI requests clarification regarding several implementation issues. 95 First, EEI argues that the implementation timeline should be extended to reflect the scope of the data required to be submitted and implementation challenges. EEI suggests that the Commission has adopted an unreasonably short timeline for implementing the final rule, considering the numerous questions as to implementation. 96 EEI argues that unexpected delays could impact compliance with the final rule and that, while the Commission has posted information regarding the XML, XSD, and Data Dictionary, it should also provide clarity as to when the other tools mentioned in the final rule will be available to users if such information is known. 97

53. According to EEI, the scope and breadth of the data gathering effort will be extensive in most cases because the data to be gathered is nuanced and requires judgment to determine whether the data falls within the final rule's scope. EEI notes that the Commission now requests data on: (1) The contents of market-based rate tariffs and certain power purchase agreements (PPAs); (2) IDs associated with counterparties to those PPAs; (3) dates related to the various elements of the market-based rate tariffs and PPAs; (4) certain generation; and (5) certain affiliates. EEI points out that the breadth of this data is greater than what is collected today for asset appendices and that it may be difficult to identify who may hold this information, given that ultimate upstream owners often restrict the flow of data among affiliates. 98

54. In addition, EEI explains that one of the first tasks of each Seller will be to determine for which generating assets it lacks EIA Codes and for which affiliates and counterparties, if any, it lacks a CID or LEI. EEI points out that in both cases the Commission must first generate data. EEI explains that requests for GIDs and Asset IDs are to be submitted in Fall 2020 and that given the compliance deadline and the fact that the Commission must first compile requests, this date occurs too late in the process to meet the Commission's current implementation date. EEI also submits that the Commission first must post a CID list that is kept up-to-date so Sellers can know whether to request an GID. 99 EEI posits, however, that the Commission must recognize that it will take time for Sellers to determine the set of PPAs that require GIDs because no list of PPAs under which the Seller is a long-term Seller likely exists and, if a Seller's Electric Quarterly Report (EQR) contains such a list, it must be sorted by long-term sales of energy or capacity. EEI provides that only then can the CID list be checked to determine the need for an GID. 100

55. EEI maintains that another issue that will affect the implementation timeframe is the need for internal compliance personnel and compliance programs to determine ongoing compliance. EEI suggests that such personnel will be spread over many departments and training will be required to establish reporting obligations and on the use of data collection software if data entry is not centralized. 101

56. EEI contends that the data entry task will be substantial for some reporting entities and should be considered in estimating compliance time. 102 EEI suggests that, because the data entry and data gathering tasks are potential sources of human error, some level of review may be necessary post-data collection to ensure that obvious errors or omissions have not occurred.

57. EEI next contends that technical conferences are needed to refine the Data Dictionary and clarify the data that must be collected. For example, EEI references the Commission's guidance in the final rule regarding reporting the number of megawatts associated with full and partial requirements sales agreements, i.e., “[f]or a full requirements contract, the amount should equal the buyer's most recent historical annual peak load” and “for a partial requirements contract, the amount should equal the portion of the buyer's requirements served by the seller multiplied by the buyer's annual peak load.”  103 EEI argues that this guidance raises several questions, and entities will have difficulty knowing what data to gather and report. Each entity may interpret the data requirements differently without Commission clarification. 104

58. EEI also questions the need for many of the date fields in the Data Dictionary. For example, EEI argues that the need for a field on “relationship_start_date” in the “entities_to_entities” table is unclear. EEI contends that, unless the Commission explains the need for retroactive dates in this field, as well as in other fields such as the “cat_status_effective_date” field in the category status table, it should allow the Sellers to use the date of the baseline filing and not seek historical dates. EEI asserts that if the Commission does not accept this alternative, it should allow discussion during the technical conference on how this burden can be reduced. In addition, EEI states that both outside vendors and in-house personnel will build data collection software for the final rule. EEI argues however that the Data Dictionary in and of itself does not allow software developers to understand what is needed in the software. EEI references several tables, including “mbr_authorization,” “mbr_category_status,” and “entities_to_genassets,” which could each be populated in different ways. EEI thus maintains that, for the software to have the functionality needed to meet the Commission's needs, Commission staff and Sellers must explain to software developers how each table in the Data Dictionary will work.

59. Similarly, EEI suggests that software developers will need time to understand how each table may be used by a variety of customers before they can begin coding. EEI maintains that, because Sellers will require new data collection software to convert the collected data into an XML format, technical conferences will be useful for providing feedback about how long this process will take. EEI suggests that developing new software can take between six months to more than a year and that the relational database is more complicated than past Commission endeavors because some entities will not have a vendor in place. EEI submits that most Sellers will need time to contract to develop software, the process of which will likely take several months. 105

60. EEI further provides comments on specific fields, such as the “PPA Agreement ID” field in the PPA table. EEI requests that the Commission verify that the identifier for each PPA should be the one used in EQR Field 20 only if the Seller is making a sale and that, where the Seller is purchasing long-term, it does not need to check to see: (1) If the Seller files EQRs; and (2) review the EQR of that Seller and find its identifier in its Field 20. 106 In regards to operating reserves, EEI requests that the Commission clarify that it is only seeking information as to Sellers who receive a Seller-specific order as to permit sales of operating reserves in a non-ISO/RTO balancing authority area in which it would otherwise be prohibited from selling under the model tariff wording. 107

61. Lastly, EEI seeks clarification that Commission staff can make changes to the Data Dictionary fields as appropriate to reflect the outcome of the technical conference. 108

62. We grant EEI's request for clarification in part and deny it in part. First, we deny EEI's request to extend the implementation timeline and disagree with EEI's assessment that the scope and breadth of the data gathering effort will be extensive. As noted in the final rule, Sellers already collect most of the information required to be submitted under the final rule, either as part of the narratives in their market-based rate filings, asset appendices, EQRs, or as part of their market-based rate tariffs. 109 For example, Sellers should already have available a list of long-term PPAs in which they are the seller because such sales are reported in EQRs. The final rule merely alters the manner in which Sellers will provide this data to the Commission. Additionally, the current implementation timeline provides Sellers with over 18 months to gather any new data that they may be required to submit into the database. 110 We find this to be enough time to gather any necessary information.

63. In response to EEI's concerns that Sellers and vendors will not have enough time to become familiar with the submission process, we note that on January 10, 2020, the Commission provided, on its website, 111 updated versions of the Data Dictionary, XML, XSD, and a frequently asked questions document, as well as provided access to a test environment for the relational database. 112 We expect that these items should provide Sellers, vendors, and other interested parties with a reasonable level of clarity on what Sellers will be required to submit and aid in the creation of tools to make those submissions. In regard to EEI's concerns that Sellers may not have enough time to determine for which affiliates or counterparties it needs to obtain a GID and which generating assets need Asset IDs, we note that the test environment (and the future portal for the relational database) should address these concerns. Sellers will find within the test environment tools to search for existing CIDs, LEIs, and GIDs, as well as the mechanism to create GIDs and Asset IDs. 113 Further, because the EIA Codes will be pulled from EIA, Sellers may also review the most recent EIA-860 table to discover whether they need to create an Asset ID for any generation asset. 114 Sellers will also be able to make test submissions into the relational database, which will help them to become familiar with the submission requirements of the database and how to format the data required. 115

64. We anticipate that these items, along with the technical workshop, will provide interested parties with sufficient information and tools to be able to make their submissions. While we appreciate EEI's argument that unexpected delays could impact compliance with the final rule, to date, no such delays have occurred. Nevertheless, if unexpected delays do occur, Sellers may seek an extension of time to make their baseline submissions. Further, to the extent that EEI remains concerned about human error, we reiterate that the Commission's usual practice is simply to require a corrected submittal be made without any sanctions. 116

65. Next, we grant EEI's request that the Commission hold a technical workshop, and we note that Commission staff will be hosting a technical workshop on February 27, 2020. 117 We expect that many of EEI's concerns with the Data Dictionary and the data that must be collected will be addressed at the technical workshop. Nevertheless, we take this opportunity to provide some clarifications.

66. We will allow the use of a January 1, 1960 default date for certain date fields, for dates that occur before the October 1, 2020 effective date of the final rule, when populating the database. 118 For example, Sellers may input January 1, 1960 for date fields such as “relationship_start_date” in the “entities_to_entities” table if the relationship between the entities began before October 1, 2020 and the seller does not know the actual start date. 119

67. We also verify that the “ppa_agreement_id” field in the “entities_to_ppas” table will be nullable and Sellers should only populate this field with the ID number in EQR Field 20 when they are reporting their own long-term sales. Stated another way, we do not expect Sellers to review the EQRs of their counterparties when preparing their submissions into the relational database.

68. Regarding operating reserves, we clarify that we are not seeking information on operating reserve authority provided for in standard market-based rate tariff provisions. The Commission is only seeking information on Sellers who have received a seller-specific authority to make sales of operating reserves at market-based rates. 120 Further, for specific questions about the Data Dictionary or other implementation issues, Sellers and other interested parties may contact Commission staff at MBRdatabase@ferc.gov.

69. In Order No. 860, the Commission clarified that certain aspects of a Seller's market-based rate filing can appear in eLibrary as either public or non-public. The Commission noted that a Seller, like anyone else submitting information to the Commission, may request privileged treatment of its filing if it contains information that is claimed to be exempt from the Freedom of Information Act's mandatory disclosure requirements. 121 The Commission stated that it did not expect that the information required to be submitted into the relational database will qualify for privileged treatment and consequently declined to incorporate confidentiality safeguards in the relational database. 122

70. TAPS requests that the Commission clarify that the public has a right to access the relational database. 123 According to TAPS, in the final rule, the Commission repeatedly explains that its expectation is that the public will have access to the relational database. 124 TAPS argues, however, that neither the final rule nor the amended regulatory text directly states that the public will have the right to access, search, and use information contained in the relational database. TAPS requests that the Commission expressly clarify that the public will have the right to do so. 125

71. TAPS points out that full access to the relational database and its functions is critical because the relational database will be one of the only remaining sources of information about the potential for anticompetitive market power. TAPS explains that this is because the final rule eliminated the requirement to submit organizational charts and for each Seller to report the assets of its affiliates with market-based rate authority. TAPS adds that the Commission also eliminated, in a separate rulemaking, the requirement that Sellers in certain RTO/ISO markets submit indicative screens for assessing horizontal market power. 126

72. TAPS explains that the final rule also implies that the public will have broad access rights through the relational database's services function. However, TAPS argues that the final rule does not define services function or specify that the public will have access to all of the relational database's functions. TAPS thus requests that the Commission clarify that the public's right to access the relational database includes the ability to use all the functions available to the Commission. 127

73. In addition, TAPS requests that the Commission clarify that the public will have access to the following: (1) The relational database function that generates organizational charts; (2) the same historical data as filers ( i.e., Sellers); and (3) the full set of market-based rate information, either through eLibrary or otherwise, including information Sellers submit into the database. TAPS also asks that the Commission clarify that all of the historical data preserved will be publicly available. 128

74. As TAPS requests, we clarify that the public will be able to access the relational database. In this regard, we clarify that we will make available services through which the public will be able to access organizational charts, asset appendices, and other reports, as well as have access to the same historical data as Sellers, including all market-based rate information submitted into the database. We also clarify that the database will retain information submitted by Sellers and that historical data can be accessed by the public.

75. With respect to the due diligence standard in § 35.41(b), the Commission stated that it generally will not seek to impose sanctions for inadvertent errors, misstatements, or omissions in the data submission process. The Commission stated its expectation that Sellers will apply due diligence to the retrieval and reporting of the required information by establishing reasonable practices and procedures to help ensure the accuracy of their filings and submissions, which should minimize the occurrence of any such inadvertent errors, misstatements, or omissions. However, the Commission explained that the intentional or reckless submittal of incorrect or misleading information could result in the Commission imposing sanctions, including civil penalties. The Commission explained that these circumstances might include, for example, systemic or repeated failures to provide accurate information and a consistent failure to exercise due diligence to ensure the accuracy of the information submitted. 129

76. The Commission declined to adopt a “safe harbor” or a “presumption of good faith” or “good faith reliance on others defense,” nor did the Commission decide to limit enforcement actions to only where there is evidence demonstrating that an entity intentionally submitted inaccurate or misleading information to the Commission. 130

77. The Commission reiterated that a due diligence standard provides the Commission with sufficient latitude to consider all facts and circumstances related to the submission of inaccurate or misleading information (or omission of relevant information) in determining whether such submission is excusable and whether any additional remedy beyond correcting the submission is warranted. 131

78. The Commission explained that establishing adequate due diligence practices and procedures ultimately depends on the totality of facts and circumstances and can vary case to case, depending upon evidence presented and whether, for example, reliance on third parties or affiliates is justified under the specific circumstances. The Commission added that most Sellers have knowledge of their affiliates' generation portfolios because Sellers must include this information in their indicative screens, so to the extent that the auto-generated asset appendix is clearly incongruous with the screens, the Commission expects that the Seller will make note of the perceived error in the transmittal letter. 132

79. The Commission explained however that, if a Seller does not have accurate or complete knowledge of its affiliates' market-based rate information, in most cases it should be able to rely on the information provided by its affiliates unless there is some indication that the information the affiliate supplies is inaccurate or incomplete. 133 The Commission added that, although Sellers should not ignore obvious inaccuracies or omissions, relying on information from affiliates should be sufficient to satisfy the due diligence standard provided there is a reasonable basis to believe that such information obtained from affiliates or third parties is reliable, accurate, and complete. 134

80. TAPS requests rehearing as to whether the Commission erred by (1) failing to include safeguards during the relational database's initial implementation to ensure that the newly adopted relational database functions as intended and at least as well as the pre-Order No. 860 data collection regime, and (2) failing to adequately specify the Commission's expectations for satisfying the Commission's  135 due diligence requirements under the new reporting regime.

