Discussion

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0138, dated June 12, 2019 (“EASA AD 2019-0138”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A330-200 Freighter, A330-200, A330-300, A340-200, and A340-300 series airplanes.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A330-200 Freighter, A330-200, A330-300, A340-200, and A340-300 series airplanes. The NPRM published in the Federal Register on October 9, 2019 (84 FR 54049). The NPRM was prompted by reports that elevator skin panels were found disbonded as a result of water ingress. The NPRM proposed to require repetitive detailed inspections of skin panels on both elevators, and corrective actions if necessary.

The FAA is issuing this AD to address disbonding of the elevator skin panels. This condition, if not detected and corrected, could affect the structural integrity of the elevators, possibly resulting in reduced control of the airplane. See the MCAI for additional background information.

The FAA gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment.

Delta Air Lines (DAL) requested that paragraph (c) of the proposed AD be modified to refer to Table 1 of EASA AD 2019-0138 for affected parts, or that the proposed AD include a paragraph providing actions for airplanes not equipped with the affected part numbers. DAL asserted that although the NPRM is applicable to all Airbus SAS airplanes, EASA AD 2019-0138 provides additional details, namely the affected elevator part numbers, and those details should be referenced in paragraph (c) of the proposed AD.

The FAA disagrees with the requested modification. EASA AD 2019-0138 is applicable to Airbus SAS Model A330-200 Freighter, A330-200, A330-300, A340-200, and A340-300 series airplanes, all manufacturer serial numbers, the same airplanes to which this AD applies. Further, paragraph (g) of this AD requires the actions specified in EASA AD 2019-0138, which includes the list of affected parts in Table 1 of EASA AD 2019-0138. Therefore, no change to this AD is necessary in this regard.

DAL also requested clarification of whether the requirements of paragraph (i) of AD 2011-03-10, Amendment 39-16594 (76 FR 6543, February 7, 2011) (“AD 2011-03-10”), are still retained, and that a statement specifying that retention be added to the proposed AD. The commenter observed that paragraph (i) of the proposed AD terminates all requirements of AD 2011-03-10, yet paragraph (i) of AD 2011-03-10 identifies specific part number and serial number combinations as having conditional activities, and identification of those combinations can be verified by records review. DAL further remarked that the proposed AD does not address the actions specified in paragraph (i) of AD 2011-03-10 nor retain the requirement to verify part number and serial number combinations.

The FAA does not agree to add a clarifying statement in this AD. Paragraph (i) of AD 2011-03-10 is the restatement of the requirements of paragraph (g) of AD 2005-20-32, Amendment 39-14329 (70 FR 59263, October 12, 2005), which is superseded by paragraph (k) of AD 2011-03-10. Accomplishment of actions specified in paragraph (k) of AD 2011-03-10 terminates the requirements of paragraph (i) of AD 2011-03-10. Paragraph (k) of AD 2011-03-10 refers to Table 1 of AD 2011-03-10, which defines the affected elevator part numbers.

In addition, FAA AD 2011-03-10 is based on EASA AD 2009-0255, dated December 1, 2009 (“EASA AD 2009-0255”). EASA AD 2019-0138 retains the requirements of EASA AD 2009-0255, which is superseded. Table 1 of EASA AD 2019-0138 contains the affected elevator part numbers, which are the same as those defined in Table 1 of FAA AD 2011-03-10. Compliance with EASA AD 2019-0138 in its entirety constitutes compliance with this AD and thus terminates all actions specified in AD 2011-03-10, as reflected in paragraph (i) of this AD.

The FAA has not changed this AD with regard to this request.

The FAA has revised the formatting of paragraph (h) of this AD. This change does not affect the content or intent of that paragraph.

The FAA reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the change described previously and minor editorial changes. The FAA has determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

We also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.

EASA AD 2019-0138 describes procedures for a detailed inspection of the affected parts and corrective actions. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 103 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need these on-condition actions:

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

Discussion

The FAA has received a report of a Gulfstream Model GVII-G500 airplane that was involved in a landing incident where the alpha (angle of attack) limiter engaged during the landing flare in unstable air. The engagement of the alpha limiter resulted in insufficient nose-up authority to control the descent rate at touchdown even though the sidestick was in the full aft position. The airplane landed in a 900-feet-per-minute descent, with resulting damage to the airplane. The flight control system alpha limiter can engage even when the airplane is not near a critical angle of attack and limit the pilot's pitch authority in the flare, resulting in a landing at a high rate of descent. Unstable air, combined with rapid, large, and alternating pitch commands, contributes to the alpha limiter engaging at an inappropriate time, possibly resulting in a high rate of descent contact with the runway and loss of control of the airplane as a result of a hard landing. To address this issue, the FAA is requiring revisions to be made to the AFM for your airplane. The revised AFM limits the maximum crosswind component for landing, and also increases the normal approach speeds, based on steady-state winds and wind gusts. These new and revised operating limitations and revised landing procedures minimize the possibility of unintended alpha limiter engagement thereby minimizing the possibility of reduced pilot flight control authority during the landing flare.

The FAA reviewed following service information, which has been revised to provide new and revised operating limitations and flight control and landing procedures in strong winds and gusty conditions.

Gulfstream GVII-G500 Airplane Flight Manual, GAC-AC-GVII-G500-OPS-0001, Revision 5, dated March 3, 2020.

• Step 3., “Wind Conditions,” of Section 01-02-10, “Runway, Slope and Wind Conditions,” of Chapter 01, “LIMITATIONS.”

• Step 15., “Approach Speed,” of Section 01-03-40, “Airspeed Limitations,” of Chapter 01, “LIMITATIONS.”

• Section 01-27-10, “Normal Control Laws,” of Chapter 01, “LIMITATIONS.”

• Step 5., Section 01-34-40, “Takeoff and Landing Data (TOLD),” of Chapter 01, “LIMITATIONS.”

• “WARNING,” preceding Step 4. of Section 02-05-50, “Landing,” of Chapter 02, “NORMAL OPERATIONS.”

• Step 11., “Landing,” of Section 03-12-10, “Zero Flaps or Partial Flaps Landings,” of Chapter 03, “ABNORMAL PROCEDURES.”

• Step 8., “Final Approach Fix,” of Section 04-08-40, “One Engine Inoperative Landing Procedure,” of Chapter 04, “EMERGENCY PROCEDURES.”

• Step 1, “Introduction,” of Section 05-11-10, “Threshold Speeds,” of Chapter 05, “PERFORMANCE FAA BASELINE.”

• Step 1, “Introduction,” of Section 5A-11-10, “Threshold Speeds,” of Chapter 5A, “PERFORMANCE (ASC 022).”

Gulfstream GVII-G600 Airplane Flight Manual, GAC-AC-GVII-G600-OPS-0001, Revision 3, dated March 3, 2020.

• Step 3., “Wind Conditions,” of Section 01-02-10, “Runway, Slope and Wind Conditions,” of Chapter 01, “LIMITATIONS.”

• Step 15., “Approach Speed,” of Section 01-03-40, “Airspeed Limitations,” of Chapter 01, “LIMITATIONS.”

• Section 01-27-10, “Normal Control Laws,” of Chapter 01, “LIMITATIONS.”

• Steps 3. and 4., Section 01-34-40, “Takeoff and Landing Data (TOLD),” of Chapter 01, “LIMITATIONS.”

• “WARNING,” preceding Step 4., of Section 02-05-50, “Landing,” of Chapter 02, “NORMAL OPERATIONS.”

• Step 11., “Landing,” of Section 03-12-10, “Zero Flaps or Partial Flaps Landings,” of Chapter 03, “ABNORMAL PROCEDURES.”

• Step 8.,” “Final Approach Fix,” of Section 04-08-40, “One Engine Inoperative Landing Procedure,” of Chapter 04, “EMERGENCY PROCEDURES.”

• Step 1, “Introduction,” of Section 05-11-10, “Threshold Speeds,” of Chapter 05, “PERFORMANCE.”

• Step 1, “Introduction,” of Section 05-11-20, “Tire Speed and BKE Limited Maximum Landing Weight,” of Chapter 05, “PERFORMANCE.”

These documents are distinct because they apply to different airplane models. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA is issuing this AD because the agency evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This AD requires revising the AFM for your airplane to incorporate revised limitations and procedures. Specific revisions must be made to the sections of the applicable AFM described previously.

This AD specifies that the owner/operator (pilot) may revise the AFM. Revising an AFM is not considered a maintenance action that must be performed by a certified person as specified in 14 CFR 43.3 and may be done by a pilot holding at least a private pilot certificate. This action must be recorded in the aircraft maintenance records to show compliance with this AD.

The FAA considers this AD interim action. The manufacturer is currently developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, the FAA might consider additional rulemaking.

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

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule because, as described in the Discussion section of this AD, inappropriate alpha limiter engagement during the landing flare limits the pilot's pitch authority during a critical phase of flight near the ground, and could result in a landing at a high rate of descent and the possible consequent loss of control of the airplane. Given the significance of the risk presented by this unsafe condition, it must be immediately addressed.

Accordingly, notice and opportunity for prior public comment are impracticable pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the reasons stated above, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

The requirements of the RFA do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, the FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2020-0199 and Product Identifier 2020-NM-035-AD at the beginning of your comments. The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this final rule. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

The FAA estimates that this AD affects 62 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

(2) Will not affect intrastate aviation in Alaska.