81. According to TAPS, Order No. 860 conceded the risk of reporting errors and the Commission erred in declining to continue existing reporting requirements or other safeguards during the initial implementation of the relational database. 136 TAPS contends that the Commission also erred in failing to specify what ongoing practices and procedures the Commission expects Sellers to implement to satisfy their due diligence obligations. 137

82. TAPS asserts that the essential component of the relational database is identifying common ultimate upstream affiliates among Sellers. 138 TAPS argues that the relational database will not work if Sellers fail to correctly identify their ultimate upstream affiliates and that, because of complex corporate organizational structures, the risk of such failures is significant, as the Commission acknowledged. TAPS maintains that the risk of error will increase over time as changes in ownership result in a new ultimate upstream affiliate. TAPS adds that other problems that could compromise the relational database are likely to emerge after the database is fully developed and implemented. 139

83. TAPS contends that the final rule's response and solution to the problem of misreporting are inadequate. TAPS states that the final rule claims that the CID, LEI, and/or GID assigned by the relational database to each ultimate upstream affiliate will reduce the likelihood that Sellers attempting to report the same ultimate upstream affiliate inadvertently report different entities. 140 TAPS argues however that the Commission conceded that this only remedies reporting errors where Sellers are attempting to report the same ultimate upstream affiliates, and that it does not address the concern that some Sellers will misidentify their ultimate upstream affiliates at the outset. 141 According to TAPS, the final rule claims that this error can be identified and addressed when a Seller views its auto-generated asset appendix. 142 However, TAPS argues that the auto-generated asset appendix may not help remedy this reporting error where there is no specific directive that Sellers perform an independent review of the asset appendix, retain the audit trail necessary to do so, or report errors for correction and/or correct such errors unless the errors are obvious. TAPS asserts that the final rule both fails to require such an audit trail and even allows Sellers to rely on other Sellers' information for accuracy. 143

84. TAPS argues that the Commission should implement two safeguards to address these concerns. First, TAPS requests that, for purposes of accuracy, the Commission require that baseline database submissions, if not all submissions during the first three years of the relational database, include the asset appendix generated without using the database. TAPS contends that this will enable the Commission and others to check that the initial implementation of the relational database does not omit relevant information that would have been collected and made available under the previous market-based rate reporting regime. 144

85. Second, TAPS requests that the Commission articulate its expectation for what practices Sellers should adopt after this initial three-year period to satisfy their due diligence obligations under § 35.41(b). Specifically, TAPS contends that the Commission specify that it expects Sellers' continued due diligence practices to include: (1) Creating appendices of affiliated generation assets developed without reliance on the relational database; (2) comparing the non-relational database asset appendices against the ones generated by the database; and (3) retention of those comparisons for a reasonable time (at least six years, or two triennial market power updates). TAPS maintains that these requirements will ensure Sellers are able to identify reporting errors, the Commission can check the accuracy of the database-generated asset appendixes, and the Commission can fulfill its statutory mandate to ensure just and reasonable rates during this transition. 145

86. We deny TAPS's request for rehearing requesting safeguards during the initial implementation of the relational database and requesting that there be specific expectations regarding due diligence obligations moving forward. We agree with TAPS that, for the relational database to work as intended, common ultimate upstream affiliates between Sellers must be correctly identified, and we expect Sellers to exercise due diligence as they make their initial submissions in the relational database. As stated in the final rule, the Commission acknowledged that there would be some risk of reporting errors where there are subtle changes in ownership percentages resulting in new ultimate upstream affiliates that may not be universally noticed and reported by all affiliated Sellers. 146 We also acknowledge that there will be reporting errors if, as TAPS suggests, Sellers misidentify their ultimate upstream affiliates at the outset. However, we believe these reporting errors will be minimal as the Commission's definition for ultimate upstream affiliate is clear. 147

87. As such, we affirm the Commission's due diligence findings in the final rule, and decline to impose the additional requirements that TAPS requests. The Commission explained that a due diligence standard provides the Commission with sufficient latitude to make case-by-case considerations and that due diligence practices and procedures ultimately depend on the totality of the facts and circumstances, including whether reliance on third-parties or affiliates for information is justified. 148 We emphasize that the Commission's regulations impose a duty of candor on all Sellers to provide actual and factual information and to not submit false or misleading information in communications, or omit material information, in any communication with the Commission. 149 To the extent that there are inaccuracies in auto-generated asset appendices, we expect that Sellers will note those perceived errors in their transmittal letters. We reiterate that, while we expect that most inadvertently erroneous or incomplete submissions will be promptly corrected by reporting entities without the imposition of any penalty, the Commission will continue to exercise its discretion based on the circumstances to determine whether sanctions are appropriate. 150

88. In addition, we find that TAPS's request for additional safeguards would both be burdensome and undermine the benefits of establishing the relational database. First, if the Commission required that all baseline database submissions and all submissions during the first three years of the relational database include asset appendices generated without the database, this would, in substance, continue the pre-final rule reporting regime except with additional filings. 151 Given that a purpose of the final rule is to reduce burden, this requirement would run counter to the one of the goals of the final rule and would result in a more burdensome system for Sellers; however, the Commission and the public would receive little, if any, added benefit.

89. Likewise, with respect to ongoing due diligence requirements, we decline to require that Sellers are expected to: (1) Create asset appendices without relying on the relational database; (2) compare those asset appendices to the ones generated by the database; and (3) retain those comparisons for at least six years. Although characterized as expectations, TAPS's request can be read as additional requirements that would be part of Sellers' responsibilities under § 35.41(b). As noted above, such requirements would run counter to the purpose of the final rule, specifically, the goal to reduce burden on Sellers. We reiterate, however, that Sellers have a duty to perform due diligence to ensure that the information that they provide to the Commission is accurate and complete, and we encourage Sellers to adopt due diligence practices, which could include those proposed by TAPS.

90. In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through FERC's Home Page ( http://www.ferc.gov ) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE, Room 2A, Washington DC 20426.

91. From FERC's Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

92. User assistance is available for eLibrary and the FERC's website during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at public.referenceroom@ferc.gov.

93. The order on rehearing and clarification is effective October 1, 2020.

By the Commission. Commissioner Glick is dissenting in part with a separate statement attached.

1. I dissent in part from today's order, because I believe that the Commission should have finalized a critical aspect of the notice of proposed rulemaking  1 (NOPR) that would have required Sellers  2 and entities that trade virtual products or that hold financial transmission rights (Virtual/FTR Participants)  3 to report information regarding their legal and financial connections to various other entities (Connected Entity Information). Frankly, many aspects of this Connected Entity Information proposal should have been a no-brainer for this Commission. For example, the NOPR would have required Virtual/FTR Participants to be truthful in all communications with the Commission—not exactly a burdensome obligation. Nevertheless, the Commission has relegated even those common-sense reforms to a hollow administrative docket that has not seen any action and likely never will under the Commission's current construct. As I explained in my earlier dissent, the Commission's retreat from the NOPR proposal is part of a troubling pattern in which the majority seems indifferent to detecting and deterring market manipulation.

Two of the four review boards within the Department of Labor were created by voluntary delegations of authority by previous Secretaries of Labor. Specifically, the Administrative Review Board (ARB)—which has authority to hear appeals from the decisions of the Department's Office of Administrative Law Judges (OALJ) about certain immigration, child labor, employment discrimination, federal construction/service contracts, and other issues—and the Board of Alien Labor Certification Appeals (BALCA)—which has authority over appeals from the decisions of the Employment and Training Administration's adjudication of foreign labor certification applications—were created, respectively, by a Secretary's Order and by regulation. Their existence is neither compelled nor governed by statute. Notably, before the ARB was created in 1996, many of the types of cases now subject to its jurisdiction were decided directly by the Secretary. Each board was also entrusted with the power to issue final agency decisions in the name of the Secretary. Currently, the Secretary's Order and regulations establishing the ARB and BALCA provide no mechanism by which the Secretary can review, where necessary, the decisions of the officers who exercise power on his behalf.

To ensure that the Secretary has the ability to properly supervise and direct the actions of the Department, the Department proposes to establish systems of discretionary secretarial review over the decisions of the ARB and decisions of and appeals before BALCA, which will be accomplished through the proposed rule contained herein and the simultaneous issuance of a Secretary's Order governing the ARB. The Department's authority to effect these reforms derives from 5 U.S.C. 301, which authorizes the heads of agencies to regulate the internal operations of their departments, 5 U.S.C. 305, which provides for continuing review of agency operations, and the Secretary's authority to administer the statutes and programs at issue in ARB and BALCA proceedings. In combination, these statutes establish many of the powers of the Department within the Office of the Secretary, and give the Secretary wide latitude to delegate those powers to his subordinates on the terms he deems appropriate. Thus, the Secretary has the power to delegate his authority to appropriately supervise the adjudicatory process within the Department, and is now exercising that same authority to assert his decision-making prerogatives duly assigned to him by Congress by modifying the terms on which the members of the ARB and BALCA exercise his delegated authority.

The reforms to BALCA (and conforming edits to various Departmental regulations governing the ARB, BALCA, and the OALJ) preserve the existing structures by which the Department processes adjudications while giving the Secretary the option, in his sole discretion, to initiate review directly in a case where the Secretary's involvement is necessary and appropriate. Again, Congress has assigned the administration of various statutes to the Secretary of Labor, meaning that the Secretary is obligated to ensure that those laws are administered, executed, interpreted, and enforced according to law and Executive Branch priorities and policies. Under these reforms, the Secretary will rely on the ARB and BALCA to assist in identifying cases where secretarial review may be warranted. Consistent with the practice of other agencies, the Department does not anticipate that the power of secretarial review will be used often. The Department similarly anticipates that secretarial review—while completely within the Secretary's discretion as the officer assigned to administer the laws in the first place—will typically be reserved for matters of significant importance. Finally, the Department will ensure that the secretarial review process will be accomplished in a manner that complies with any applicable legal requirements.

Because of significant differences between how the ARB and BALCA operate, the proposed systems of review for each board are designed somewhat differently. Most importantly, whereas with respect to the ARB the Secretary will not exercise review over cases until after a decision has been rendered, the proposed regulations modifying BALCA's authority would allow the Secretary to assume jurisdiction over most cases even before a decision has been issued. This is because BALCA processes significantly more cases each year than does the ARB, and, due to the nature of the temporary visa programs and DOL's role in administering these programs, does so much more quickly than does the ARB. As a result, under the BALCA regulations, the Secretary will be able to initiate review of a case even before BALCA has issued a decision.

The Department appreciates the expeditious nature of many types of BALCA proceedings, such as those involving temporary labor certification, and does not anticipate that the new system of secretarial review established over such cases will significantly disrupt or otherwise impede the way such cases are currently processed. As noted above, the Department expects that secretarial review over BALCA decisions will, as with agency head review at other departments, likely not be exercised often. Further, the proposed changes to 29 CFR 18.95 provide that a BALCA decision is the Secretary's final administrative decision unless the Secretary assumes jurisdiction over the case. For example, once the BALCA issues a decision that grants a labor certification or remands for further processing, the private party in the case will be able to proceed immediately to the next step of the application process, and will only be delayed in doing so if the Secretary later decides to undertake review. Moreover, the revised 29 CFR 18.95 limits any potential uncertainty that may exist because of the possibility of secretarial review by placing strict time limits on when the Secretary will have the option of assuming jurisdiction over a case.

The Department will consider comment on issues related to this action. If the Department receives no significant adverse comment, the Department will publish a Federal Register document confirming the effective date of the DFR and withdrawing the companion Notice of Proposed Rulemaking (NPRM). Such confirmation may include minor stylistic or technical changes to the DFR. For the purpose of judicial review, the Department views the date of confirmation of the effective date of the DFR as the date of promulgation.

In direct final rulemaking, an agency publishes a DFR in the Federal Register , with a statement that the rule will go into effect unless the agency receives significant adverse comment within a specified period. The agency may publish an identical concurrent NPRM. If the agency receives no significant adverse comment in response to the DFR, the rule goes into effect. The Department plans to confirm the effective date of a DFR through a separate Federal Register document. If the agency receives a significant adverse comment, the agency will withdraw the DFR and treats such comment as a response to the NPRM. An agency typically uses direct final rulemaking when an agency anticipates that a rule will not be controversial.

For purposes of this rulemaking, a significant adverse comment is one that explains: (1) Why the rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) Why the direct final rule will be ineffective or unacceptable without a change.

In addition to publishing this DFR, the Department is publishing an NPRM in the Federal Register . The comment period for the NPRM runs concurrently with that of the DFR. The Department will treat comments received on the companion NPRM as comments also regarding the DFR. Similarly, the Department will consider comments submitted to the DFR as comment to the companion NPRM. Therefore, if the Department receives a significant adverse comment on either this DFR or the NPRM, it will withdraw this DFR and proceed with the companion NPRM. In the event the Department withdraws the DFR because of significant adverse comment, the Department will consider all timely comments received in response to the DFR when it continues with the NPRM. After carefully considering all comments to the DFR and the NPRM, the Department will decide whether to publish a new final rule.

The Department has determined that this rule is suitable for direct final rulemaking. The proposed revisions to the Department's internal adjudicatory processes would establish a mechanism by which the Secretary can review cases pending before or decided by BALCA, and make other conforming amendments to Departmental regulations to align with this new system of discretionary review as well as the similar system of discretionary review established in Secretary's Order 01-2020 over decisions of the ARB. These are rules of agency management and personnel and are entirely procedural changes to how officers within the Department of Labor exercise delegated authority on behalf of the Secretary; therefore, the Department is not required to engage in a notice and comment process to issue them. See 5 U.S.C. 553(a)(2), (b)(A). Indeed, the vast majority of the proposed changes are merely technical amendments to rules governing the manner in which the ARB issues decisions that are designed to eliminate any potential for confusion or ambiguity in light of the issuance of Secretary's Order 01-2020. Further, discretionary review by an agency head over adjudicatory decisions exists in many other executive branch agencies, including at the Department of Justice, the Department of the Interior, and the Department of Education. The proposed rules are therefore consistent with well-known and well-established models of internal agency review. In consequence, the proposed changes to the Department's internal adjudicatory processes should not be controversial.

The Department proposes to revise several sections of the Code of Federal Regulations including 20 CFR parts 641, 655, 656, 658, 667, 683, and 702; 29 CFR parts 2, 7, 8, 10, 13, 18, 24, 29, 38, and 96; 29 CFR part 471; 29 CFR parts 501 and 580; 29 CFR parts 1978-1988; and 41 CFR parts 50-203 and 60-30 to harmonize the manner in which the ARB issues decisions on behalf of the Secretary under the Department's regulations with the scope of the final decision-making authority delegated to the ARB by the Secretary in Secretary's Order 01-2020. Specifically, references to final decisions of the ARB have been modified or removed to ensure that no regulation contradicts the terms on which an ARB decision becomes final under the Secretary's Order. Certain provisions governing the timing of petitions for review to the ARB and when the ARB is required to issue decisions have also been amended to eliminate potential ambiguity or confusion over the distinction between when the ARB is required to issue a decision and when such decision becomes the final action of the Department pursuant to the Secretary's Order.

The Department also proposes to revise 29 CFR part 18 by modifying the conditions under which a decision of BALCA becomes the final decision of the Department and by creating a process by which the Secretary of Labor can exercise discretionary review over cases pending before or decided by the BALCA. Technical amendments are also proposed to 20 CFR parts 655 and 656 to harmonize the manner in which BALCA issues decisions on behalf of the Secretary with the new system of discretionary review established in 29 CFR part 18.

The Department of Labor and the Department of Homeland Security (DHS) have determined that it is appropriate to issue a separate rule regarding the Secretary of Labor's review authority over H-2B cases under 29 CFR 18.95 to address the same issues addressed by this rule in the H-2B context. It is the Departments' intent to promulgate this separate rule after the publication of this rule. This determination follows conflicting court decisions concerning DOL's authority to issue legislative rules on its own to carry out its duties in the H-2B program. Although DOL and DHS each have authority to issue rules implementing their respective duties in the H-2B program, the Departments plan to make the amendments to the applicable regulations jointly to ensure that there can be no question about the authority underlying such technical amendments. This approach is consistent with the joint rulemaking governing the Temporary Non-Agricultural Employment of H-2B Aliens in the United States, 80 FR 24042 (Apr. 29, 2015) (codified at 8 CFR part 214, 20 CFR part 655, and 29 CFR part 503).

In order to ensure that all parties appearing before the ARB and BALCA have fair notice of the new systems of discretionary review established in this rulemaking and in Secretary's Order 01-2020, the Secretary will not exercise his review authority over any decision of either Board issued before the passage of 30 calendar days from the date on which the rule becomes effective.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

This proposed rule has been drafted and reviewed in accordance with Executive Order 12866. The Department of Labor, in coordination with the Office of Management and Budget (OMB), determined that this proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866 because the rule will not have an annual effect on the economy of $100 million or more; will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; and will not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof. Furthermore, the rule does not raise a novel legal or policy issue arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Accordingly, OMB has waived review.

Because no notice of proposed rulemaking is required for this rule under section 553 of the Administrative Procedure Act, the regulatory flexibility analysis requirements of the Regulatory Flexibility Act, 5 U.S.C. 603, 604, do not apply to this rule. See 5 U.S.C. 601(2).

The Department has determined that this proposed rule is not subject to the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., as this rulemaking does not involve any collections of information. See 5 CFR 1320.3(c).

The Department has reviewed this proposed rule in accordance with the requirements of Executive Order 13132 and the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq., and has found no potential or substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. As there is no Federal mandate contained herein that could result in increased expenditures by State, local, and tribal governments, or by the private sector, the Department has not prepared a budgetary impact statement.

The Department has reviewed this proposed rule in accordance with Executive Order 13175 and has determined that it does not have “tribal implications.” The proposed rule does not “have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

For the reasons set forth in the preamble, the Department of Labor amends 20 CFR chapters V and VI, 29 CFR subtitle A and chapters IV, V, and XVII, and 41 CFR parts 50-203 and 60-30 as follows:

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act) (Pub. L. 114-74, Sec. 701), which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410), requires agencies to make annual adjustments to civil monetary penalty (CMP) amounts for inflation “notwithstanding section 553 of title 5, United States Code.” Section 553 refers to the Administrative Procedure Act, which provides for advance notice and public comment on rules. However, as explained in Section III below, HUD has determined that advance notice and public comment on this final rule is unnecessary. This annual adjustment is for 2020.

The annual adjustment is based on the percent change between the U.S. Department of Labor's Consumer Price Index for All Urban Consumers (“CPI-U”) for the month of October preceding the date of the adjustment, and the CPI-U for October of the prior year (28 U.S.C. 2461 note, section (5)(b)(1)). Based on that formula, the cost-of-living adjustment multiplier for 2019 is 1.01764. 1 Pursuant to the 2015 Act, adjustments are rounded to the nearest dollar. 2

This rule makes the required 2020 inflation adjustment of civil penalty amounts. Since HUD is not applying these adjustments retroactively, the 2020 increases apply to violations occurring on or after this rule's effective date. HUD provides a table showing how, for each component, the penalties are being adjusted for 2020 pursuant to the 2015 Act. In the first column (“Description”), HUD provides a description of the penalty. In the second column (“Statutory Citation”), HUD provides the United States Code statutory citation providing for the penalty. In the third column (“Regulatory Citation”), HUD provides the Code of Federal Regulations citation under title 24 for the penalty. In the fourth column (“Previous Amount”), HUD provides the amount of the penalty pursuant to the rule implementing the 2019 adjustment (84 FR 9451, March 15, 2019). In the fifth column (“2020 Adjusted Amount”), HUD lists the penalty after applying the 2020 inflation adjustment.

HUD generally publishes regulations for public comment before issuing a rule for effect, in accordance with its own regulations on rulemaking in 24 CFR part 10. However, part 10 provides for exceptions to the general rule if the agency finds good cause to omit advanced notice and public participation. The good cause requirement is satisfied when prior public procedure is “impractical, unnecessary, or contrary to the public interest” (see 24 CFR 10.1). As discussed, this final rule makes the required 2020 inflation adjustment, which HUD does not have discretion to change. Moreover, the 2015 Act specifies that a delay in the effective date under the Administrative Procedure Act is not required for annual adjustments under the 2015 Act. HUD has determined, therefore, that it is unnecessary to delay the effectiveness of the 2020 inflation adjustments to solicit public comments.

Section 7(o) of the Department of Housing and Urban Development Act (42 U.S.C. 3535(o)) requires that any HUD regulation implementing any provision of the Department of Housing and Urban Development Reform Act of 1989 that authorizes the imposition of a civil money penalty may not become effective until after the expiration of a public comment period of not less than 60 days. This rule does not authorize the imposition of a civil money penalty—rather, it makes a standard inflation adjustment to penalties that were previously authorized. As noted above, the 2020 inflation adjustments are made in accordance with a statutorily prescribed formula that does not provide for agency discretion. Accordingly, a delay in the effectiveness of the 2020 inflation adjustments in order to provide the public with an opportunity to comment is unnecessary because the 2015 Act exempts the adjustments from the need for delay, the rule does not authorize the imposition of a civil money penalty, and, in any event, HUD would not have the discretion to make changes as a result of any comments.

Under Executive Order 12866 (Regulatory Planning and Review) (58 FR 51735), a determination must be made whether a regulatory action is significant and, therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. Executive Order 13563 (Improving Regulations and Regulatory Review) (76 FR 3821) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs) (82 FR 9339) requires that for every new regulation issued, at least two prior regulations be identified for removal, and that the cost of planned regulations be prudently managed and controlled through a budgeting process. As discussed above in this preamble, this final rule adjusts existing civil monetary penalties for inflation by a statutorily required amount.

HUD determined that this rule was not significant under Executive Order 12866 and Executive Order 13563. Moreover, as this rule is not a significant regulatory action under Executive Order 12866, it is not considered an Executive Order 13771 regulatory action.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Because HUD has determined that good cause exists to issue this rule without prior public comment, this rule is not subject to the requirement to publish an initial or final regulatory flexibility analysis under the RFA as part of such action.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)  3 requires that an agency prepare a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of UMRA also requires an agency to identity and consider a reasonable number of regulatory alternatives before promulgating a rule. 4 However, the UMRA applies only to rules for which an agency publishes a general notice of proposed rulemaking. As discussed above, HUD has determined, for good cause, that prior notice and public comment is not required on this rule and, therefore, the UMRA does not apply to this final rule.

Executive Order 13132 (entitled “Federalism”) (64 FR 43255) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on State and local governments and is not required by statute, or the rule preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. This rule will not have federalism implications and would not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive order.

This final rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern, or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this final rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).

Accordingly, for the reasons described in the preamble, HUD amends 24 CFR parts 28, 30, 87, 180, and 3282 as follows:

The final regulations (TD 9890) that are the subject of this correction are issued under section 1441of the Internal Revenue Code.

As published, January 2, 2020 (85 FR 192), the final regulations (TD 9890) contain an error that needs to be corrected.

Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments:

The Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101-410, 104 Stat. 890 (28 U.S.C. 2461, note), as amended by the Debt Collection Improvement Act of 1996, Public Law 104-134, April 26, 1996, and further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act), Public Law 114-74, November 2, 2015, required agencies to annually adjust the level of CMPs for inflation to improve their effectiveness and maintain their deterrent effect. The 2015 Act required that not later than July 1, 2016, and not later than January 15 of every year thereafter, the head of each agency must adjust each CMP within its jurisdiction by the inflation adjustment described in the 2015 Act. The inflation adjustment is determined by increasing the maximum CMP or the range of minimum and maximum CMPs, as applicable, for each CMP by the cost-of-living adjustment, rounded to the nearest multiple of $1. The cost-of-living adjustment is the percentage (if any) for each CMP by which the Consumer Price Index (CPI) for the month of October preceding the date of the adjustment, exceeds the CPI for the month of October in the previous calendar year.

The initial catch up adjustments for inflation to the Department of Defense's CMPs were published as an interim final rule in the Federal Register on May 26, 2016 (81 FR 33389-33391) and became effective on that date. The interim final rule was published as a final rule without change on September 12, 2016 (81 FR 62629-62631), effective that date. The revised methodology for agencies for 2020 and each year thereafter provides for the improvement of the effectiveness of CMPs and to maintain their deterrent effect. The Department of Defense is adjusting the level of all civil monetary penalties under its jurisdiction by the Office of Management and Budget (OMB) directed cost-of-living adjustment multiplier for 2020 of 1.01764 prescribed in OMB Memorandum M-20-05, “Implementation of Penalty Inflation Adjustments for 2020, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015,” dated December 16, 2019. The Department of Defense's 2020 adjustments for inflation to CMPs apply only to those CMPs, including those whose associated violation predated such adjustment, which are assessed by the Department of Defense after the effective date of the new CMP level.

Pursuant to 5 U.S.C. 553(b)B, there is good cause to issue this rule without prior public notice or opportunity for public comment because it would be impracticable and unnecessary. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Section 701(b)) requires agencies, effective 2017, to make annual adjustments for inflation to CMPs notwithstanding section 553 of title 5, United States Code. Additionally, the methodology used, effective 2017, for adjusting CMPs for inflation is established in statute, with no discretion provided to agencies regarding the substance of the adjustments for inflation to CMPs. The Department of Defense is charged only with performing ministerial computations to determine the dollar amount of adjustments for inflation to CMPs.

Further, there are no significant costs associated with the regulatory revisions that would impose any mandates on the Department of Defense, Federal, State or local governments, or the private sector. Accordingly, prior public notice and an opportunity for public comment are not required for this rule. The benefit of this rule is the Department of Defense anticipates that civil monetary penalty collections may increase in the future due to new penalty authorities and other changes in this rule. However, it is difficult to accurately predict the extent of any increase, if any, due to a variety of factors, such as budget and staff resources, the number and quality of civil penalty referrals or leads, and the length of time needed to investigate and resolve a case.

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 rule is not a “significant regulatory action,” and was not reviewed by the Office of Management and Budget.

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

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532) requires agencies to assess anticipated costs and benefits before issuing any rule the mandates of which require spending in any year of $100 million in 1995 dollars, updated annually for inflation. In 2016, that threshold is approximately $146 million. This rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.

Because notice of proposed rulemaking and opportunity for comment are not required pursuant to 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601, et seq. ) are inapplicable. Therefore, a regulatory flexibility analysis is not required and has not been prepared.

The Department of Defense determined that provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this rule because there are no new or revised recordkeeping or reporting requirements.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This final rule will not have a substantial effect on State and local governments.

Accordingly, 32 CFR part 269 is amended as follows.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for issuing this temporary final rule because it continues to be necessary to safeguard incoming, moored, and outgoing LNG carriers within San Juan Harbor, San Juan, Puerto Rico. This rule extends the duration of the existing temporary safety zone on navigable waters within one half mile around each Liquefied Gas carrier entering and departing San Juan Harbor and a 50-yard radius around each vessel when moored. This extension is necessary while we complete the rulemaking process for the associated NPRM, 1 which proposes to permanently revise the existing regulation in § 165.754 to add LNG carriers is ongoing. The first temporary rule was effective from September 13, 2019 until 11:59 p.m. on November 15, 2019. The second temporary rule extended the duration of the safety zone and is set to expire at 11:59 p.m. on February 28, 2020. This action extends the duration of the safety zone until 11:59 p.m. on April 30, 2020. This action allows for time to complete the rulemaking process for the associated NPRM. Therefore, it is impracticable and contrary to the public interest for the existing temporary safety zone to lapse.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register for the same reasons discussed above.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. Potential hazards associated with LNG carriers continues to be a safety concern for anyone within 50-yards of these carriers. The purpose of this rule is to extend the current safety zone until April 30, 2020 to ensure the safety of vessels and the navigable waters within a 50-yard radius of LNG and LPG carriers transiting San Juan Harbor while the rulemaking process is completed for the NPRM, which proposes to revise the safety zone in § 165.754. This temporary final rule continues to safeguard vessels at an adjacent berthing location, Puerto Nuevo Berth B, which supplies LNG to the Puerto Rico Electric Power Authority (PREPA) and other industrial sectors.