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

I. Background

In a document published in the Federal Register of October 2, 2018 (83 FR 49508), FDA announced that we had filed a food additive petition (animal use) (FAP 2306) submitted by Kemin Industries, Inc., 1900 Scott Ave., Des Moines, IA 50317. The petition proposed that the regulations for food additives permitted in feed and drinking water of animals be amended to provide for the safe use of chromium propionate as a source of supplemental chromium in horse feed.

FDA concludes that the data establish the safety and utility of chromium propionate as a source of supplemental chromium in horse feed and that the food additive regulations should be amended as set forth in this document.

In accordance with § 571.1(h) (21 CFR 571.1(h)), the petition and documents we considered and relied upon in reaching our decision to approve the petition will be made available for public disclosure (see FOR FURTHER INFORMATION CONTACT ). As provided in § 571.1(h), we will delete from the documents any materials that are not available for public disclosure.

The Agency has carefully considered the potential environmental impact of this action and has concluded that the action will not have a significant impact on the human environment and that an environmental impact statement is not required. FDA's finding of no significant impact and the evidence supporting that finding, contained in an environmental assessment, may be seen in the Dockets Management Staff (see ADDRESSES ) between 9 a.m. and 4 p.m., Monday through Friday.

Any person who will be adversely affected by this regulation may file with the Dockets Management Staff (see ADDRESSES ) either electronic or written objections. Each objection shall be separately numbered, and each numbered objection shall specify with particularity the provision of the regulation to which objection is made and the grounds for the objection. Each numbered objection on which a hearing is requested shall specifically so state. Failure to request a hearing for any particular objection shall constitute a waiver of the right to a hearing on that objection. Each numbered objection for which a hearing is requested shall include a detailed description and analysis of the specific factual information intended to be presented in support of the objection in the event that a hearing is held. Failure to include such a description and analysis for any particular objection shall constitute a waiver of the right to a hearing on the objection.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 573 is amended as follows:

Background

This document contains amendments to the User Fee Regulations under 26 CFR part 300 regarding user fees charged for processing offers in compromise submitted in accordance with section 7122 of the Internal Revenue Code (Code) and § 301.7122-1 of the Procedure and Administration Regulations.

The Independent Offices Appropriations Act of 1952 (IOAA), which is codified at 31 U.S.C. 9701, authorizes Federal agencies, including the IRS, to prescribe regulations establishing user fees for services provided by the agency. Regulations prescribing user fees are subject to the policies of the President, which are currently set forth in the Office of Management and Budget Circular A-25 (OMB Circular), 58 FR 38142 (July 15, 1993). The OMB Circular allows agencies to impose user fees for services that confer a special benefit to identifiable recipients beyond those accruing to the general public. The agency must calculate the full cost of providing those benefits, and, in general, the amount of a user fee should recover the full cost of providing the service, unless the Office of Management and Budget (OMB) grants an exception under the OMB Circular.

On October 13, 2016, the Treasury Department and the IRS published in the Federal Register (81 FR 70654) a notice of proposed rulemaking (REG-108934-16) relating to the user fees charged for processing offers in compromise under section 7122 and § 301.7122-1. The notice of proposed rulemaking proposed to increase the fee under 26 CFR 300.3 for processing an offer in compromise from $186 to $300, effective for offers in compromise submitted on or after February 27, 2017. Under the notice of proposed rulemaking, offers based on doubt as to liability and offers from low-income taxpayers, as defined in § 300.3(b)(1)(ii), would continue to be excepted from a user fee. As explained in the notice of proposed rulemaking, the proposed user fee (even after the increase) was substantially less than the full cost to the IRS of providing this service and the OMB has granted an exception to the full-cost requirement.

Section 1102 of the Taxpayer First Act, Public Law 116-25, 133 Stat. 981, 986 (2019), which was enacted on July 1, 2019, added paragraph (3) to section 7122(c). Section 7122(c)(3) exempts certain low-income taxpayers from payment of the offer in compromise user fee otherwise required in connection with the submission of an offer in compromise. These low-income taxpayers are individuals with adjusted gross income, as determined for the most recent taxable year for which such information is available, which does not exceed 250 percent of the applicable poverty level (as determined by the Secretary of the Treasury or his delegate). Section 1102(b) of the Taxpayer First Act provides that section 7122(c)(3) “shall apply to offers-in-compromise submitted after the date of the enactment of this Act,” that is, offers in compromise submitted after July 1, 2019.

In response to the notice of proposed rulemaking, four comments were received. One comment requested a public hearing, which was held on December 16, 2016. At the hearing, the Treasury Department and the IRS received testimony from two speakers from one organization who shared the allotted speaking time.

After careful consideration of the comments and hearing testimony, the Treasury Department and the IRS have made some modifications to the proposed regulations, including nonsubstantive editorial changes to the text of § 300.3(b)(2)(ii).

Specifically, in response to the comments and testimony received, the final regulations provide a more limited increase of the user fee under § 300.3 for processing an offer in compromise from $186 to $205, a 10 percent increase. This more limited increase is effective for offers in compromise submitted on or after April 27, 2020. The $205 user fee remains substantially less than the full cost to the IRS of providing this service. As required by the IOAA and the OMB Circular, the IRS will continue to biennially review the user fee, and the Treasury Department and the IRS will adjust and increase the fee as appropriate.

The final regulations also continue to except offers based on doubt as to liability from a user fee, and expand the definition of low-income taxpayer consistent with section 7122(c)(3) to help reduce the burden on taxpayers.

This Treasury Decision adopts the proposed regulations, as modified.

The first comment suggested that the user fee for processing an offer in compromise should either remain at $186 or be lowered. In support of this recommendation, the comment stated that “[t]he service that the IRS provides does not make a large enough financial dent to justify hurting those who need this service with larger fees.” As noted more fully in the notice of proposed rulemaking, the full cost to the IRS for an offer in compromise in 2016 was $2,450. As required by the IOAA and the OMB Circular, the IRS recently completed its 2019 biennial review of the offer in compromise program and determined that the full cost of an offer in compromise was $2,374.

When an offer in compromise is accepted, the user fee is either applied against the amount to be paid under the offer or refunded to the taxpayer if the taxpayer requests a refund pursuant to § 300.3(b)(2). Therefore, except for the timing of the payment, a taxpayer that can afford to pay the fee who has an accepted offer in compromise under effective tax administration pursuant to § 301.7122-1(b)(3), or doubt as to collectibility with a determination that collection of an amount greater than the amount offered would create economic hardship within the meaning of § 301.6343-1, is no worse off having paid the user fee because the amount of the user fee reduces the amount of the offer accepted to compromise the taxpayer's existing tax obligation owed to the IRS or is refunded to the taxpayer. In other cases, a taxpayer with an accepted offer in compromise is no worse off having paid the user fee because the fees paid to request an offer in compromise are generally applied to offset existing tax obligations so no amounts are kept in excess of amounts owed to the IRS. Under the OMB Circular, the user fee for a special benefit generally should recoup the full cost to the government for providing that special benefit. As explained in the notice of proposed rulemaking, an agency should set the user fee at an amount that recovers the full cost of providing the service unless the agency requests, and the OMB grants, an exception to the full cost requirement. The IRS has requested, and the OMB has granted, an exception to the full cost requirement for low-income taxpayers and offers based on doubt as to liability from the user fee because the Commissioner of Internal Revenue has determined that there is a compelling tax administration reason for doing so. The increased user fee for offers in compromise balances the need to recover more of the costs with the goal of encouraging offers in compromise.

The second comment had seven main concerns and additional concerns with respect to each of these main concerns.

The second comment's first main concern was that offers in compromise should not be subject to fees because in the commenter's opinion the IRS generally does not charge for fundamental government services that primarily benefit the general public. The comment stated that the offer in compromise program provides at least an incidental benefit to taxpayers seeking offers in compromise; however, the offer in compromise program is a fundamental government service that primarily and independently benefits the government and the public fisc. The comment suggested that because the IRS is prohibited from taking collection action against a taxpayer when an offer is pending, for 30 days after an offer has been rejected, and for the duration of time that a taxpayer appeals a rejected offer, these were not discretionary activities that the IRS could choose to discontinue. Rather, the comment asserted that these are fundamental government services available to all taxpayers, not just those taxpayers choosing to conduct a particular business. The comment suggested that these purported fundamental services independently benefit all taxpayers rather than providing special benefits to special interests. The comment stated that it was not clear the OMB Circular authorized the IRS to charge a fee for processing offers in compromise as any specific beneficiary of an offer in compromise is arguably obscured by the fact that the IRS and the public fisc are the primary and direct beneficiaries of the offer in compromise program. The comment noted that any benefit accruing to the taxpayer seeking an offer in compromise was designed as an incentive to encourage tax debtors to seek an offer in compromise, which is a benefit to the government. The comment identified entering into a closing agreement, visiting a taxpayer assistance center, calling the IRS, using the electronic payment or filing systems, receiving a communication, making quarterly payments or deposits, processing a Form 2848, or using the “where's my refund” website as services the IRS provides without charging a user fee. The comment concluded that charging a user fee for processing an offer in compromise appears inconsistent and arbitrary when compared to the previously identified services provided without a user fee.

As described in the preamble to the proposed regulations, the offer in compromise program confers a special benefit on identifiable recipients beyond those accruing to the general public. A taxpayer with an accepted offer in compromise receives the special benefit of resolving his or her tax liabilities for a compromised amount, provided the taxpayer complies with the terms of the offer, and the benefit of paying the compromised amount over a period not to exceed 24 months. The comment addresses this specific benefit as incidental, however, it is the core benefit of an offer in compromise. The comment was accurate in stating that section 6331(k)(1) of the Code generally prohibits the IRS from levying to collect taxes while a request to enter into an offer in compromise is pending, for 30 days after a rejection, and, if a timely appeal of a rejection is filed, for the duration of the appeal. However, while the IRS is required by statute to cease levying to collect taxes during this period, the IRS may still charge a fee for providing that service. In fact, under the OMB Circular, there are several examples of special benefits ( e.g., passport, visa, patent) for which the issuing agency may charge a fee even though the agency is required to issue such benefit if the individual meets certain statutory or regulatory requirements. Because of these special benefits, the IOAA and the OMB Circular authorize the IRS to charge a user fee for the offer in compromise that reflects the full cost of providing the service of the offer in compromise program to the taxpayer. This special benefit does not accrue to the general public because taxpayers are otherwise obligated to pay the entire amount of outstanding taxes immediately when due and are otherwise subject to all authorized IRS collection actions.

Even if it is argued that the government derives some general benefit from collecting outstanding tax liabilities, it is still appropriate under the OMB Circular to charge a user fee for processing an offer in compromise because offers in compromise provide “specific services to specific individuals.” Seafarers Int'l Union of N. Am. v. U.S. Coast Guard, 81 F.3d 179, 183 (D.C. Cir. 1996). The specific individual is the identifiable taxpayer who requests an offer in compromise and receives the specific benefits previously described and more fully described in the notice of proposed rulemaking. The benefit to the government of collecting on outstanding tax liabilities is a benefit that accrues to the public generally and does not diminish the special benefit provided to the specific, identifiable taxpayer requesting an offer in compromise. As noted in the notice of proposed rulemaking, the IOAA permits the IRS to charge a user fee for providing a “service or thing of value.” 31 U.S.C. 9701(b). A government activity constitutes a “service or thing of value” when it provides “special benefits to an identifiable recipient beyond those that accrue to the general public.” See OMB Circular section 6(a)(1). Among other things, a “special benefit” exists when a government service is performed at the request of a taxpayer and is beyond the services regularly received by other members of the same group or the general public. See OMB Circular section 6(a)(1)(c). In connection with an offer in compromise, the special benefit is only provided in response to a request by a taxpayer for the consideration of an offer in compromise.

By the very nature of government action, the general public will almost always experience some benefit from an activity that is subject to a user fee. See, e.g., Seafarers, 81 F.3d at 184-85 (D.C. Cir. 1996). However, as long as the activity confers a specific benefit upon an identifiable beneficiary, it is permissible for the agency to charge the beneficiary a fee even though the public will also experience an incidental benefit. See Engine Mfrs. Ass'n v. EPA, 20 F.3d 1177, 1180 (D.C. Cir. 1994) (“If the agency does confer a specific benefit upon an identifiable beneficiary . . . then it is of no moment that the service may incidentally confer a benefit upon the general public as well.”) citing Nat'l Cable Television Ass'n v. FCC, 554 F.2d 1094, at 1103 (D.C. Cir. 1976). Furthermore, the benefit to the public fisc of collecting outstanding taxes is not an additional benefit to the government because the IRS would collect those amounts through other means absent the offer in compromise. Even so, an agency is still entitled to charge for services that assist a person in complying with his or her statutory duties. See Elec. Indus Ass'n v. FCC, 554 F.2d 1109, 1115 (D.C. Cir. 1976).

For purposes of these regulations, the IRS has considered comments relating to the offer in compromise user fees and comments relating to other services for which no fee is charged are outside the scope of this rulemaking. With respect to offer in compromise user fees, the IRS has charged fees since 2003 in accordance with the OMB Circular that requires full cost unless an exception is granted. The OMB Circular requires the IRS to review the user fees it charges for special services biennially to ensure that the fees are adjusted for cost. See OMB Circular section 8(e). As explained in detail in the notice of proposed rulemaking, the reduced offer in compromise user fee is consistent with these requirements.

The second comment's second main concern was that Congress's decision to impose “constraints on IRS resources” is an inadequate justification for increasing the offer in compromise fee.

Section 6(a)(2)(a) of the OMB Circular provides that user fees will be sufficient to recover the full cost to the government of providing the service except as provided in section 6(c) of the OMB Circular. The exceptions in section 6(c)(2) of the OMB Circular provide that agency heads may recommend to the OMB that exceptions to the full cost requirement be made when either (1) the cost of collecting the user fee would represent an unduly large part of the fee or (2) any other condition exists that, in the opinion of the agency head, justifies an exception. The cost of collecting the proposed user fees for offers in compromise will not represent an unduly large part of the fee for the activity because the IRS returns offers in compromise submitted without a user fee without consideration. See Internal Revenue Manual (IRM) 5.8.2 and 5.8.3.

The OMB Circular requires the IRS to review the user fees it charges for special services biennially to ensure that the fees are adjusted to reflect the full cost to the IRS. As discussed in the notice of proposed rulemaking, the IRS completed its 2015 biennial review of the offer in compromise program and determined that the full cost to the IRS of providing the special service of an offer in compromise was $2,450. As required by the IOAA and the OMB Circular, the IRS recently completed its 2019 biennial review of the offer in compromise program and determined that the full cost of an offer in compromise was $2,374. As noted above, section 6(a)(2)(a) of the OMB Circular requires that user fees recover the full cost to the government of providing the service and nothing in the OMB Circular mandates agency heads to seek an exception to the full cost requirement. Nonetheless, the Commissioner of Internal Revenue determined that there is a compelling tax administration reason for seeking an exception to the full cost requirement and made the decision to seek such an exception from the OMB. The OMB granted the exception. After consideration of the comments received, the Treasury Department and the IRS determined the proposed fee should be lowered to $205, which is substantially less than the full cost incurred by the IRS to provide this special benefit to taxpayers seeking it. The $205 user fee balances the need to recover more of the costs with the goal of encouraging offers in compromise. Furthermore, the IRS has continued to request, and the OMB has continued to grant, an exception to the full cost requirement for offers in compromise submitted by low-income taxpayers and offers in compromise based on doubt as to liability.

The second comment's third main concern was that public policy weighs in favor of eliminating the offer in compromise fee. The comment stated that section 7803(a)(3) provides that the Commissioner of Internal Revenue shall execute his duties in accord with taxpayer rights and shall ensure that all employees are familiar with and act in accord with taxpayer rights, including the right to privacy, which includes the right to expect that enforcement “will be no more intrusive than necessary.” The comment stated that the user fee was inconsistent with the right to privacy because charging an increased user fee would dissuade taxpayers from seeking offers in compromise, thus triggering enforcement action that would otherwise be unnecessary. The comment stated that increasing the fee creates an obstacle for many taxpayers who would otherwise consider an offer in compromise to resolve their tax liability, and the IRS would thereby undermine public policy goals expressed by Congress.

The comment's reliance on section 7803(a)(3) is misplaced because the amount of the offer in compromise user fee is governed by section 7122 and the IOAA. The IOAA states that the services provided by an agency should be self-sustaining to the extent possible. 31 U.S.C. 9701(a).

The second comment's fourth main concern was that the offer in compromise fee was likely to cost more, in terms of lost tax revenue and increased enforcement costs, than it will generate in user fees. The comment claimed that the proposed user fee increase was likely to dissuade taxpayers in every income category from submitting offers in compromise. The comment cites to the Treasury Department's General Explanations of the Administration's Fiscal Year 2017 Revenue Proposals, which included a proposal to repeal the section 7122(c)(1) requirement for a down payment to accompany submitted offers in compromise, for its conclusion that eliminating such a requirement would raise revenue by improving access to the offer in compromise program.

The prior Administration's legislative proposal, which was not adopted, addressed the statutory requirement for a down payment to accompany submitted offers in compromise. The down payment requirement is a separate issue, mandated by section 7122(c)(1). Section 7122(c)(1) does not address user fees, but instead requires submissions of offers in compromise to be accompanied by down payments, which is unrelated to the determination of the appropriate user fee to charge for the offer in compromise program. By statute, each service or thing of value provided by an agency to a person is to be self-sustaining to the extent possible. 31 U.S.C. 9701(a). The user fee associated with the service must be fair and based on the costs to the government, the value of the service to the recipient, and public policy or interest served. 31 U.S.C. 9701(b). The updated user fee balances the need for the service to be self-sustaining with the goal of encouraging offers in compromise.

The second comment's fifth main concern was that the offer in compromise fee is an accounting “device” that the IRS is pursuing due to a conflict of interest. The comment stated that an offer in compromise fee will reduce tax revenue by converting what would otherwise be tax collections that benefit the public fisc into user fee collections that only benefit the IRS. According to the comment, the conversion occurs because the offer in compromise user fee reduces funds that the taxpayer can use to settle the liability and the amount that the IRS will accept as a compromise. The comment alleged that the IRS pursues this accounting “device” because of a claimed conflict of interest, which is claimed to be the IRS's authority to retain certain user fee collections.