A moving safety zone is established in the following areas: (1) The waters around Liquefied Gas carriers entering San Juan Harbor in an area one half mile around each vessel, beginning one mile north of the San Juan Harbor #1 Sea Buoy, in approximate position 18-29.3N, 66-07.6W and continuing until the vessel is moored at the Puma Energy dock, Cataño Oil dock, or Wharf B in approximate position 18-25.8N, 66-06.5W. (2) The waters around Liquefied Gas carriers in a 50-yard radius around each vessel when moored at the Puma Energy dock, Cataño Oil dock, or Wharf B. (3) The waters around Liquefied Gas carriers departing San Juan Harbor in an area one half mile around each vessel beginning at the Puma Energy Dock, Cataño Oil dock, or Wharf B in approximate position 18-25.8N, 66-06.5W when the vessel gets underway, and continuing until the stern passes the San Juan Harbor #1 Sea Buoy, in approximate position 18-28.3N, 66-07.6W.

No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. If authorization to enter, transit through, anchor in, or remain within the safety zone is granted by the COTP San Juan or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the COTP San Juan or a designated representative. The Coast Guard will provide notice of the safety zone through Local Notice to Mariners, Broadcast Notice to Mariners via VHF-FM marine channel 16, and designated on-scene representatives.

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

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

This regulatory action determination is based on the size, available exceptions to the enforcement of the safety zone, and notice to mariners. The regulated area will impact small designated areas of navigable channels within San Juan Harbor. The rule will allow vessels to seek permission to enter, transit through, anchor in, or remain within the safety zone. Additionally, notifications to the marine community will be made through Local Notice to Mariners, Broadcast Notice to Mariners via VHF-FM marine channel 16, and on-scene representatives. The notifications will allow the public to plan operations around the affected areas.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 36 days that will prohibit entry within one half mile around each Liquefied Gas carrier entering and departing San Juan Harbor and a 50-yard radius around each vessel when moored. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the separate rulemaking (84 FR 68860) to modify the San Juan Harbor, San Juan, Puerto Rico safety zone is properly proposed and implemented. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

In a document published in the Federal Register on June 25, 2019, VA published a proposed rule, which proposed to revise its regulations that govern VA's Health Professional Scholarship Program (HPSP). 84 FR 29824. VA provided a 60-day comment period, which ended on August 26, 2019. We received two comments on the proposed rule.

On June 6, 2018, section 301 of Public Law 115-182, the John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems and Strengthening Integrated Outside Networks Act of 2018, or the VA MISSION Act of 2018, amended title 38 of the United States Code (U.S.C.) 7612(b) and 7617, which govern the HPSP. This program is regulated under title 38 of the Code of Federal Regulations (CFR) 17.600 through 17.612. Section 7612(b) of 38 U.S.C. was amended to state that VA will ensure that not less than 50 HPSP scholarships are awarded each year to students who are accepted for enrollment or are enrolled in a program of education or training that leads to employment as a physician or dentist until such a date as VA determines that there is a staffing shortage of less than 500 individuals in these health care professions in VA. The VA MISSION Act of 2018 further amended section 7612(b) to state that after such a date, VA will award HPSP scholarships each year to not less than 10 percent of the total staffing shortage of physicians and dentists. Section 7612 was also amended by expanding the number of years of obligated service that a participant who pursues a course of study leading to employment as a physician or dentist would have to serve in VA in a discipline for which the HPSP was awarded. For those individuals who are accepted for enrollment or enrolled in a program of education or training leading to employment as a physician or dentist, instead of one year of obligated service for each school year or part thereof for which the participant was awarded a scholarship, the VA MISSION Act of 2018 requires that the participant serve 18 months of obligated service for each school year or part thereof for which the participant was awarded a scholarship. The VA MISSION Act of 2018 additionally amended 38 U.S.C. 7617 by adding that a participant has breached the service agreement if the participant fails to successfully complete post-graduate training leading to eligibility for board certification for employment as a physician. This final rulemaking implements the mandates of section 301 of the VA MISSION Act of 2018 by amending 38 CFR 17.603, 17.607, and 17.610.

One commenter was in favor of the rule and stated that making more scholarships available for students who are going to study in a field that is quite expensive is a great idea that will help society in the long run, especially fields leading to employment as a physician or dentist. However, the commenter recommended that the minimum scholarship number should always be 10 percent the number of vacancies so if there are 600 vacancies, VA should be required to give out 60 scholarships instead of capping at 50 so that more and more people can be helped. As previously stated in this rule, 38 U.S.C. 7612(b) states that not less than 50 HPSP scholarships are awarded each year to students who are accepted for enrollment or are enrolled in a program of education or training that leads to employment as a physician or dentist until such a date as VA determines that there is a staffing shortage of less than 500 individuals in these health care professions in VA. Therefore, for instances where there are 600 vacancies, as the commenter stated, there would not be a cap at 50 scholarships. Fifty scholarships would be the minimum amount of scholarships that may be offered to qualifying individuals. The commenter requested that the minimum number of scholarships offered by VA always be ten percent of the shortage of VA physicians and dentists. However, the statutory ten percent requirement only comes into effect when the number of vacancies is less than 500. When there are more than 500 vacancies for physicians and dentists, VA may offer not less than 50 HPSP scholarships per year. VA has the authority to provide more than 50 scholarships, but VA chooses to maintain the statutory limit in order to allow VA to utilize HPSP funds in disciplines other than physician and dentists as allowed under § 17.603(b)(2) for other healthcare disciplines experiencing severe staffing shortages. We are not making any changes based on this comment.

Another commenter was in support of the rule stating that they are pleased that VA is making the HPSP available to other health care professionals and encourages VA to place priority on the inclusion of nurse practitioners in this program. The commenter further stated that VA has long recognized the value of nurse practitioner-led care and it is important that these scholarship opportunities be available to nurse practitioners as well as other health care professionals to provide veterans with a robust health care workforce. The HPSP has always been available to applicants who pursue a course leading to nurse practitioner. Current § 17.603(b) states that VA will grant HPSP scholarships in a course of study in those disciplines or programs where recruitment is necessary for the improvement of health care of veterans. Those disciplines or programs are listed in 38 U.S.C. 7401(1) and (3), which includes nurse practitioners. However, the purpose of this rulemaking is to implement the mandates of the VA MISSION Act of 2018 by expanding the number of HPSP that may be awarded to individuals who pursue a program of education or training that leads to employment as a physician or dentist, not nurse practitioners. Therefore, we are not making any changes based on this comment.

Based on the rationale set forth in the Supplementary Information to the proposed rule and in this final rule, VA is adopting the proposed rule with no edits to the rule.

Although this action contains provisions constituting collections of information at 38 CFR 17.604, which is not being amended by this rule, under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised collections of information are associated with this final rule. The information collection requirements for § 17.604 are currently approved by the Office of Management and Budget (OMB) and have been assigned OMB control numbers 2900-0793.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The provisions associated with this rulemaking are not processed by any other entities outside of VA. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm by following the link for VA Regulations Published from FY 2004 through FYTD.

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

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule would have no such effect on State, local, and tribal governments, or on the private sector.

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).

There are no Catalog of Federal Domestic Assistance numbers and titles for this rule.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Pamela Powers, Chief of Staff, Department of Veterans Affairs, approved this document on January 24, 2020, for publication.

For the reasons set forth in the preamble, we are amending 38 CFR part 17 as follows:

Table of Contents I. Relevant Statutory Requirements II. Background III. Basis and Purpose of Final Rules IV. Changes to Final Rules I. Relevant Statutory Requirements

Section 407(c)(1) of title 39 of the United States Code requires that the Secretary of State, before concluding a treaty, convention, or amendment establishing a market dominant rate or classification, request the Commission's views on the consistency of such rate or classification with the modern rate-setting criteria of 39 U.S.C. 3622. Commission views entail the review and analysis of numerous proposals from the Universal Postal Union (UPU) or its member countries, which are typically posted on the UPU website pursuant to a series of deadlines that begin about 6 months before a Congress convenes.

In Docket No. RM2015-14, the Commission adopted rules formalizing its procedures related to Commission views submitted pursuant to 39 U.S.C. 407(c)(1). 1 The adopted rules reflected the Commission's commitment to both transparency and improved public accessibility by establishing dockets that informed the public about the availably of relevant proposals, Commission views, and other related documents, and by allowing all documents to be incorporated into one comprehensive record.

After years of experience in participating in both traditional UPU Congresses as well as two extraordinary Congresses, the Commission adopts clarifying changes to the rules in order to better reflect the Commission's procedures related to the posting of relevant proposals and Commission views. 2

Due to Commission action in another proceeding, the Commission notes several non-substantive changes to the rules as proposed in Order No. 5353. These changes do not affect the text of the rules themselves and largely relate to the numbering of the rules. In Order No. 5353, the Commission proposed rule revisions to 39 CFR part 3017 on December 17, 2019. See section I, supra; see also Order No. 5353. On January 16, 2020, the Commission issued a final rulemaking in a separate proceeding that, among other things, renumbered several parts in title 39. 3 In Order No. 5407, 39 CFR part 3017 was redesignated as 39 CFR part 3025. Id. at 24. In addition, the Commission redesignated §§ 3017.1 through 3017.5 as §§ 3025.101 through 3025.105 of the chapter and revised the part's heading to “Procedures Related to Commission Views Submitted to the Secretary of State.”  4 The revisions set forth in Order No. 5407 go into effect on April 20, 2020. Order No. 5407 at 21-22. In order to avoid any confusion that may be associated with these overlapping changes, the final rules adopted in this Order will go into effect on April 21, 2020, after the renumbering of parts in title 39 is complete. As such, the rule revisions herein reflect the numerical and heading changes adopted as part of Order No. 5407.

For the reasons stated in the preamble, the Commission amends chapter III of title 39 of the Code of Federal Regulations by revising part 3025 to read as follows:

On November 21, 2019 (84 FR 64244), EPA published a notice of proposed rulemaking (NPRM) for the District of Columbia. In the NPRM, EPA proposed approval of the District's SIP revision concerning the negative declaration for the 2016 Oil and Gas CTG. The formal SIP revision was submitted by the District on July 17, 2019. For additional information on the CTG please see the NPRM.

In its submittal, the District of Columbia's Department of Energy and Environment (DOEE) conducted a search of its sources to determine if the District has any sources that fall within the applicability of the 2016 Oil and Gas CTG. DOEE reviewed the following sources of information: DOEE's Air Quality Division's permitting database for potential sources subject to the 2016 Oil and Gas CTG, the Energy Information Administration's data regarding natural gas pipelines and areas of oil and gas development, the Department of Homeland Security's database of critical infrastructure which includes natural gas compressor stations, the District's Department of Consumer and Regulatory Affairs database which would include a basic business license for broad categories of businesses, and the District's point and area source inventory. Within each database or system reviewed, the District found no sources subject to the 2016 Oil and Gas CTG. After completing this search, the District has declared that no sources subject to the 2016 Oil and Gas CTG exist within the District.

EPA received five sets of anonymous comments in response to the NPRM, two of which were duplicative.

Comment 1: One commenter stated that approval of the District's negative declaration, “might set a dangerous precedent for the further regulation and control of the emissions of volatile organic compounds (VOCs),” and could cause, “a much larger issue for the future control of VOCs.”

Response 1: EPA understands the commenter's concern with regards to setting a precedent, however, EPA has historically allowed states to submit a negative declaration for a particular CTG category if the state finds that no sources exist in the state which would be subject to that CTG. EPA has addressed the idea of negative declarations numerous times and for various national ambient air quality standards (NAAQS) including in the General Preamble to the 1990 Amendments, 1 the 2006 RACT Q&A Memo, 2 and the 2008 Ozone Implementation Rule. 3 In each of these documents, EPA asserted that if no sources exist in the nonattainment area for a particular CTG category, the state would be allowed to submit a negative declaration SIP revision.

In addition, EPA has approved negative declarations in the past for this CTG category in other states as well as other CTG categories for the District. For example, EPA has approved negative declarations for the District for the following categories with respect to the 1997 ozone NAAQS: Automotive and Light-duty Truck Manufacturing; Storage of Petroleum Liquids in Fixed-roof Tanks; Bulk Gasoline Plants; Petroleum Refinery Sources; Graphic Arts Systems; Shipbuilding and Repair; Wood Furniture Coatings; and more. See 74 FR 28447 (June 16, 2009) and 74 FR 12778 (March 25, 2009). More recently EPA approved negative declarations for the 2008 ozone NAAQS for these same CTG categories. See 84 FR 54507 (October 10, 2019). With respect to the 2016 Oil and Gas CTG, EPA has already approved negative declarations for Delaware, Indiana, Vermont, and California's El Dorado County and Yolo-Solano Air Quality Management Districts. 4 Thus, no precedent is being set by approving the District's negative declaration with respect to the 2016 Oil and Gas CTG.

Comment 2: One commenter stated that economic effects should be considered, particularly whether the SIP revision will, “harm the economy to compensate for the environment and if the benefits of doing so exceed the harm it will cause.”

Response 2: EPA disagrees with this comment. In the case of a negative declaration, the state is merely certifying that no sources exist which would necessitate a regulation being developed for a CTG category. Because there are no sources in the District that could potentially be subject to the 2016 Oil and Gas CTG, the District does not have to develop and implement a regulation to meet the RACT requirements of the CTG, and thus, no costs will be imposed on sources in the District.

Comment 3: One commenter explained that ozone nonattainment areas classified as Moderate or higher must implement RACT for each category of VOC sources covered by a CTG document issued between November 15, 1990 and the date of attainment; the commenter suggested that EPA should update this date to reflect regulations made in current environmental conditions.

Response 3: The November 15, 1990 date is established by statute in CAA section 182(b)(2). EPA cannot through rulemaking change this date. Changing this date would require legislation passed by Congress and signed by the President into law.

Comment 4: One commenter suggested EPA should disapprove the District's SIP pending review by the “OSG Intergovernmental Panel on Climate Change (IPCC) and other available independent scientific assessments of risks and impacts.” The commenter claims that EPA is unable to predict accurately how these gases will alter the climate system over the next century. The commenter also suggested EPA disapprove the District's SIP because nothing in the negative declaration accounts for future development in the oil and natural gas field. The commenter claims that EPA must require a regulation to ensure future compliance with the CTG and not allow the District to increase emissions of VOCs or greenhouse gases (GHGs) like methane.

Response 4: First, with respect to disapproving the District's SIP pending external review, EPA disagrees with the commenter. Nothing in the District's negative declaration SIP revision requires external review with respect to climate change because the negative declaration is merely certifying that no sources in the District are subject to the 2016 Oil and Gas CTG. A review of climate change, or its impacts, are not relevant to the District's SIP revision.

Second, with respect to disapproving the District's SIP because the SIP revision does not account for future development and does not contain a regulation to ensure future compliance with the CTG or restrict emissions of VOCs and GHGs, EPA disagrees with the commenter. Nothing in the CAA or EPA's implementing rules or guidance suggests that states must have a SIP-approved regulation for a category of CTG sources that does not exist in the state. Should a new source of the type covered by the existing CTG be constructed in a state after approval of a negative declaration, EPA expects the state to develop a regulation and submit it to EPA for approval into the SIP in accordance with the relevant timing provided for by the CAA. At this time, because the District does not have any sources subject to the 2016 Oil and Gas CTG, no regulation is required to be developed and submitted to EPA for SIP approval.

EPA is approving the District's SIP revision concerning the negative declaration for the 2016 Oil and Gas CTG, which was submitted on July 17, 2019.

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

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 5, 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, approving the District's negative declaration for the 2016 Oil and Gas CTG, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

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

On December 4, 2019 (84 FR 66347), EPA proposed to approve the 1997 ozone NAAQS LMPs for the Benzie County, Flint, Grand Rapids, Huron County, Kalamazoo-Battle Creek, Lansing-East Lansing, and Mason County areas, submitted by Michigan on July 24, 2019. An explanation of the CAA requirements, a detailed analysis of the revisions, and EPA's reasons for proposing approval were provided in the notice of proposed rulemaking. EPA will not reiterate the reasons for approval in this rule. The public comment period ended on January 3, 2020. EPA received two comments on the proposal.

EPA received two anonymous comments during the comment period. A summary of each comment precedes EPA's response. The full comments are in the rulemaking docket, see Addresses for details on accessing the docket.

Comment 1: Please explicitly state when the second maintenance period ends. Also, please explain what happens to the state's maintenance plan once the second maintenance plan ends.

Response: EPA approved maintenance plans for the Benzie County, Flint, Grand Rapids, Huron County, Kalamazoo-Battle Creek, Lansing-East Lansing, and Mason County areas effective on May 16, 2007 (72 FR 27425). The LMPs for these areas provide for the maintenance of the 1997 ozone NAAQS through the end of the second 10-year portion of the maintenance period. Thus, the maintenance period ends on May 16, 2027.

At the end of the 20-year maintenance period the maintenance plan remains in place and in effect. A state may revise its SIP, including its maintenance plan, after the 20-year period, subject to a CAA section 110(l) demonstration.

Comment 2: EPA should disapprove the contingency measures until the state comes up with better, more specific and not yet implemented contingency measures.

Response: Contrary to the commenter's assertion, Michigan has included a list of specific potential contingency measures in its maintenance plan. These measures are the same list as was included in the original maintenance plans for the areas. While some of the measures may have been implemented, this is certainly not the case for all such as portable fuel container replacement rule, reduce idling program, transit improvements, etc. Even if the State has adopted some measures in a category, that doesn't preclude the State from adopting additional measures in the same category. For example, if a state had adopted a reduced idling program, the state could still implement a more stringent program across a wider portion of the vehicle fleet. Furthermore, because it is not possible to determine what control measure will be most appropriate and effective should a contingency measure be triggered at some point in the future, Michigan is not limited to selecting measures only from its list. If a contingency measure is triggered, Michigan may adopt a contingency measure from this list or chose another contingency measure which has been determined to be effective.

EPA is approving the LMPs for the Benzie County, Flint (Genesee and Lapeer Counties), Grand Rapids (Ottawa and Kent Counties), Huron County, Kalamazoo-Battle Creek (Calhoun, Kalamazoo, and Van Buren Counties), Lansing-East Lansing (Clinton, Eaton, and Ingham Counties), and Mason County areas in Michigan for the 1997 ozone NAAQS. EPA finds the LMPs are adequate to provide for maintenance of the 1997 ozone NAAQS in these areas through the end of the second 10-year portion of the maintenance period.

Under section 175A of 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 regulatory 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, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 5, 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).)

Amend 40 CFR part 52 as follows:

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Publishing Office's  e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2019-0130 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before May 5, 2020. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2019-0130, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of June 7, 2019 (84 FR 26630) (FRL-9993-93), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 8F8729) by Bayer CropScience, 2 T.W. Alexander Drive, P.O. Box 12014, Research Triangle Park, NC 27709. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the fungicide, trifloxystrobin (benzeneacetic acid, ( E,E )-alpha-(methoxyimino)-2-[[[[1-[3-(trifluoromethyl) phenyl]ethylidene]amino]oxy]methyl]-methyl ester) and the free form of its acid metabolite CGA-321113 (( E,E )-methoxyimino-[2-[1-(3-trifluoromethylphenyl)-ethylideneaminooxymethyl]-phenyl]acetic acid) in or on dried shelled pea and bean (except soybean) subgroup 6C at 0.06 parts per million (ppm). That document referenced a summary of the petition prepared by Bayer CropScience, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has modified the crop group name to be consistent with Agency nomenclature.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for trifloxystrobin including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with trifloxystrobin follows.

On February 15, 2019 (84 FR 4340) (FRL-9985-23), EPA published in the Federal Register a final rule establishing a tolerance for residues of the fungicide trifloxystrobin in or on flax seed and amending an existing tolerance for aspirated grain fractions based on the Agency's conclusion that aggregate exposure to trifloxystrobin is safe for the general population, including infants and children. See 84 FR 4340 (FRL-9985-23). That document contains a summary of the toxicological profile and points of departure, assumptions for exposure assessment, and Agency's determination regarding the children's safety factor, which have not changed. The Agency conducted a revised risk assessment to incorporate additional exposure to residues of trifloxystrobin approved since that rulemaking and including the use on pea and bean, dried shelled, except soybean, subgroup 6C.

EPA's exposure assessments have been updated to include the additional exposure from use of trifloxystrobin from use on pea and bean, dried shelled, except soybean, subgroup 6C, i.e., reliance on tolerance-level residues and an assumption of 100 percent crop treated (PCT). EPA's aggregate exposure assessment incorporated this additional dietary exposure, as well as exposure in drinking water and from residential sources, although those latter exposures are not impacted by the new uses on pea and bean and thus have not changed since the last assessment. Further information about EPA's risk assessment and determination of safety supporting the tolerances established in the February 15, 2019 Federal Register action, as well as the new trifloxystrobin tolerance can be found at http://www.regulations.gov in the document entitled “Trifloxystrobin. Human Health Risk Assessment for the Proposed New Use on Flax Seed and Increase of Established Tolerance on Aspirated Grain Fractions,” dated October 31, 2018, in docket ID EPA-HQ-OPP-2017-0532.

Acute dietary risks are below the Agency's level of concern: 3.4% of the acute population adjusted dose (aPAD) for females 13 to 49 years old, the only population group of concern. Chronic dietary risks are below the Agency's level of concern: 58% of the chronic population adjusted dose (cPAD) for all infants less than 1 year old, the group with the highest exposure. There is not expected to be any handler exposure, and there is no adverse systemic hazard via the dermal route of exposure, so the only residential post-application scenario assessed was for the incidental short-term oral exposure of children 1 to less than 2 years old. Using the exposure assumptions described for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs above the LOC of 100 for all scenarios assessed and are not of concern.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to trifloxystrobin residues. More detailed information on the subject action to establish a tolerance in or on pea and bean, dried shelled, except soybean, subgroup 6C can be found in the document entitled, “Trifloxystrobin. Human Health Aggregate Risk Assessment for New Use on Dry Beans and Proposed Crop Group Expansion from Dry Pea to Crop Subgroup 6C” by going to http://www.regulations.gov. The referenced document is available in the docket established by this action, which is described under ADDRESSES . Locate and click on the hyperlink for docket ID number EPA-HQ-OPP-2019-0130.

Adequate enforcement methodology (gas chromatography method with nitrogen phosphorus detection (GC/NPD)) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

Codex has established an MRL of 0.01 ppm for several of the commodities in subgroup 6C with the exception of broad bean, chickpea, cowpea, guar, lupin, blackeyed pea, crowder pea, pigeon pea and southern pea for which no MRL is established. U.S. tolerances for residues in the commodities of subgroup 6C are not harmonized with Codex. Since the Codex MRL is significantly lower for some commodities, harmonization is not possible because lowering the U.S. tolerance could cause U.S. growers to have violative residues despite legal use of the pesticide.

Therefore, tolerances are established for residues of trifloxystrobin in or on pea and bean, dried shelled, except soybean, subgroup 6C at 0.06 ppm. Additionally, the existing tolerance on “pea, dry, seed” is removed as unnecessary since it is part of the new subgroup 6C tolerance.

This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule 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 . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

I. Executive Summary A. What action is the Agency taking?

This final rule establishes the CBI substantiation requirements for manufacturers (which under TSCA includes importers) and processors who claimed specific chemical identities as CBI in previously filed Notices of Activity (NOAs) Form A (Ref. 1) in accordance with the 2017 TSCA Inventory Notification (Active-Inactive) Requirements rule (hereinafter “2017 Active-Inactive Rule,” which is summarized in more detail in Unit III and codified in 40 CFR part 710, subpart B) (Ref. 2). This final rule also amends the existing CBI substantiation requirements for manufacturers and processors who have filed or will file NOAs Form B (Ref. 3) and claimed or claim specific chemical identities as CBI. Manufacturers and processors who previously provided substantiations in NOAs Form A or B for CBI claims for specific chemical identities pursuant to the 2017 Active-Inactive Rule will be required to supplement those substantiations to include responses to two new questions related to a specific chemical identity's susceptibility to reverse engineering. All substantiations must be submitted to the Agency using EPA's Central Data Exchange (CDX), the Agency's electronic reporting portal.

This final rule describes the Agency's plan to review the CBI claims for specific chemical identities that were asserted in NOAs Form A during the one-time retrospective reporting period under the 2017 Active-Inactive Rule, including procedures for the Agency's publication of annual review goals and results. EPA will review each specific chemical identity CBI claim and substantiation, and approve or deny each claim consistent with the procedures and substantive criteria in TSCA sections 8(b)(4) and 14 and 40 CFR part 2, subpart B.

EPA is amending the existing regulations in 40 CFR part 710, subpart B, and is adding provisions about the NOA Form A substantiation process and the Agency's review plan to a new subpart C.

EPA is issuing this rule pursuant to the authority in TSCA section 8(b), 15 U.S.C. 2607(b).

TSCA section 8(b)(4)(C) requires EPA to promulgate a rule that establishes the Agency's plan to review all CBI claims for the specific chemical identities of chemical substances on the confidential portion of the TSCA Inventory that were asserted in an NOA Form A pursuant to the one-time retrospective reporting under the 2017 Active-Inactive Rule. The 2017 Active-Inactive Rule required any reporter who sought to maintain an existing CBI claim for a specific chemical identity to assert that claim as part of the submission of an NOA Form A, but the rule did not require substantiation of those claims at that time. This final rule implements the statutory substantiation and review requirements so as to ensure that only those specific chemical identities that currently qualify for confidential treatment are protected from disclosure by the Agency.

This final rule also addresses a Federal court remand of the 2017 Active-Inactive Rule by amending that rule to add two substantiation questions which will be applicable to all NOA Form B reporters who seek to maintain an existing CBI claim for a specific chemical identity, and by including the same two questions in the newly finalized substantiation requirements for NOA Form A reporters who seek to maintain an existing CBI claim for a specific chemical identity. These substantiation questions address whether a specific chemical identity is readily discoverable through reverse engineering and will ensure the submission of information that EPA will use to evaluate CBI claims for specific chemical identities.

You may be affected by this action if you reported a confidential chemical substance under the 2017 Active-Inactive Rule using an NOA Form A or NOA Form B and sought to maintain an existing CBI claim for a specific chemical identity. You may also be affected by this action if you anticipate reporting a confidential chemical substance under the 2017 Active-Inactive Rule through an NOA Form B in the future and anticipate seeking to maintain an existing CBI claim for a specific chemical identity at that time. The following North American Industrial Classification System (NAICS) codes are not intended to be exhaustive, but rather provide a guide to help readers determine whether this action may apply to them:

• Chemical manufacturing or processing (NAICS code 325).

• Petroleum and coal products manufacturing (NAICS code 324).

“Manufacture” is defined in TSCA section 3(9) (15 U.S.C. 2602(9)) and 40 CFR 710.3(d) to include “import.” Accordingly, all references to manufacture in this document should be understood to include import.

If you have any questions regarding the applicability of this action to a particular entity after reading the regulatory text, consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

EPA has evaluated the potential incremental impacts of this rulemaking in an economic analysis (EA), titled “Economic Analysis for the Final Rule: Procedures for Review of CBI Claims for the Identity of Chemicals on the TSCA Inventory” (Ref. 4), which is available in the docket, discussed in Unit IV., and briefly summarized here.

1. Benefits. The benefits of the rule include improvements in the management of CBI claims for specific chemical identities, including a decrease in the number of unsupported claims of confidentiality. There would also be a corresponding increase in transparency for the public with regard to specific chemical identity information. Overall, the rule results in a more efficient means of enacting the various requirements and duties prescribed to EPA in TSCA, while also providing the potential for a greater level of transparency with regard to the specific chemical identities of chemical substances on the TSCA Inventory.