As noted above, the full cost to the IRS for an offer in compromise was $2,374. The IRS, however, is increasing the user fee for providing this special benefit from $186 to $205. When considering whether the taxpayer has offered an acceptable amount for an offer in compromise, the IRS reduces the taxpayer's reasonable collection potential (RCP) by the amount of the user fee paid because those funds are no longer part of the taxpayer's assets. When an offer in compromise is accepted under effective tax administration pursuant to § 301.7122-1(b)(3), or doubt as to collectibility with a determination that collection of an amount greater than the amount offered would create economic hardship within the meaning of § 301.6343-1, the user fee is either applied against the amount to be paid under the offer or refunded to the taxpayer if the taxpayer requests a refund pursuant to § 300.3(b)(2). In other cases, a taxpayer with an accepted offer in compromise is no worse off having paid the user fee because the fees paid to request an offer in compromise are generally applied to offset existing tax obligations so no amounts are kept in excess of amounts owed to the IRS. Thus, the taxpayer receives the benefit of the specific services provided by the IRS in processing the offer in compromise and a reduction in the taxpayer's tax liability. A taxpayer paying $205 for a special service the provision of which costs the IRS more than $205 creates no conflict of interest for the IRS.

The second comment's sixth main concern was that to help mitigate the IRS's conflict of interest, the IRS should conduct a cost benefit analysis before moving forward with an increase to the offer in compromise user fee as the IRS has agreed to do for future user fee proposals and that may also be required by Executive Order 13563. The comment asked the IRS to mitigate its conflict of interest by quantifying and considering the following factors before adopting or increasing any offer in compromise user fee: (1) Indirect costs that are likely to result from the proposed user fee(s), (2) effect of user fees on taxpayer rights or burdens, (3) any resulting reductions in voluntary compliance, or (4) any impairment of the IRS mission. The comment stated that even though the IRS agreed to update the Internal Revenue Manual to require IRS business units to consider these factors, because the offer in compromise fee increase was proposed before that agreement was made, the IRS should not move forward with these regulations before it conducts this analysis and discloses it to the public.

As discussed in the notice of proposed rulemaking and the Special Analyses in the Treasury Decision, certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Further, the notice of proposed rulemaking contained detailed accounting of the costs of the offer in compromise program. As discussed more fully in the previous response to the comment's second main concern and in the notice of proposed rulemaking, the OMB Circular requires the IRS to review the user fees it charges for special services biennially to ensure that the fees are adjusted for cost. As noted more fully in the notice of proposed rulemaking, the IRS determined after its 2015 biennial review that the full cost to the IRS for providing the special service of an offer in compromise was $2,450. The Commissioner of Internal Revenue then determined that there is a compelling tax administration reason for seeking an exception to the full cost requirement from the OMB and sought such an exception from the OMB, which the OMB granted. After completing its 2019 biennial review, the IRS determined that the full cost to the IRS for providing the special service of an offer in compromise was $2,374. The $205 fee balances the need to recover more of the costs with the goal of encouraging offers in compromise. Furthermore, the IRS has continued to request, and the OMB has continued to grant, an exception to the full cost requirement for offers in compromise submitted by low-income taxpayers and offers in compromise based on doubt as to liability. In deciding to seek the exception to the full cost requirement for all taxpayers, low-income taxpayers, and taxpayers seeking an offer in compromise based on doubt as to liability, the Commissioner of Internal Revenue considered the four factors identified in the comment: The indirect costs that are likely to result from the proposed fee(s); the effect of fees on taxpayer rights or burden; any resulting reductions in voluntary compliance; and any impairment of the IRS mission, and carefully weighed them against the goal of recovering costs. Rather than charging the full cost, the Commissioner of Internal Revenue sought and received an exception from the OMB to charge all taxpayers a user fee of $300, and low-income taxpayers and taxpayers seeking offers in compromise based on doubt as to liability a user fee of $0. These fee amounts are substantially less than the full cost to the IRS of providing this service. The Treasury Department and the IRS have now determined that the user fee should only be increased to $205. The further lowering of the user fee from $300 to $205 and the exceptions to the fee strike a balance between the goal of recovering costs and the concerns identified in the factors in the IRM regarding the impact of the offer in compromise program.

The second comment's seventh main concern was that if the IRS charges a user fee for processing an offer in compromise, it should minimize the burden for taxpayers. The comment suggested this be done by collecting the user fee from the amount paid on the offer in compromise, such as is done with the collection of the installment agreement user fee.

As discussed earlier, the IRS already collects the offer in compromise user fee in a taxpayer-friendly manner in that the taxpayer's RCP is reduced by the amount of the user fee and the user fee is generally directly offset against the taxpayer's outstanding tax liability. The taxpayer thus receives a double benefit of the user fee amount.

The third comment in response to the notice of proposed rulemaking acknowledged and agreed with the IRS's findings regarding costs per offer and the need to raise the user fee to $300 based on those findings. However, the third comment had two main concerns and suggestions. The comment's first main concern was regarding taxpayers who fall outside the parameters of the low-income threshold of 250 percent of the poverty guidelines, as established and updated annually by the Department of Health and Human Services (HHS). According to the comment, taxpayers whose income falls between 250 percent and 400 percent of the HHS poverty guidelines will be most negatively affected by the user fee increase. The comment stated that taxpayers between 250 percent and 400 percent of the HHS poverty guidelines face similar hardships as those whose incomes fall at or below 250 percent of the HHS poverty guidelines. The comment suggested that the IRS maintain the current $186 user fee for taxpayers whose income falls between 250 percent and 400 percent of the HHS poverty guidelines, noting that such taxpayers qualify for premium tax credits on the Health Insurance Marketplace.

Requesting an exception to the full cost requirement of the OMB Circular is within the discretion of the agency head and must be approved by the OMB. The Commissioner of Internal Revenue requested and the OMB approved excepting from the user fee taxpayers whose income falls at or below the dollar criteria established by the poverty guidelines as established and updated annually by HHS. The regulations maintain this exception as a floor. As a policy decision, the IRS has not charged the offer in compromise user fee if the taxpayer's income falls at or below 250 percent of the HHS poverty guidelines. This policy balances the need to recover more of the costs with the goal of encouraging offers in compromise. Creating an additional exception for taxpayers whose income falls between 250 percent and 400 percent of the HHS poverty guidelines would not properly address the need to recover more of the costs for processing offers in compromise.

The comment's second main concern was regarding taxpayers whose RCP is less than the user fee. The comment explained that the RCP equals the total of the future income potential plus the equity in all assets and that future income is excess income over allowable expenses times a multiplier. The comment suggested waiving the user fee in its entirety for taxpayers whose RCP is less than the user fee. The comment then set out the following example, based on a real case, and on which the two speakers elaborated at the public hearing: A taxpayer with an RCP of $9 submitted an offer in compromise and checked the low-income taxpayer certification box. The taxpayer's income stemmed from a seasonal job and monthly disability payments from the Department of Veterans Affairs, as exigent circumstances prevented him from maintaining a steady job. When the offer was submitted, the taxpayer's income was higher than in previous months when he was not working the seasonal job, but the taxpayer's annual average income fell below 250 percent of the HHS poverty guidelines. The taxpayer's offer was accepted for processing but the IRS required the payment of the user fee. After obtaining outside assistance, the taxpayer was able to demonstrate that the taxpayer qualified for the low-income exception and the offer was accepted without requiring the payment of a user fee.

Pursuant to the written procedures in IRM 5.8.4.7, the IRS should determine whether the taxpayer qualifies for the low-income exception to the user fee by reviewing the household income at the time the offer was submitted as compared to the household income at the time the offer is processed and using the lower of the two. If the taxpayer's household income was below 250 percent of the HHS poverty guidelines when the offer was processed, then the IRS should not have required a user fee. To the extent the taxpayer had difficulty demonstrating to the IRS offer examiner that the taxpayer qualified for low-income status, that difficulty is independent of the amount of the user fee. If the taxpayer had not requested low-income taxpayer status and paid the user fee at the time of submission, the IRS would have reduced the taxpayer's RCP by the amount of the user fee paid because those funds are no longer part of the taxpayer's assets. Taxpayers may request a refund of the user fee pursuant to § 300.3(b)(2) in two situations: (1) If the offer is accepted to promote effective tax administration pursuant to § 301.7122-1(b)(3), and (2) if the offer is accepted based on doubt as to collectibility and the IRS determines that collecting an amount greater than the amount offered would create economic hardship within the meaning of § 301.6343-1. This current system balances the need to collect a fee with the need to accommodate taxpayers who may have exigent circumstances.

The fourth comment stated that the increased user fee is too onerous and will result in the IRS collecting less on past due liabilities than it could otherwise collect. According to the comment, recent statistics show that 47 percent of Americans cannot come up with $400 to cover an unexpected emergency. The comment, however, does not cite to the source of these statistics. The comment states that taxpayers who cannot afford the increased user fee will enter into currently not collectible (CNC) status. The comment states then that the increased user fee will result in the IRS collecting less revenue.