2. Costs. Over the course of the first ten years after the effective date of the final rule, EPA estimates a one-time total burden and cost for regulated entities of 5,259 hours and approximately $407,000, respectively and an ongoing, annual burden and cost of approximately 0.38 hours and $29, respectively.

Pursuant to TSCA section 8(b), the 2017 Active-Inactive Rule (codified in 40 CFR part 710, subpart B) required manufacturers, and allowed processors, to report those chemical substances on the TSCA Inventory that were manufactured or processed for a nonexempt commercial purpose during the 10-year time period ending on June 21, 2016. EPA used these retrospective notifications—filed on an NOA Form A—to designate chemical substances as “active” or “inactive,” and EPA now includes those active and inactive designations on the TSCA Inventory. Going forward, the 2017 Active-Inactive Rule requires notification if manufacturing or processing of an inactive chemical substance for a nonexempt commercial purpose is expected to resume. On receiving such a forward-looking notification—filed on an NOA Form B—EPA will change the designation of the pertinent chemical substance on the TSCA Inventory from inactive to active. The one-time submission period for NOA Form A ended on October 5, 2018, while the NOA Form B is submitted on an ongoing basis.

Consistent with TSCA sections 8(b)(4)(B)(ii) and (5)(B)(ii), the 2017 Active-Inactive Rule provided that manufacturers and processors filing an NOA Form A or B could seek to maintain an existing CBI claim for a specific chemical identity by including such a request on their NOA Form A or B, through the process established in 40 CFR 710.37(a). NOA Form A submitters were permitted to voluntarily substantiate their CBI claims for specific chemical identities at the time of filing their NOA Form A by answering the substantiation questions set forth in 40 CFR 710.37(c). NOA Form B submitters were (and are, subject to the amendments effectuated through this rule) required to substantiate their CBI claims not later than 30 days after submitting their NOA Form B by answering the same substantiation questions.

On April 26, 2019, the U.S. Court of Appeals for the District of Columbia Circuit entered a judgment in Environmental Defense Fund v. EPA, 922 F.3d 446 (D.C. Cir. 2019), granting in part and denying in part a petition for review of the 2017 Active-Inactive Rule (Ref. 5). The court decision impacted the CBI substantiation provisions set forth in 40 CFR 710.37 as discussed in more detail in the supplemental proposed rule (Ref. 6).

On April 23, 2019, EPA proposed to establish a plan to review all CBI claims for specific chemical identities asserted in an NOA Form A, including the procedures for submitter substantiation and EPA review of those claims (Ref. 7).

In response to the court decision of April 26, 2019, EPA issued a supplemental proposed rule on November 8, 2019 that included revisions to the existing substantiation requirements in the 2017 Active-Inactive Rule at 40 CFR 710.37 and supplemented the proposed rule issued in April 2019. Specifically, EPA proposed two additional questions addressing a specific chemical identity's susceptibility to reverse engineering that manufacturers and processors would be required to answer to substantiate CBI claims for specific chemical identities asserted in an NOA Form A or B; and proposed procedures for manufacturers and processors to use in supplementing substantiations that had already been submitted under the 2017 Active-Inactive Rule to include responses to the two additional questions.

EPA received seven comments during the public comment period for the proposed rule, and an additional five comments during the comment period for the supplemental proposed rule. Submitted comments generally focused on the Agency's proposed substantiation and review processes as well as the duration of protection of CBI from disclosure. A number of commenters requested clarification or provided suggestions that EPA considered in preparing this final rule. EPA has summarized the comments and provided detailed responses in a Response to Comments document that is available in the docket (Ref. 8).

After careful consideration of the public comments received, EPA is finalizing the substantiation requirements and the Agency's review plan as discussed in this unit.

a. Scope. This final rule establishes the substantiation requirements for manufacturers and processors who previously filed NOAs Form A seeking to maintain existing CBI claims to protect the specific chemical identities of active chemical substances on the confidential portion of the TSCA Inventory.

b. Persons subject to substantiation requirements. This final rule provides that any person who filed an NOA Form A requesting to maintain an existing CBI claim for a specific chemical identity must substantiate that confidentiality claim by addressing the substantiation questions in this rule, unless the person is eligible for an exemption. There are two exemptions in this rule which set forth reduced requirements for certain persons who have previously substantiated their CBI claims. These exemptions are substantively unchanged from the supplemental proposed rule.

The first exemption applies to those persons who previously completed the voluntary substantiation process set forth in the 2017 Active-Inactive Rule at 40 CFR 710.37(a)(1). These persons may rely on their previously submitted substantiation in lieu of answering the first six substantiation questions in this rule, and are only required to submit answers to the two questions relevant to reverse engineering that are being finalized in 40 CFR 710.45(b)(7) and (8), signed and dated by an authorized official, and to complete the certification statement in 40 CFR 710.37(e).

The second exemption applies to those persons who previously substantiated their CBI claims for specific chemical identities in different submissions made to EPA less than five years before the substantiation deadline set forth in this rule. So long as that prior substantiation contains information that is responsive to all substantiation questions set forth in this rule at 40 CFR 710.45, these persons may rely on their prior substantiation in lieu of answering the substantiation questions in this rule. To establish eligibility for this exemption and to ensure that EPA can locate and match the prior substantiation with the proper NOA Form A filer, persons who seek to rely on this exemption must report to EPA the submission date; submission type; and case number, transaction ID, or equivalent identifier for the previous submission that contained the substantiation, not later than the deadline specified in this rule. For example, substantiations for CBI claims for specific chemical identities submitted with 2016 or 2020 Chemical Data Reporting (CDR) submissions in accordance with the substantiation procedures at 40 CFR 711.30(b)(1), or with Notices of Commencement (NOCs) in accordance with the substantiation procedures at 40 CFR 720.85(b)(3)(iv), serve as a basis for this exemption.

A person who is eligible for an exemption may choose whether to take advantage of the reduced reporting under this rule afforded by the exemption or submit a new full substantiation in accordance with all requirements of this rule. Persons who have previously submitted a substantiation may prefer to complete a new substantiation under this rule if, for example, they wish to provide updated or additional information to support their CBI claim for a specific chemical identity.

c. Contents of substantiation. The final rule provides that a person substantiating a CBI claim for a specific chemical identity must submit written answers to the questions set forth in the rule at 40 CFR 710.45, signed and dated by an authorized official, and complete a certification statement. If information submitted in response to the substantiation questions is itself claimed as CBI, the submitter must clearly indicate such by marking that information as CBI.

In response to public comments, EPA has revised several of the proposed substantiation questions to improve clarity and reduce any unnecessary burden. First, EPA has chosen not to finalize one proposed question that asked whether the information claimed as confidential is exempt from substantiation pursuant to TSCA section 14(c)(2). EPA agrees with several commenters who noted that the question was neither necessary nor appropriate because no TSCA section 14(c)(2) exemption would ever apply to the CBI claims for specific chemical identities at issue in this rule. Second, in response to comments, EPA has clarified several of the substantiation questions proposed. While these questions remain substantively the same as those proposed (which, with the exception of the two reverse engineering questions addressed in the supplemental proposal, were identical to the questions in the 2017 Active-Inactive Rule at 40 CFR 710.37(c)), they have been re-written for clarity and to more clearly solicit answers potentially more responsive to the substantive criteria the Agency employs in making CBI determinations. Relevant public comments and the resulting changes to the substantiation questions are discussed in greater detail in the Response to Comments document (Ref. 8).

Most notably, EPA divided into three sub-questions the proposed substantiation question asking whether the confidential information appears in any public documents. Though the question as originally worded was intended to capture information in patents and patent applications, state, local, or Federal agency files, and any document required to be publicly disclosed under any other Federal law, EPA rewrote the question to make this more explicit. In addition, EPA clarified the proposed reverse engineering question asking whether the chemical substance can be identified by analysis of the product. The finalized question asks more directly whether the specific chemical identity can be readily discovered by analysis of the substance ( e.g., product, effluent, or emission), in light of existing technologies and any associated costs, difficulties, or limitations. Finally, EPA clarified the proposed substantiation question pertaining to substantial competitive harm to make clearer that responses should include an explanation of how a competitor could use such information and the causal relationship between the disclosure and the harmful effects.

d. When to submit substantiation or information on previous substantiation. The final rule provides at 40 CFR 710.47 that manufacturers and processors seeking to maintain CBI claims for specific chemical identities asserted in an NOA Form A will have 180 days from the effective date of the rule to submit substantiations, including responses to the two new substantiation questions, or, in the case of one of the exemptions, information identifying a previously submitted substantiation. This deadline applies to all persons who asserted CBI claims for specific chemical identities in an NOA Form A, including (1) persons newly substantiating their claims; (2) persons who voluntarily substantiated under the 2017 Active-Inactive Rule and need only submit responses to two substantiation questions under this rule; and (3) persons who substantiated their claims in some other submission within the last five years and need only submit information identifying that prior substantiation. EPA is finalizing a 180-day deadline in response to several comments from industry groups expressing concerns about meeting the proposed 90-day deadline.

e. Failure to report. In the proposed rule, EPA addressed the situation where a person filed an NOA Form A and asserted a CBI claim for a specific chemical identity, but never, either as a voluntary submission or per this rule, provided a substantiation or notice of prior substantiation. EPA had proposed to treat the CBI claim for a specific chemical identity as deficient because no substantiation was provided or referenced and proposed that the Agency may release the specific chemical identity to the public without further notice to the NOA Form A submitter. In response to comments, the final rule provides that when a person who asserted a CBI claim for a specific chemical identity in an NOA Form A failed to timely submit a substantiation or notice of prior substantiation, the CBI claim will be denied, and the submitter will be provided notice and an opportunity to seek judicial review of the final confidentiality determination in accordance with TSCA section 14(g)(2) and 40 CFR 2.306(e).

f. Electronic filing. The final rule provides that information must be submitted electronically via CDX in accordance with the existing regulation at 40 CFR 710.39. Prior to submission, this information must be generated and completed using the e-NOA software module. This is unchanged from what was proposed.

g . Record-keeping requirements. The final rule provides that persons subject to this rule must retain records for a period of five years beginning on the last day of the submission period. This is unchanged from what was proposed.

This final rule also addresses the CBI claim review process, the duration of protection from disclosure, TSCA Inventory updates, the posting of annual review goals and results, and the timeframe for completion of Agency reviews. These provisions are substantively unchanged from the proposal.

a. Review criteria and procedures. The final rule provides that CBI claims for specific chemical identities asserted in NOAs Form A will be reviewed and approved or denied in accordance with the criteria and procedures in TSCA section 14 and 40 CFR part 2, subpart B. The final rule differs from the proposal in that a TSCA section 14 reference is added to the regulatory text to make explicit that the Agency's review criteria and procedures will follow the statutory requirements of TSCA. To the extent that there is any conflict between TSCA section 14 and 40 CFR part 2, subpart B, the statutory provision controls.

b. Duration of protection from disclosure. The final rule provides that a specific chemical identity whose CBI claim was approved by EPA will generally be protected from disclosure for a period of 10 years from the date on which the confidentiality claim was first asserted by any submitter after June 22, 2016. The main exceptions to this period of protection from disclosure are (1) that if prior to the expiration of the period, the claimant notifies EPA that the person is withdrawing the confidentiality claim, EPA will not protect the information from disclosure from that date forward; or (2) if EPA otherwise becomes aware that the information does not qualify for protection from disclosure, the Agency will take the actions described in TSCA section 14(g)(2) to notify the claimant of EPA's intent to disclose the information. The period of protection is also subject to the exceptions and extensions to protection from disclosure enumerated in TSCA section 14. This is unchanged from what was proposed.

c. Updating the TSCA Inventory. The final rule provides that EPA will periodically update the TSCA Inventory based on the results of the reviews of the confidentiality claims for a specific chemical identity. This is unchanged from what was proposed.

d. Posting annual goals and numbers of reviews completed. The final rule provides that at the beginning of each calendar year until all reviews are completed, EPA will publish an annual goal for reviews and the number of reviews completed in the prior year on the Agency website. This activity will begin in 2021, because substantiations are not required to be submitted to EPA until late 2020. The setting of annual review goals will take into consideration the number of claims needing review, available resources, and the statutory target completion date for all reviews to be completed not later than February 19, 2024. The final rule reflects a minor modification from the proposal to clarify that the posting of annual goals and number of reviews completed will cease upon completion of all reviews.

e. Extension. The final rule provides, consistent with the statute, that in the event that EPA determines that the target completion date cannot be met based on the number of claims needing review and the available resources, then EPA will publish a notice in the Federal Register announcing an extension of the deadline to complete its review of all confidentiality claims. The extension may not be for more than two additional years. EPA will provide an explanation of the reasons for the extension in the Federal Register . This is unchanged from what was proposed.

This final rule amends existing substantiation requirements set forth in 40 CFR 710.37(a)(2) and (c)(2) for CBI claims for specific chemical identities asserted in an NOA Form B. These amendments add two substantiation questions relevant to a specific chemical identity's susceptibility to reverse engineering, which claimants will be required to answer when substantiating such CBI claims in the future. The amendments also require any person who has already submitted an NOA Form B and substantiation on that form before the effective date of this final rule to supplement that substantiation within 30 days of the effective date of the final rule by adding responses to the two new questions. All other existing regulatory provisions in 40 CFR 710.37 applicable to the assertion, substantiation, certification, and review of CBI claims remain unchanged.

The estimated incremental impacts of this rulemaking are briefly summarized in this unit and the complete Economic Analysis is available in the docket (Ref. 4). The rule requirements involve an incremental reporting effort for respondents who asserted CBI claims for one or more specific chemical identities in NOAs Form A during the one-time reporting period in 40 CFR part 710, subpart B. The rule requirements also involve an incremental reporting effort for respondents who assert(ed) CBI claims for one or more specific chemical identities in NOAs Form B. These reporting efforts consist of activities that are the same as or similar to those in the 2017 Active-Inactive Rule.

Respondents who submitted an NOA Form A and would potentially be subject to an incremental reporting effort fall into three groups based on the information provided in their submission. The first group (Group (1)) consists of those respondents who voluntarily submitted upfront CBI substantiation as part of the NOA submission process. The second group (Group (2)) consists of those respondents who did not voluntarily submit upfront CBI substantiation, but will be able to use the exemption offered under this rule by referencing a previous substantiation, such as one submitted under the 2016 or 2020 Chemical Data Reporting (CDR) rule (40 CFR part 711) or with a Notice of Commencement. The third group (Group (3)) consists of the remaining respondents who did not voluntarily submit upfront CBI substantiation in their NOA Form A submissions and would be required to provide full substantiation under this rule.

In addition to the three NOA Form A reporting groups, respondents who assert(ed) CBI claims for one or more specific chemical identities in NOAs Form B are subject to an incremental reporting effort. This includes respondents who will submit an NOA Form B as part of ongoing reporting, as well as a set of 54 companies who asserted CBI claims for one or more specific chemical identities in NOAs Form B that was submitted during a one-time transitional reporting period.

Under this rule, the 275 companies who asserted CBI claims for one or more specific chemical identities in NOAs Form A incur a one-time burden and cost. For Group (1), the average one-time burden and costs per company are estimated at approximately 7 hours and $543, respectively (involving an average of 21 chemicals per company) for rule familiarization, providing answers for two substantiation questions relating to reverse engineering, and recordkeeping. For Group (2), the average one-time burden and costs per company are estimated at 5 hours and $390, respectively (involving an average of four chemicals per company), for rule familiarization, identification of a previous substantiation, and recordkeeping. For Group (3), the average one-time burden and costs per company are estimated at 39 hours, and $3,039, respectively (involving an average of 27 chemicals per company), for rule familiarization, full substantiation, and recordkeeping.

Respondents who have filed or will file an NOA Form B that asserts a CBI claim for a specific chemical identity would be required to provide answers for two additional substantiation questions relating to reverse engineering. For NOA Form B submissions occurring on an annual basis, the average incremental burden and costs per company are estimated at approximately 0.38 hours and $29, respectively (involving an average of two chemicals per company). For the 265 NOA Form B submissions from a total of 54 companies that were received during a one-time transitional reporting period, the total one-time burden and cost across all companies are estimated at approximately 50 hours and $3,903, respectively.

The burden and cost estimates associated with the rule include a one-time burden associated with NOA Form A submissions, as well as an ongoing burden and one-time burden associated with NOA Form B submissions. A total of 275 companies are subject to a one-time burden associated with substantiating CBI claims for specific chemical identities asserted in NOAs Form A, including: Group (1), consisting of 149 companies, Group (2), consisting of 23 companies, and Group (3), consisting of 103 companies. The ongoing burden associated with NOA Form B submissions is based on the expectation that each year one company will submit an NOA Form B that includes CBI claims for two specific chemical identities and, therefore, incur a burden associated with ongoing reporting. Additionally, the one-time burden and cost estimates associated with this rule take into account a set of 265 NOA Form B submissions from a total of 54 companies that were received during a one-time transitional reporting period.

The total burden and costs associated with this rule consist of a one-time burden and cost for regulated entities estimated at 5,259 hours and $406,852 and an ongoing annual burden and cost estimated at approximately 0.38 hours and $29 for each year of a ten-year period. The equivalent annualized costs are expected to be $47,729 at a three percent discount rate and $57,968 at a seven percent discount rate (Ref. 4).

The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

Additional information about these statutes and Executive orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders .

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

This action is not a regulatory action under Executive Order 13771 (82 FR 9339, February 3, 2017) because this action is not significant under Executive Order 12866.

The information collection activities in this action have been submitted for approval to the Office of Management and Budget (OMB) under the PRA, 44 U.S.C. 3501 et seq. The Information Collection Requests (ICR) are assigned EPA ICR number ICR No. 2594.03 and OMB Control No. 2070-0210 (Ref. 9). You can find a copy of the ICR in the docket and it is briefly summarized here.

The reporting requirements identified in this action will provide EPA with information necessary to evaluate confidentiality claims and determine whether the claims qualify for protection from disclosure. EPA will review each CBI claim for specific chemical identity and related substantiation, and approve or deny each claim consistent with the procedures and substantive criteria in TSCA sections 8(b)(4) and 14 and 40 CFR part 2, subpart B.

Respondent's obligation to respond: Mandatory under TSCA section 8 and 40 CFR part 710.

Estimated total number of potential respondents: 329 companies (one time) and 1 company annually (ongoing).

Frequency of response: Once per chemical substance.

Estimated total burden: 5,259 hours (one time) and 0.38 hours annually (ongoing). Burden is defined at 5 CFR 1320.3(b).

Estimated total costs: $406,852 (one time) and $29 annually (ongoing), includes no annualized capital investment or maintenance and operational costs.

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. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9 and are displayed on the related collection instrument or form. When OMB approves this ICR, the Agency will announce that approval in the Federal Register and publish a technical amendment to 40 CFR part 9 to display the OMB control number for the approved information collection activities contained in this final rule.

Pursuant to section 605(b) of the RFA, 5 U.S.C. 601 et seq., I certify that this final rule will not have a significant economic impact on a substantial number of small entities. The small entities subject to the requirements of this action are manufacturers (including importers) and processors of chemical substances. The estimated economic impacts on small entities are presented in the Economic Analysis, (Ref. 4), which is available in the docket and briefly summarized here.

As a conservative approach, this small entity analysis applies the highest unit cost to all small entities. When considering the highest estimated average cost per company, the rule is not anticipated to have cost impacts greater than 1% on any small entities. Details of this analysis are included in the accompanying Economic Analysis for this final rule (Ref. 4).

This action does not contain an unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action is not expected to impose enforceable duty on any state, local or tribal governments, and the requirements imposed on the private sector are not expected to result in annual expenditures of $100 million or more for the private sector. As such, EPA has determined that the requirements of UMRA sections 202, 203, 204, or 205 do not apply to this action.

This action does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). It will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Thus, E.O. 13175 does not apply to this action.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997), as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of Executive Order 13045 has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on energy supply, distribution, or use.

Since this action does not involve any technical standards, NTTAA section 12(d), 15 U.S.C. 272 note, does not apply to this action.

This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898 (59 FR 7629, February 16, 1994), because it does not establish an environmental health or safety standard. This action establishes an information requirement and does not affect the level of protection provided to human health or the environment.

This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I, subchapter R, is amended as follows:

This is a summary of the Media Bureau's Order on Reconsideration, DA 20-148, adopted and released on February 11, 2020. The full text is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, Room CY-A257, Washington, DC 20554. This document will also be available via ECFS at https://docs.fcc.gov/public/attachments/DA-20-148A1.docx. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. The complete text may be purchased from the Commission's copy contractor, 445 12th Street SW, Room CY-B402, Washington, DC 20554. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to fcc504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. By this Order, we grant NCTA—The internet & Television Association's (NCTA's) Petition for Clarification 1 of the Media Bureau's Order Denying Motion for Stay of the Commission's Third Report and Order  2 in the above-captioned proceeding. 3 In its Petition, NCTA requests that the Bureau remove from the Stay Denial Order certain language in paragraph 21 that “creates the potential for confusion and the appearance of a conflict with the Third Report and Order.” In particular, NCTA asks that the Bureau excise two statements from paragraph 21. These statements are: “The rules in the [ Third Report and Order ] did not supersede provisions in existing franchise agreements on their effective date” and “[i]f negotiations fail, the terms in the franchise remain in effect unless and until a cable operator challenges those terms and proves that the terms violate the [ Third Report and Order's ] requirements.”

2. After reviewing the record developed in response to the Petition , 4 we agree with NCTA that these statements could be interpreted “to conflict with the Third Report and Order's plain directives and require procedures not mandated by the Commission.” In particular, we note that the Third Report and Order states that “[i]f a franchising authority refuses to modify any provision of a franchise agreement that is inconsistent with this Order, that provision is subject to preemption under section 636(c).” We also note that the Third Report and Order “encourage[s] the parties to negotiate franchise modifications within a reasonable time,” and “find[s] that 120 days should be, in most cases, a reasonable time for the adoption of franchise modifications.” Contrary to these statements in the Third Report and Order, the statements that NCTA is seeking to excise from the Stay Denial Order could be construed as authorizing local franchising authorities (LFAs) to enforce unlawful franchise provisions unless and until a cable operator has proven to a court that they are unlawful.

3. We disagree with the National Association of Telecommunications Officers and Advisors (NATOA) that removing the relevant statements from paragraph 21 of the Stay Denial Order undermines our reasons for denying the stay petition. That argument ignores our two primary reasons for finding that LFAs will not suffer irreparable harm, absent a stay. First, we concluded in the Stay Denial Order that the injury claimed by LFAs (municipalities' loss of critical facilities and services) is speculative. We determined that localities can maintain access to critical facilities and services by adjusting revenues and expenses in response to changes in franchise fee revenue streams—for example, LFAs can maintain critical facilities and services “either by prioritizing some in-kind contributions over others or by prioritizing in-kind contributions over the fees they would otherwise recover.”  5 Second, we concluded that the harm alleged by LFAs (loss of free services) was an economic loss, which under well-established case law, does not, in and of itself, constitute irreparable harm. These grounds alone were sufficient for denying the administrative stay request.

4. NATOA claims that budget amendments and procurement processes to authorize payment for services previously furnished pursuant to a cable franchise are often lengthy, and that LFAs “cannot . . . start the process without knowing what value a cable operator will assert for non-monetary franchise obligations that [would be] offset against franchise fee payments.”  6 However, NATOA provides no evidence that any cable operator would abruptly cease services or take other unilateral action during the pendency of the appeal that would adversely affect municipalities, or create immediate or irreparable harm. Instead, as we explained in the Stay Denial Order, “the Order encouraged LFAs, in response to a request from a cable operator, to negotiate franchise terms that conform to the Order in a reasonable amount of time . . . Thus, for example, an LFA is not required to assess the costs of in-kind contributions that it currently receives from a cable operator ( e.g., free cable service) against the franchise fee until the cable operator asks the LFA to amend the terms of its franchise.” Accordingly, consistent with the terms of this order, we grant NCTA's petition.

5. We therefore conclude that the following two sentences in paragraph 21 of the Stay Denial Order misinterpret the Order: “The rules in the [ Third Report and Order ] did not supersede provisions in existing franchise agreements on their effective date” and “[i]f negotiations fail, the terms in the franchise remain in effect unless and until a cable operator challenges those terms and proves that the terms violate the [ Third Report and Order's ] requirements.” The same is true of the sentence in paragraph 21 of the Stay Denial Order that reads: “At that point, the LFA and the cable operator have 120 days to renegotiate the franchise agreement.” Instead, we find, in accordance with the Third Report and Order, that the LFA and the cable operator have a reasonable period of time to renegotiate the franchise agreement, which in most cases is 120 days. If negotiations fail, the cable operator and the LFA can continue to rely on the processes and remedies that may be contained in their franchise agreement or that are otherwise available. 7

6. Accordingly, it is ordered that, pursuant to the authority contained in sections 4(i), 4(j), 303(r), and 405 of the Communications Act of 1934, as-amended, 47 U.S.C. 154(i)-(j), 303(r), and 405 and the authority delegated in §§ 0.61, 0.283, and 1.106 of the Commission's rules, 47 CFR 0.61, 0.283, and 1.106, this Order in MB Docket No. 05-311 is adopted. It is further ordered that the Petition for Clarification of Order Denying Motion for Stay pending judicial review of the Third Report and Order in this proceeding, filed by NCTA, is granted to the extent indicated above. It is further ordered that this Order shall be effective upon its release.

The fishery for coastal migratory pelagic fish in the Gulf includes king mackerel, Spanish mackerel, and cobia, and is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. All weights for Gulf migratory group king mackerel (Gulf king mackerel) apply as either round or gutted weight.

The commercial sector for Gulf king mackerel is divided into western, northern, and southern zones, which have separate commercial quotas. The southern zone for Gulf king mackerel encompasses an area of the exclusive economic zone (EEZ) south of a line extending due west from the boundary of Lee and Collier Counties on the Florida west coast, and south of a line extending due east from the boundary of Monroe and Miami-Dade Counties on the Florida east coast, and includes the EEZ off Collier and Monroe Counties in south Florida (50 CFR 622.369(a)(1)(iii)).

The commercial quota for the hook-and-line component of the commercial sector in the southern zone is 575,400 lb (260,997 kg) for the current fishing year, July 1, 2019, through June 30, 2020 (50 CFR 622.384(b)(1)(iii)(A)).

Regulations at 50 CFR 622.8(b) and 622.388(a)(1) require NMFS to close any component of the king mackerel commercial sector when its applicable quota has been reached or is projected to be reached by filing a notification with the Office of the Federal Register. NMFS has determined the 2019-2020 hook-and-line commercial quota for Gulf king mackerel in the southern zone will be reached by March 4, 2020. Accordingly, the hook-and-line component of the commercial sector for Gulf king mackerel in the southern zone is closed from March 4, 2020, through the end of the fishing year on June 30, 2020. The commercial hook-and-line component for Gulf king mackerel in the southern zone will reopen on July 1, 2020.

NMFS has also determined that the Gulf king mackerel commercial quota for vessels using run-around gillnet gear in the southern zone was reached on February 25, 2020, and therefore on that date, NMFS closed the southern zone to commercial king mackerel fishing using run-around gillnet gear (85 FR 11861, February 28, 2020). Accordingly, all commercial fishing for Gulf king mackerel in the southern zone is closed effective at 12:01 a.m. local time on March 4, 2020. The commercial hook-and-line component for Gulf king mackerel in the southern zone will reopen on July 1, 2020. The commercial run-around gillnet component will reopen at 6 a.m. local time on January 19, 2021.