Offers in compromise are a collection alternative for taxpayers who are unable to pay their tax liability in full. As discussed above, the IRS has options for those taxpayers who, in addition to being unable to pay their tax liability in full, would struggle to pay the user fee for the offer in compromise. For low-income taxpayers, the IRS waives the user fee in its entirety. For taxpayers who do not qualify as low-income taxpayers but for whom the user fee would cause them an economic hardship, the IRS refunds the user fee. The comment states that CNC status is available for certain taxpayers. However, it is not the case that the availability of CNC status as an option to some taxpayers will necessarily cause the IRS to collect less revenue. The comment does not take into account that taxpayers who are eligible for CNC status may also be eligible for a refund of the user fee or waiver of the fee because of their income level.

As noted previously, in response to the comments and testimony received, the final regulations provide a more limited increase of the user fee and an expanded definition of low-income taxpayer to help reduce the burden on taxpayers.

The Treasury Department and the IRS have now determined that the user fee should only be increased to $205, a 10 percent increase. Additionally, pursuant to the Taxpayer First Act, the final regulations incorporate the definition of low-income taxpayer provided in section 7122(c)(3), thereby providing an additional means of receiving the low-income taxpayer waiver. Section 7122(c)(3) excepts low-income taxpayers from any user fee otherwise required in connection with the submission of an offer in compromise and defines a low-income taxpayer as an individual with an adjusted gross income, as determined for the most recent taxable year for which such information is available, which does not exceed 250 percent of the applicable poverty guidelines. Thus, the final regulations provide that low-income taxpayers, as defined in section 7122(c)(3), are also exempt from payment of the offer in compromise user fee with respect to offers submitted after July 1, 2019.

Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. These regulations do not have a significant effect on the economy as the fees paid to request an offer in compromise are generally applied to offset existing tax obligations so no amounts are kept in excess of amounts owed to the IRS. In addition, the IRS estimates that approximately 31 percent of the offer in compromise cases closed annually are from low-income taxpayers and taxpayers making offers in compromise based on doubt as to liability. As taxpayers making these offers in compromise are not charged a fee, there is no effect on the economy. Therefore, a regulatory impact assessment is not required.

It is hereby certified that these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based on the information that follows. There is no significant economic impact from these regulations on any small entity required to pay a fee prescribed by these regulations to request an offer in compromise because generally the fee is applied to offset an existing tax obligation that the small entity owes the IRS. As such, the fee does not represent a payment of any amount greater than what a small entity already owes the IRS. In addition, as small entities making offers in compromise based on doubt as to liability will continue not to be charged a fee, these small entities will not be impacted economically by these regulations. Further, the economic impact of these regulations will not be on a substantial number of small entities because few small entities submit offers in compromise. In FY 2017, the IRS received a total of 52,016 processable offers, of which 3,851, or 7.4 percent, were from taxpayers with a business liability. In FY 2018, the IRS received 49,901 processable offers, of which 3,325 or 6.6 percent were from taxpayers with a business liability. Taxpayers with a business liability include all businesses, thus the number of businesses that could be classified as small businesses would be even less significant than the 7.4 percent and 6.6 percent requesting offers in compromise in FY 2017 and FY 2018, respectively. Accordingly, this rule will not have a significant economic impact on a substantial number of small entities.

Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding these final regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. No comments were received.

IRS Revenue Procedures, Revenue Rulings notices, and other guidance cited in this document are published in the Internal Revenue Bulletin (or Cumulative Bulletin) and are available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at http://www.irs.gov.

The principal author of these regulations is Jordan L. Thomas of the Office of the Associate Chief Counsel (Procedure and Administration). Other personnel from the Treasury Department and the IRS participated in their development.

Accordingly, 26 CFR part 300 is amended as follows:

Electronic Availability

This document and additional information concerning OFAC are available on OFAC's website ( www.treasury.gov/ofac ).

On March 8, 2015, the President, invoking the authority of, inter alia, the International Emergency Economic Powers Act (50 U.S.C. 1701-1706), issued Executive Order (E.O.) 13692 (“Blocking Property and Suspending Entry of Certain Persons Contributing to the Situation in Venezuela”) (80 FR 12747, March 11, 2015) (E.O. 13692). In E.O. 13692, the President found that the situation in Venezuela, including the Government of Venezuela's erosion of human rights guarantees, persecution of political opponents, curtailment of press freedoms, use of violence and human rights violations and abuses in response to antigovernment protests, and arbitrary arrest and detention of antigovernment protestors, as well as the exacerbating presence of significant public corruption, constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States, and declared a national emergency to deal with that threat.

The President has issued six additional Executive orders pursuant to the national emergency declared in E.O. 13692: E.O. 13808 of August 24, 2017 (“Imposing Additional Sanctions With Respect to the Situation in Venezuela”) (82 FR 41155, August 29, 2017); E.O. 13827 of March 19, 2018 (“Taking Additional Steps to Address the Situation in Venezuela”) (83 FR 12469, March 21, 2018); E.O. 13835 of May 21, 2018 (“Prohibiting Certain Additional Transactions With Respect to Venezuela”) (83 FR 24001, May 24, 2018) (E.O. 13835); E.O. 13850 of November 1, 2018 (“Blocking Property of Additional Persons Contributing to the Situation in Venezuela”) (83 FR 55243, November 2, 2018), E.O. 13857 of January 25, 2019 (“Taking Additional Steps To Address the National Emergency With Respect to Venezuela”) (84 FR 509, January 30, 2019), and E.O. 13884 of August 5, 2019 (“Blocking Property of the Government of Venezuela”) (84 FR 38843, August 7, 2019).

OFAC, in consultation with the Department of State, issued Venezuela-related General License (GL) 5 on July 19, 2018, pursuant to E.O. 13835, to authorize certain transactions related to the Petróleos de Venezuela, S.A. 2020 8.5 Percent Bond that were prohibited by Subsection 1(a)(iii) of E.O. 13835. On October 24, 2019, OFAC issued GL 5A, which replaced and superseded GL 5. GL 5A delayed until January 22, 2020 the effectiveness of the authorization that was previously contained in GL 5. On January 17, 2020, OFAC issued GL 5B, which replaced and superseded GL 5A. GL 5B further delayed until April 22, 2020 the effectiveness of the authorization that was previously contained in GL 5. As a result, no transactions may be conducted pursuant to GL 5B until April 22, 2020. The text of GL 5, GL 5A, and GL 5B is provided below.

(a) Except as provided in paragraph (b) of this general license, all transactions related to, the provision of financing for, and other dealings in the Petroleos de Venezuela SA 2020 8.5 Percent Bond that would be prohibited by Subsection l(a)(iii) of Executive Order 13835 of May 21, 2018 (“Prohibiting Certain Additional Transactions With Respect to Venezuela”) (E.O. 13835) are authorized.

(b) This general license does not authorize any transaction that is otherwise prohibited by E.O. 13835, Executive Order 13827 of March 19, 2018, Executive Order 13808 of August 24, 2017, Executive Order 13692 of March 8, 2015, or any part of 31 CFR chapter V.

(a) Except as provided in paragraph (b) of this general license, on or after January 22, 2020, all transactions related to, the provision of financing for, and other dealings in the Petróleos de Venezuela, S.A. 2020 8.5 Percent Bond that would be prohibited by Subsection l(a)(iii) of Executive Order (E.O.) 13835, as amended by E.O. 13857 of January 25, 2019, are authorized.

(b) This general license does not authorize any transaction that is otherwise prohibited by E.O. 13884 of August 5, 2019, or E.O. 13850 of November 1, 2018, E.O. 13835, E.O. 13827 of March 19, 2018, E.O. 13808 of August 24, 2017, or E.O. 13692 of March 8, 2015, each as amended by E.O. 13857, or any part of 31 CFR chapter V.

(c) Effective October 24, 2019, General License No. 5, dated July 19, 2018, is replaced and superseded in its entirety by this General License No. 5A.

(a) Except as provided in paragraph (b) of this general license, on or after April 22, 2020, all transactions related to, the provision of financing for, and other dealings in the Petróleos de Venezuela, S.A. 2020 8.5 Percent Bond that would be prohibited by Subsection l(a)(iii) of Executive Order (E.O.) 13835, as amended by E.O. 13857 of January 25, 2019, are authorized.

(b) This general license does not authorize any transaction that is otherwise prohibited by E.O. 13884 of August 5, 2019, or E.O. 13850 of November 1, 2018, E.O. 13835, E.O. 13827 of March 19, 2018, E.O. 13808 of August 24, 2017, or E.O. 13692 of March 8, 2015, each as amended by E.O. 13857, or any part of 31 CFR chapter V.

(c) Effective January 17, 2020, General License No. 5A, dated October 24, 2019, is replaced and superseded in its entirety by this General License No. 5B.

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port San Francisco DHS Department of Homeland Security §  Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking with respect to this rule because it is impracticable. The Coast Guard did not receive final details for this event until March 4, 2020. There was insufficient time to undergo the full rulemaking process, including providing a reasonable comment period and considering those comments, because the Coast Guard must establish this temporary safety zone by March 15, 2020.

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 . Delaying the effective date of this rule would be contrary to public interest because immediate action is necessary to respond to the potential safety hazards associated with the munitions transfer near Alameda, CA.

The Coast Guard is issuing this rule under authority 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port San Francisco has determined that potential hazards associated with the munitions transfer on March 15, 2020, will be a safety concern for anyone within 250-foot radius of the pier. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters around the munitions transfer site during the munitions transfer.

This rule establishes a temporary safety zone from 8 a.m. to 3:30 p.m. on March 15, 2020. At 8 a.m. the safety zone will encompass the navigable waters, from surface to bottom, within 250 feet of the munitions transfer pier located on the southwest side of Coast Guard Island near the South Channel of the Alameda Estuary. The safety zone will terminate at 3:30 p.m. on March 15, 2020.

This regulation is needed to keep persons and vessels away from the immediate vicinity of the munitions transfer location to ensure the safety of people and transiting vessels. Except for persons or vessels authorized by the COTP or the COTP's designated representative, no person or vessel may enter or remain in the restricted area. A “designated representative” means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel or a Federal, State, or local officer designated by or assisting the COTP in the enforcement of the safety zone. The COTP or the COTP's designated representative will notify the maritime community of periods during which this zone will be enforced using information broadcasts.

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

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

This regulatory action determination is based on the limited duration and narrowly tailored geographic area of the safety zone. This safety zone impacts a 250-foot-wide portion of the South Channel of the Alameda Estuary along the southwest side of Coast Guard Island in Alameda, CA for 7 hours and 30 minutes. The vessels desiring to transit through or around the temporary safety zone may do so upon express permission from the COTP or the COTP's designated representative.

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 temporary 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 contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and U.S. Coast Guard Environmental Planning Policy, 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 six hours and thirty minutes that prevents entry to a 250-foot-wide area of the Alameda Estuary in Alameda, CA. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of Department of Homeland Security Directive 023-01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The Coast Guard received information regarding the need for a safety zone on February 6, 2020. Insufficient time remains to publish an NPRM and to receive public comments, as the event will occur before the rulemaking process would be completed. Because of the potential safety hazards associated with the race, the regulations is necessary to provide for the safety of race participants, spectators, and other vessels navigating the surrounding waterways. For those reasons, it would be impracticable to publish an NPRM.

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 reasons discussed above, the Coast Guard finds that good cause exists.

The Coast Guard is issuing this rule under the authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port St. Petersburg has determined that potential hazards associated with the race, will be a safety concern for race participants, spectators, and vessels. This rule is needed to ensure the safety of life for vessels and persons within the navigable waters of the safety zone during the Firestone Grand Prix of St. Petersburg, Florida.

This rule establishes a safety zone from 6:00 a.m. on March 13, 2020 through 10:00 p.m. on March 15, 2020. The safety zone will cover all navigable waters within a specified area of Tampa Bay, St. Petersburg. The duration of the zone is intended to ensure the safety of the public and designated navigable waters during the race event. No vessel or person will be permitted to enter, transit through, anchor in, or remain within the safety zone without obtaining permission from the Captain of the Port St. Petersburg or a designated representative.

Persons and vessels may request authorization to enter, transit through, anchor in, or remain within the regulated area by contacting the Captain of the Port St. Petersburg by telephone at (727) 824-7506, or a designated representative via VHF radio on channel 16. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the Captain of the Port St. Petersburg or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port St. Petersburg or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and/or on-scene designated 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, location, duration and available exceptions to the enforcement of the safety zone. The safety zone will be enforced for a limited period of time over the course of three days and is thus limited in duration. The safety zone is limited to only those areas in which race events will be occurring for the Firestone Grand Prix of St. Petersburg, Florida race event and is thus limited in size. Although persons and vessels are prohibited to enter, transit through, anchor in, or remain within the regulated area without authorization from the Captain of the Port St. Petersburg or a designated representative, they may operate in the surrounding area during the enforcement period. The rule allows for vessels to seek permission to enter the safety zone. The Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and/or Broadcast Notice to Mariners.

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 would 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 contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

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

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

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

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 would 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 only 5 hours that will prohibit entry within 700 feet wide by 2600 feet in length on the waters of the Beaufort River in Beaufort, SC. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

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

On September 27, 2018, the Massachusetts Department of Environmental Protection (DEP) submitted a formal revision to its State Implementation Plan (SIP). The SIP revision contains the Commonwealth's “Certification of Adequacy of the Massachusetts State Implementation Plan Regarding Clean Air Act Sections 110(a)(1) and (2) for the 2015 Ozone National Ambient Air Quality Standards.” When EPA promulgates a new or revised NAAQS, states must submit these certifications (or infrastructure SIPS) to ensure that their SIP provides for implementation, maintenance, and enforcement of the respective NAAQS.

EPA previously approved Massachusetts' infrastructure SIP for the 2008 ozone standard (as part of a notice approving five total NAAQS infrastructure SIPS) on December 21, 2016 (81 FR 93627). The September 27, 2018 submission contains virtually the same information as the previous SIP approved version, with a few minor updates and date changes. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Whenever EPA promulgates a new or revised NAAQS, CAA section 110(a)(1) requires states to make SIP submissions to provide for the implementation, maintenance, and enforcement of the NAAQS. This particular type of SIP submission is commonly referred to as an “infrastructure SIP.” These submissions must meet the various requirements of CAA section 110(a)(2), as applicable. Due to ambiguity in some of the language of CAA section 110(a)(2), EPA believes that it is appropriate to interpret these provisions in the specific context of acting on infrastructure SIP submissions. EPA has previously provided comprehensive guidance on the application of these provisions through a guidance document for infrastructure SIP submissions and through regional actions on infrastructure submissions. 1 Unless otherwise noted below, we are following that existing approach in acting on this submission. In addition, in the context of acting on such infrastructure submissions, EPA evaluates the submitting state's SIP for compliance with statutory and regulatory requirements, not for the state's implementation of its SIP. 2 The EPA has other authority to address any issues concerning a state's implementation of the rules, regulations, consent orders, etc. that comprise its SIP.

EPA highlighted the statutory requirement to submit infrastructure SIPs within 3 years of promulgation of a new NAAQS in an October 2, 2007, guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM 2.5 National Ambient Air Quality Standards” (2007 guidance). EPA has issued additional guidance documents and memoranda, including a September 13, 2013, guidance document entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)” (2013 guidance).

The following review evaluates the state's submissions regarding CAA section 110(a)(2) requirements and relevant EPA guidance.

This section of the Act requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance, and other related matters. However, EPA has long interpreted emission limits and control measures for attaining the standards as being due when nonattainment planning requirements are due. 3 In the context of an infrastructure SIP, EPA is not evaluating the existing SIP provisions for this purpose. Instead, EPA is only evaluating whether the state's SIP has basic structural provisions for the implementation of the NAAQS. Massachusetts General Law (M.G.L.) c. 21A, section 8, Executive Office of Energy and Environmental Affairs Organization of Departments; powers, duties and functions, creates and sets forth the powers and duties of the Department of Environmental Protection (MassDEP) within the Executive Office of Energy and Environmental Affairs. In addition, M.G.L. c. 111, sections 142A through 142N, which, collectively, are referred to as the Massachusetts Pollution Control Laws, provide MassDEP with broad authority to prevent pollution or contamination of the atmosphere and to prescribe and establish appropriate regulations. Furthermore, M.G.L. c. 21A, section 18, Permit applications and compliance assurance fees; timeline action schedules; regulations, authorizes MassDEP to establish fees applicable to the regulatory programs it administers.

MassDEP has adopted numerous regulations within the Code of Massachusetts Regulations (CMR) in furtherance of the objectives set out by these statutes, including 310 CMR 4.00, Timely Action & Fee Schedule Regulations, 310 CMR 6.00, Ambient Air Quality Standards for the Commonwealth of Massachusetts, and 310 CMR 7.00, Air Pollution Control Regulations. For example, many SIP-approved State air quality regulations within 310 CMR 7.00 provide enforceable emission limitations and other control measures, means or techniques, schedules for compliance, and other related matters that satisfy the requirements of the CAA section 110(a)(2)(A) for the 2015 ozone NAAQS, including but not limited to 7.18, Volatile and Halogenated Organic Compounds, 7.19, Reasonably Available Control Technology (RACT) for Sources of NOx, and 7.29, Emission Standards for Power Plants. EPA finds that MassDEP meets the infrastructure SIP requirements of section 110(a)(2)(A) with respect to the 2015 ozone NAAQS.

This section requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to monitor, compile, and analyze ambient air quality data, and make these data available to EPA upon request. Each year, states submit annual air monitoring network plans to EPA for review and approval. EPA's review of these annual monitoring plans includes our evaluation of whether the State: (i) Monitors air quality at appropriate locations throughout the State using EPA-approved Federal Reference Methods or Federal Equivalent Method monitors; (ii) submits data to EPA's Air Quality System (AQS) in a timely manner; and (iii) provides EPA Regional Offices with prior notification of any planned changes to monitoring sites or the network plan.” Under MGL c. 111, sections 142B to 142D, MassDEP operates an air monitoring network. EPA approved the state's most recent Annual Air Monitoring Network Plan on November 25, 2019. In addition to having an adequate air monitoring network, MassDEP populates AQS with air quality monitoring data in a timely manner and provides EPA with prior notification when considering a change to its monitoring network or plan. EPA finds that MassDEP has met the infrastructure SIP requirements of section 110(a)(2)(B) with respect to the 2015 ozone NAAQS.