A person aboard a vessel that has a valid Federal commercial permit for king mackerel may continue to retain king mackerel under the recreational bag and possession limits set forth in 50 CFR 622.382(a)(1)(ii) and (a)(2), as long as the recreational sector for Gulf king mackerel is open (50 CFR 622.384(e)(1)).

During the commercial closure, king mackerel caught with hook-and-line gear from the closed zone may not be purchased or sold, including those harvested under the recreational bag and possession limits. This prohibition does not apply to king mackerel caught with hook-and-line gear from the closed zone that were harvested, landed ashore, and sold prior to the closure and were held in cold storage by a dealer or processor (50 CFR 622.384(e)(2)).

The Regional Administrator for the NMFS Southeast Region has determined this temporary rule is necessary for the conservation and management of Gulf king mackerel and is consistent with the FMP, the Magnuson-Stevens Act, and other applicable laws.

This action is taken under 50 CFR 622.8(b) and 622.388(a)(1), and is exempt from review under Executive Order 12866.

These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule implementing the commercial quota and the associated AM has already been subject to notice and public comment, and all that remains is to notify the public of the closure. Additionally, allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to implement immediately this action to protect the Gulf king mackerel stock, because the capacity of the fishing fleet allows for rapid harvest of the commercial quota. Prior notice and opportunity for public comment would require time and could potentially result in a harvest well in excess of the established commercial quota.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in effectiveness of the action under 5 U.S.C. 553(d)(3).

Background

The Northeast Multispecies Fishery Management Plan (FMP) requires the use of selective trawl gear in certain times and areas. The FMP specifies the list of selective trawl gear that are approved for use and that meet the required selectivity standards. The FMP also authorizes NMFS to approve additional selective gear, at the request of the New England Fishery Management Council, if the gear meets the regulatory requirements for new selective gear. The regulations (§ 648.85 (b)(6)(iv)(J)( 2 )( i )) require that new selective gear must either: (1) Demonstrate a statistically significant reduction in catch of at least 50 percent, by weight, on a trip-by-trip basis, of each regulated species stock of concern or non-groundfish stocks that are overfished or subject to overfishing; or (2) catch of stocks of concern must be less than five percent of the total catch of regulated groundfish (by weight, on a trip-by-trip basis). Groundfish species (stocks) of concern are defined as a stock that is overfished and, or is subject to overfishing. The New England Fishery Management Council submitted two requests to add the large-mesh belly panel to the list of approved selective gears for: (1) The Georges Bank yellowtail accountability measure (AM); and (2) the southern windowpane AM.

The small-mesh trawl fishery ( e.g., whiting and squid) has a sub-annual catch limit (ACL) and AM for Georges Bank yellowtail flounder. If catch exceeds the sub-ACL, the AM requires small-mesh trawl vessels to use selective trawl gear that reduces flatfish catch in certain areas in a subsequent fishing year.

Southern windowpane flounder is allocated to three fishery components: Groundfish; scallops; and other (non-groundfish) fisheries. The other (non-groundfish) component is primarily the scup, fluke, squid, and whiting fisheries. If the AM for the other (non-groundfish) component is triggered, vessels fishing with any trawl gear with a codend mesh size greater than or equal to five inches (12.7 cm) are required to use one of the approved selective trawl gears to reduce bycatch ( e.g., flounder stocks) in certain areas in Southern New England in a subsequent year.

The selective trawl gears approved for use under these AMs are: Haddock separator trawl; Ruhle trawl; and rope separator trawl. When the New England Fishery Management Council developed, and we adopted, the AMs for the non-groundfish fisheries, many industry members expressed concern that the selective trawl gears currently approved for use were not suitable for their fisheries.

To address this concern, Cornell University conducted a series of studies to test the effectiveness of the large-mesh belly panel in several non-groundfish fisheries. The experimental gear included a large-mesh panel to replace the first bottom belly of the trawl net that allows flatfish such as windowpane and yellowtail flounder to escape. The studies compared catch in a standard trawl for each fishery with a trawl outfitted with the large-mesh belly panel. On Georges Bank when the large-mesh belly panel was compared to a standard small-mesh trawl, catch of all species of concern was reduced on a trip-by-trip basis by 50 percent or more. When the large-mesh belly panel was tested in the southern windowpane flounder AM area, and compared to a net typical of those used in the scup fishery, it reduced catch of windowpane flounder by more than 50 percent on average, but not on each trip. The large-mesh belly panel did not reduce catch of all species of concern by at least 50 percent on a trip-by-trip basis. The results are described in more detail in the proposed rule (83 FR 57395), and copies of the Cornell reports are available from NMFS at the mailing address listed under ADDRESSES .

Based on the results of the Cornell studies, we determined that the large-mesh belly panel meets the necessary gear performance standards for use in the Georges Bank yellowtail AM area, and we are approving the use of this gear in that area. We also determined that the large-mesh belly panel does not meet the gear standard in the southern windowpane AM area because it did not reduce catch of all species of concern by at least 50 percent on a trip-by-trip basis. We are denying the request to approve its use in that area. These AM areas are only triggered when there are ACL overages. Based on fishing year 2018 catch, we will not trigger either AM for fishing year 2020.

We received six comments on the proposed rule. One comment was not related to the rulemaking and is not discussed further. All relevant comments were supportive of the proposal to approve the large-mesh belly panel for use when the Georges Bank yellowtail flounder AM is triggered for the small-mesh fisheries. Two commenters suggested the addition of clarifying text in the regulatory definition of the large-mesh belly panel gear. This final rule contains a revised gear definition based on these comments.

Comment 1: One member of the public supported the large-mesh belly panel for use in the Georges Bank yellowtail AM area because the results of the Cornell University study demonstrated that the gear meets the regulatory standards.

Response: We agree. This final rule approves the large-mesh belly panel as a selective gear permitted for use in the Georges Bank yellowtail flounder AM area, when the AM is triggered.

Comment 2: Two commenters, a gear researcher and a gear manufacturer, commented on the proposed gear definition. Both comments supported the proposed definition but suggested adding additional information to ensure that the area being covered by the large mesh panel is the same as the area of the panel being replaced. If the large-mesh panel inserted into the net was too wide, the gear would not fish as intended, and the effective mesh size would be reduced.

Response: We agree. The design and construction of the large-mesh belly panel outfitted for an existing small mesh trawl is based on the premise that the large-mesh panel will have the same coverage area as the belly-panel it is replacing. To that end, the first step is to determine the ratio of the mesh sizes involved. The large-mesh belly twine is 80 cm (31.5 inches) knot center to knot center full mesh (KKFM), two meshes deep with a 40-cm (15.8-inch) sewing seam on the top and bottom. In most cases, the existing first bottom belly twine sizes are 12 cm (4.7 inches) KKFM and 16 cm (6.3 inches) KKFM yielding ratios of 20:3 and 5:1, respectively. To determine the appropriate width of the large-mesh panel, in number of meshes, you divide the number of meshes of the existing belly by the ratio. Because this ratio is unique to each net, and mesh being replaced, we have not prescribed a specific ratio in the regulatory definition of the net, but have provided a description of how it should be calculated, and several examples of its application.

Comment 3: The researcher who conducted the studies cited in this rule commented in support of the approval of the large-mesh belly panel for the Georges Bank yellowtail flounder AM. The commenter also stated that the large-mesh belly panel significantly reduces the bycatch of windowpane flounder and should be approved for use when the AM for windowpane flounder is triggered for non-groundfish vessels fishing with trawl gear with a codend mesh size greater than or equal to five inches (12.7 cm). The commenter suggested that NMFS should consider creating a new gear performance standard, consistent with accountability measure goals, to focus on evaluating the catch reductions specifically of the species the accountability measure was designed for, rather than all overfished/overfishing stocks.

Response: This final rule approves the large-mesh belly panel for the Georges Bank yellowtail flounder AM. We do not have the authority to approve the large-mesh belly panel for windowpane flounder because it does not meet the selectivity standards. We agree that the gear standard should be reviewed and revisions considered to allow the approval of selective gears specific to the objectives of an AM that are consistent with the FMPs goals and objectives and the Magnuson-Stevens Act requirements. The Council has recommended a modified gear standard when we are considering approval of a selective gear for use as an AM. This revision will be proposed in an upcoming action, Framework 59.

Comment 4: One member of the fishing industry, who participates in the small-mesh fishery, commented in support of the approval of the large-mesh belly panel as a selective gear that can be used in the Georges Bank yellowtail flounder AM area when it has been triggered. The commenter cited the importance of selective gear to enable targeting of healthy stocks while reducing bycatch.

Response: We agree. This final rule approves the large-mesh belly panel for the Georges Bank yellowtail flounder AM. We also agree that the continued development of opportunities that enable fishermen to target healthy stocks, while preventing, or reducing bycatch, is important to the success of the fishing industry and fish stocks.

The Administrator, Greater Atlantic Region, NMFS, determined that these measures are necessary for the conservation and management of the Northeast multispecies fishery and that the measures are consistent with the Magnuson-Stevens Fishery Conservation and Management 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 considered an Executive Order 13771 deregulatory action. We cannot provide an estimate of cost savings due to the nature of this action. Cost savings will occur if the Georges Bank yellowtail AM is triggered and vessels opt to use the large-mesh belly panel gear to access the area. Use of an approved selective gear is required to access the AM area, when the AM has been triggered. This final rule approves the large-mesh belly panel as a selective gear for use in the Georges Bank yellowtail flounder AM area. The addition of a new selective gear provides increased opportunities for fishermen to access healthy target stocks when the area is otherwise closed to fishing. We do not know how many vessels will use the gear, or when the AM will be triggered in the future.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis is not required and none was prepared.

This final rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA). Requests to revise the collection-of-information approvals under control numbers 0648-0212 and 0648-0201 have been submitted to OMB for approval. Public reporting burden for gear code selection is estimated to average one minute per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES ) and by email to OIRA_Submission@omb.eop.gov, or fax to 202-395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall 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 NOAA collections of information may be viewed at: https://www.reginfo.gov/public/do/PRASearch #.

For the reasons stated in the preamble, 50 CFR part 648 is amended as follows:

The New England and Mid-Atlantic Fishery Management Councils jointly manage the Atlantic spiny dogfish fishery in Federal waters under the Spiny Dogfish Fishery Management Plan (FMP), with the Mid-Atlantic Council serving as the administrative lead. The Atlantic States Marine Fisheries Commission manages the fishery in state waters from Maine to North Carolina through an interstate fishery management plan. The FMP requires the specification of an annual catch limit (ACL), annual catch target (ACT), and the total allowable landings (TAL) for up to a 5-year period; however, the Councils often choose to only set specifications up to 3 years at a time. This action implements specifications for the 2020 spiny dogfish fishery that begins on May 1, 2020.

On May 15, 2019, we approved specifications for the 2019 fishing year (84 FR 21723) and projected specifications for fishing years 2020 and 2021. These were based on recent fishery data from the 2018 stock assessment update. The approved measures substantially reduced the coastwide commercial quota in 2019 to prevent overfishing, but included projections for increased quota in 2020 and 2021. The final 2020 spiny dogfish specifications, which are summarized in Table 1, represent a 13-percent increase in commercial quota from fishing year 2019. All other management measures, including the 6,000-lb (2,722-kg) Federal trip limit, remain unchanged.

We have reviewed available 2019 fishery information, and we do not expect that the 2019 annual catch limit will be exceeded. Further, there is no new biological information that would require altering the projected 2020 specifications. Neither the Council nor the Commission recommended any changes to the previously projected multi-year specifications. Based on this, we are implementing the 2020 specifications as projected and outlined in the 2019-2021 spiny dogfish specifications final rule (84 FR 21723, May 15, 2019). These final 2020 specifications will be effective from May 1, 2020, until April 30, 2021. We will finalize the 2021 fishing year specifications prior to May 1, 2021, by publishing another rule following a similar review.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the Atlantic Spiny Dogfish FMP, the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law.

This rule is exempt from review under Executive Order 12866 because this action contains no implementing regulations. This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.

This final rule does not duplicate, conflict, or overlap with any existing Federal rules.

Pursuant to 5 U.S.C. 553(b)(B), we find good cause to waive prior public notice and opportunity for public comment on the final 2020 spiny dogfish specifications, because allowing time for notice and comment is unnecessary. The proposed rule for the 2019 specifications and the projected 2020 and 2021 specifications (84 FR 11923, March 29, 2019) provided the public with the opportunity to comment on these 2020 specifications. While comments received on the multi-year (2019-2021) specifications were mixed on the general issue of whether quotas should be liberalized or made more restrictive, no substantive comments were received on the projected 2020 specifications. Furthermore, this final rule contains no changes from the projected 2020 specifications that were included in both the March 29, 2019, proposed rule (84 FR 11923), and the May 15, 2019, final rule (84 FR 21723). Additionally, the public and industry participants expect this action, because we previously alerted the public (in the March 29, 2019, proposed rule, and the May 15, 2019, final rule) that we would conduct this interim-year review of the multi-year specifications after reviewing the latest fisheries data, with the intent of announcing the final 2020 commercial quota prior to the May 1 start of the fishing year. Thus, the process for issuing the proposed and final rules containing the 2019 specifications and the projected 2020 and 2021 specifications provided a full opportunity for the public to comment on this action. As a result, there is no need to reopen the comment period before issuing this final rule.

A final regulatory flexibility analysis (FRFA) was prepared for this action pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 604(a)), and was included in the May 15, 2019, final rule on the 2019-2021 spiny dogfish specifications. That FRFA incorporated the initial regulatory flexibility analysis (IRFA), and a summary of analyses completed to support the action. Because this action makes no changes to what was originally projected in those proposed and final rules for fishing year 2020 specifications, no changes need to be made to the FRFA in the May 15, 2019, final rule, and no additional analyses are necessary. Furthermore, because advance notice and the opportunity for public comment are not required for this action under the Administrative Procedure Act (as discussed above), or any other law, the analytical requirements of the RFA do not apply to this rule. For all of these reasons, no new regulatory flexibility analysis is required, and none has been prepared.

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