States are required to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources to meet NSR requirements under PSD and nonattainment new source review (NNSR) programs. Part C of the CAA (sections 160-169B) addresses PSD, while part D of the CAA (sections 171-193) addresses NNSR requirements. The evaluation of each state's submission addressing the infrastructure SIP requirements of section 110(a)(2)(C) covers the following: (i) Enforcement of SIP measures; (ii) PSD program for major sources and major modifications; and, (iii) permitting program for minor sources and minor modifications.

MassDEP staffs and implements an enforcement program pursuant to authorities provided within the following laws: M.G.L. c. 111, section 2C, Pollution violations; orders of department of environmental protection, which authorizes MassDEP to issue orders enforcing pollution control regulations generally; M.G.L. c. 111, sections 142A through 142O, Massachusetts Air Pollution Control Laws, which, among other things, more specifically authorize MassDEP to adopt regulations to control air pollution, enforce such regulations, and issue penalties for non-compliance; and, M.G.L. c. 21A, section 16, Civil Administrative Penalties, which provides additional authorizations for MassDEP to assess penalties for failure to comply with the Commonwealth's air pollution control laws and regulations. Moreover, SIP-approved regulations, such as 310 CMR 7.02(12)(e) and (f), provide a program for the enforcement of SIP measures. Accordingly, EPA finds that Massachusetts has met this requirement of section 110(a)(2)(C) with respect to the 2015 ozone NAAQS.

Sub-element 2 of section 110(a)(2)(C) requires that states provide for the regulation of modification and construction of any stationary source as necessary to assure that the NAAQS are achieved, including a program to meet PSD and NNSR requirements. PSD applies to new major sources or modifications made to major sources for pollutants where the area in which the source is located is in attainment of, or unclassifiable regarding, the relevant NAAQS, and NNSR requires similar actions in nonattainment areas.

As MassDEP recognizes in the submittal, Massachusetts does not have an approved state PSD program and has long been subject to a Federal Implementation Plan (FIP). The Commonwealth implements and enforces the federal PSD program through a delegation agreement. See 76 FR 31241 (May 31, 2011). Accordingly, EPA is issuing a finding of failure to submit with respect to the PSD-related requirements of this sub-element for the 2015 ozone NAAQS. This finding will not trigger any additional FIP obligation by the EPA, because the deficiency is addressed by the FIP already in place. Nor is the Commonwealth subject to mandatory sanctions solely as a result of this finding because the SIP submittal deficiencies are neither with respect to a sub-element that is required under part D nor in response to a SIP call under section 110(k)(5) of the Act.

To address the pre-construction regulation of the modification and construction of minor stationary sources and minor modifications of major stationary sources, an infrastructure SIP submission should identify the existing EPA-approved SIP provisions and/or include new provisions that govern the minor source pre-construction program that regulates emissions of the relevant NAAQS pollutants. EPA's most recent approval of the Commonwealth's minor NSR program occurred on April 5, 1995. 60 FR 17226. Since this date, Massachusetts and EPA have relied on the existing minor NSR program to ensure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the 2015 ozone NAAQS.

In summary, EPA finds that Massachusetts meets the enforcement-related aspects of Section 110(a)(2)(C) discussed above within sub-element 1, and the preconstruction permitting requirements for minor sources discussed in sub-element 3, for the 2015 ozone NAAQS. As to preconstruction PSD permitting of major sources and major modifications, EPA finds that the Commonwealth has failed to make the required submission.

This section contains a comprehensive set of air quality management elements pertaining to the transport of air pollution with which States must comply. It covers the following five topics, categorized as sub-elements: Sub-element 1, Significant contribution to nonattainment, and interference with maintenance of a NAAQS; Sub-element 2, PSD; Sub-element 3, Visibility protection; Sub-element 4, Interstate pollution abatement; and Sub-element 5, International pollution abatement. Sub-elements 1 through 3 above are found under section 110(a)(2)(D)(i) of the Act, and these items are further categorized into the four prongs discussed below, two of which are found within sub-element 1. Sub-elements 4 and 5 are found under section 110(a)(2)(D)(ii) of the Act and include provisions insuring compliance with sections 115 and 126 of the Act relating to interstate and international pollution abatement.

Section 110(a)(2)(D)(i)(I) of the CAA requires a SIP to prohibit any emissions activity in the State that will contribute significantly to nonattainment or interfere with maintenance of the NAAQS in any downwind State. EPA commonly refers to these requirements as prong 1 (significant contribution to nonattainment) and prong 2 (interference with maintenance), or jointly as the “Good Neighbor” or “transport” provisions of the CAA. EPA has previously approved Massachusetts' Good Neighbor SIP for the 2015 ozone NAAQS. 4 85 FR 5772 (January 31, 2020). Therefore, Massachusetts has already met this requirement for the 2015 ozone NAAQS.

To prevent significant deterioration of air quality, this sub-element requires SIPs to include provisions that prohibit any source or other type of emissions activity in one State from interfering with measures that are required in any other State's SIP under Part C of the CAA. One way for a State to meet this requirement, specifically with respect to in-State sources and pollutants that are subject to PSD permitting, is through a comprehensive PSD permitting program that applies to all regulated NSR pollutants and that satisfies the requirements of EPA's PSD implementation rules. For in-State sources not subject to PSD, this requirement can be satisfied through a fully-approved nonattainment new source review (NNSR) program with respect to any previous NAAQS.

As discussed under element C above and as noted in the submittal, Massachusetts has long been subject to a PSD FIP and has implemented and enforced the federal PSD program through a delegation agreement with EPA. Accordingly, EPA makes a finding of failure to submit with respect to the PSD requirement of this sub-element for the 2015 ozone NAAQS. This finding does not trigger any sanctions or additional FIP obligation for the same reasons discussed under element C above.

Under prong 3 of 110(a)(2)(D)(i)(II), EPA also reviews the potential for in-State sources not subject to PSD to interfere with PSD in an attainment or unclassifiable area of another State. EPA generally considers a fully approved NNSR program adequate for purposes of meeting this requirement of prong 3 with respect to in-state sources and pollutants not subject to PSD. See 2013 guidance. EPA last approved the Commonwealth's NNSR program on May 29, 2019. 84 FR 24719. Accordingly, we approve Massachusetts' submittal for the 2015 ozone NAAQS for the NNSR aspect of prong 3.

Regarding the applicable requirements for visibility protection of section 110(a)(2)(D)(i)(II), States are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). The 2013 guidance explains that these requirements can be satisfied by an approved SIP addressing reasonably attributable visibility impairment, if required, or an approved SIP addressing regional haze. A fully approved regional haze SIP meeting the requirements of 40 CFR 51.308 will ensure that emissions from sources under an air agency's jurisdiction are not interfering with measures required to be included in other air agencies' plans to protect visibility. On September 19, 2013, EPA approved Massachusetts' Regional Haze SIP as meeting the requirements of 40 CFR 51.308. See 78 FR 57487. Accordingly, EPA finds that Massachusetts meets the visibility protection requirements of 110(a)(2)(D)(i)(II) for the 2015 ozone NAAQS.

This sub-element requires that each SIP contain provisions requiring compliance with requirements of section 126 relating to interstate pollution abatement. Section 126(a) requires new or modified sources to notify neighboring States of potential impacts from the source. The statute does not specify the method by which the source should provide the notification. States with SIP-approved PSD programs must have a provision requiring such notification by new or modified sources.

As mentioned elsewhere in this document, Massachusetts does not have a SIP-approved PSD program and is currently subject to a PSD FIP, which includes a requirement to notify any State whose lands may be affected by emissions from the Massachusetts PSD source. See 40 CFR 52.21(q), 124.10(c)(1)(vii); see also id. section 52.1165. While we find that the Commonwealth failed to make a submittal for the 2015 ozone NAAQS for section 110(a)(2)(D)(ii) with respect to the PSD-related notice of interstate pollution, such finding does not trigger any additional FIP obligation by the EPA under section 110(c)(1), because the federal PSD rules address the notification issue. Nor does the finding trigger any sanctions. Finally, Massachusetts has no obligations under any other provision of section 126.

This sub-element also requires each SIP to contain provisions requiring compliance with the applicable requirements of section 115 relating to international pollution abatement. Section 115 authorizes the Administrator to require a state to revise its SIP to alleviate international transport into another country where the Administrator has made a finding with respect to emissions of the particular NAAQS pollutant and its precursors, if applicable. There are no final findings under section 115 against Massachusetts for the 2015 ozone NAAQS. Therefore, EPA finds that Massachusetts meets the applicable infrastructure SIP requirements of section 110(a)(2)(D)(ii) related to section 115 of the CAA (international pollution abatement) for the 2015 ozone NAAQS.

Section 110(a)(2)(E)(i) requires each SIP to provide assurances that the State will have adequate personnel, funding, and legal authority under state law to carry out its SIP, and related issues. Additionally, Section 110(a)(2)(E)(ii) requires each state to comply with the requirements with respect to state boards under section 128. Finally, section 110(a)(2)(E)(iii) requires that, where a state relies upon local or regional governments or agencies for the implementation of its SIP provisions, the state retain responsibility for ensuring adequate implementation of SIP obligations with respect to relevant NAAQS. This last sub-element, however, is not applicable to this action, because Massachusetts does not rely upon local or regional governments or agencies for the implementation of its SIP provisions.

Massachusetts, through its infrastructure SIP submittals, has documented that its air agency has the requisite authority and resources to carry out its SIP obligations. Massachusetts General Laws c. 111, sections 142A to 142N, provide MassDEP with the authority to carry out the state's implementation plan. The Massachusetts SIP, as originally submitted in 1971 and subsequently amended, provides descriptions of the staffing and funding necessary to carry out the plan. In the submittals, MassDEP provides assurances that it has adequate personnel and funding to carry out the SIP during the five years following infrastructure SIP submission and in future years. Additionally, the Commonwealth receives CAA section 103 and 105 grant funds through Performance Partnership agreements and provides state matching funds, which together enable Massachusetts to carry out its SIP requirements. EPA finds that Massachusetts meets the infrastructure SIP requirements of section 110(a)(2)(E)(i) for the 2015 ozone NAAQS.

Section 110(a)(2)(E) also requires each SIP to contain provisions that comply with the state board requirements of section 128(a) of the CAA. That provision contains two explicit requirements: (1) That any board or body which approves permits or enforcement orders under this chapter shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits and enforcement orders under this chapter, and (2) that any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.

Massachusetts does not have a state board that approves permits or enforcement orders under the CAA. Instead, permits and enforcement orders are approved by the Commissioner of MassDEP. Thus, Massachusetts is not subject to the requirements of paragraph (a)(1) of section 128. As to the conflict of interest provisions of section 128(a)(2), Massachusetts has cited to M.G.L. c. 268A of the Commonwealth's Conflict of Interest law in its infrastructure SIP submittal for the 2015 ozone NAAQS. EPA previously approved M.G.L. c. 268A, sections 6 and 6A, into the SIP in satisfaction of this infrastructure SIP requirement. 81 FR 93627 (December 21, 2016). Pursuant to these state provisions, state employees in Massachusetts, including the head of an executive agency with authority to approve air permits or enforcement orders, are required to disclose potential conflicts of interest to, among others, the state ethics commission. EPA finds that the Massachusetts SIP satisfies the requirements of section 110(a)(2)(E)(ii) of the Clean Air Act for the 2015 ozone NAAQS.

States must establish a system to monitor emissions from stationary sources and submit periodic emissions reports. Each plan shall also require the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources. The state plan shall also require periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and correlation of such reports by each state agency with any emission limitations or standards established pursuant to this chapter. Lastly, the reports shall be available at reasonable times for public inspection.

Pursuant to M.G.L. c. 111, sections 142A to 142D, MassDEP has the necessary authority to maintain and operate air monitoring stations and coordinates with EPA in determining the types and locations of ambient air monitors across the state. The Commonwealth uses this authority to require the installation, maintenance, and replacement of emissions monitoring equipment by, and to collect information on air emissions from, sources in the state. Additionally, Massachusetts statutes and regulations provide that emissions data shall be available for public inspection. See, e.g., M.G.L. c. 21I, section 20(K), M.G.L. c. 111, section 142B; 310 CMR section 3.33(5), 7.12(4)(b); 7.14(1). The following SIP-approved regulations enable the accomplishment of the Commonwealth's emissions recording, reporting, and correlating objectives:

1. 310 CMR 7.12, Source Registration.

2. 310 CMR 7.13, Stack Testing.

3. 310 CMR 7.14, Monitoring Devices and Reports.

EPA recognizes that Massachusetts routinely collects information on air emissions from its industrial sources and makes this information available to the public. EPA therefore finds that the Commonwealth meets the infrastructure SIP requirements of section 110(a)(2)(F) with respect to the 2015 ozone NAAQS.

This section requires that a plan provide for authority analogous to that provided in section 303 of the CAA, and adequate contingency plans to implement such authority. Section 303 of the CAA provides authority to the EPA Administrator to seek a court order to restrain any source from causing or contributing to emissions that present an “imminent and substantial endangerment to public health or welfare, or the environment.” Section 303 further authorizes the Administrator to issue “such orders as may be necessary to protect public health or welfare or the environment” in the event that “it is not practicable to assure prompt protection . . . by commencement of such civil action.”

We find that the Commonwealth's ISIP submittal demonstrates that a combination of state statutes and regulations provide for authority comparable to that in section 303. Massachusetts' submittal cites M.G.L. C. 111, section 2B, Air Pollution Emergencies, which authorizes the Commissioner of the MassDEP to “declare an air pollution emergency” if the Commissioner “determines that the condition or impending condition of the atmosphere in the Commonwealth . . . constitutes a present or reasonably imminent danger to health.” During such an air pollution emergency, the Commissioner is authorized pursuant to section 2B, to “take whatever action is necessary to maintain and protect the public health, including but not limited to . . . prohibiting, restricting and conditioning emissions of dangerous or potentially dangerous air contaminants from whatever source derived . . .” Additionally, sections 2B and 2C authorize the Commissioner to issue emergency orders.

Moreover, M.G.L. c. 21A, section 8 provides that, “[i]n regulating . . . any pollution prevention, control or abatement plan [or] strategy . . . through any . . . departmental action affecting or prohibiting the emission . . . of any hazardous substance to the environment . . . the department may consider the potential effects of such plans [and] strategies . . . on public health and safety and the environment . . . and said department shall act to minimize and prevent damage or threat of damage to the environment.”

These duties are implemented, in part, under MassDEP regulations at 310 CMR 8.00, Prevention and Abatement of Air Pollution Episodes and Air Pollution Incident Emergencies, the most recent revisions to which EPA approved into the SIP on March 4, 2019. 84 FR 7299. These regulations establish levels that would constitute significant harm or imminent and substantial endangerment to health for ambient concentrations of pollutants subject to a NAAQS, consistent with the significant harm levels and procedures for state emergency episode plans established by EPA in 40 CFR part 51.150 and 51.151. Finally, M.G.L. c. 111, section 2B authorizes the state to seek injunctive relief in the superior court for violation of an emergency order issued by the MassDEP Commissioner. While no single Massachusetts statute or regulation mirrors the authorities of CAA section 303, we find that the combination of state statutes and regulations discussed herein provide for comparable authority to immediately bring suit to restrain, and issue orders against, any person causing or contributing to air pollution that presents an imminent and substantial endangerment to public health or welfare, or the environment.

Section 110(a)(2)(G) also requires that, for any NAAQS, States have an approved contingency plan for any Air Quality Control Region (AQCR) within the state that is classified as Priority I, IA, or II. See 40 CFR 51.152(c). Two AQCRs in Massachusetts are classified as Priority I for ozone, with the remaining AQCRs classified as Priority III for ozone. Id. 52.1121. As noted above, EPA approved 310 CMR 8.00 into the SIP to satisfy the contingency plan requirements of CAA section 110(a)(2)(G) for a previous infrastructure SIP submittal for the 2008 ozone NAAQS. 84 FR 7299. This state regulation satisfies the applicable requirements for contingency plans at 40 CFR part 51, subpart H (40 CFR 51.150 through 51.153) ( Prevention of Air Pollution Emergency Episodes ). For the above reasons, EPA finds that Massachusetts meets the infrastructure SIP requirements of CAA section 110(a)(2)(G) for the 2015 ozone NAAQS.

This section requires that a state's SIP provide for revision as may be necessary to take account of changes in the NAAQS or availability of improved methods for attaining the NAAQS and whenever the EPA finds that the SIP is substantially inadequate. Massachusetts General Laws c. 111, section 142D provides in relevant part that, “ From time to time the department shall review the ambient air quality standards and plans for implementation, maintenance and attainment of such standards adopted pursuant to this section and, after public hearings, shall amend such standards and implementation plan so as to minimize the economic cost of such standards and plan for implementation, provided, however, that such standards shall not be less than the minimum federal standards.” This authorizing statute gives MassDEP the power to revise the Massachusetts SIP from time to time as may be necessary to take account of changes in the NAAQS or availability of improved methods for attaining the NAAQS and whenever the EPA finds that the SIP is substantially inadequate. Accordingly, EPA finds that Massachusetts meets the infrastructure SIP requirements of CAA section 110(a)(2)(H) for the 2015 ozone NAAQS.

The CAA requires that each plan or plan revision for an area designated as a nonattainment area meet the applicable requirements of part D of the CAA. Part D relates to nonattainment areas. EPA has determined that section 110(a)(2)(I) is not applicable to the infrastructure SIP process. Instead, EPA takes action on part D attainment plans through separate processes.

Section 110(a)(2)(J) of the CAA requires that each SIP “meet the applicable requirements of section 121 of this title (relating to consultation), section 127 of this title (relating to public notification), and part C of this subchapter (relating to PSD of air quality and visibility protection).” The evaluation of the submission from Massachusetts with respect to these requirements is described below.

Section 121 of the Act requires states to provide a process for consultation with local governments and Federal Land Managers (FLMs) in carrying out NAAQS implementation requirements.

Pursuant to EPA-approved Massachusetts regulations at 310 CMR 7.02(12)(g)(2), MassDEP notifies the public “by advertisement in a newspaper having wide circulation” in the area of the particular facility of the opportunity to comment on certain proposed permitting actions and sends “a copy of the notice of public comment to the applicant, the EPA, and officials and agencies having jurisdiction over the community in which the facility is located, including local air pollution control agencies, chief executives of said community, and any regional land use planning agency.” In addition, Massachusetts Executive Order 145, “Consultation with Cities & Towns on Administrative Mandates,” which EPA approved into the SIP on June 24, 2019, establishes a process for agencies of the Commonwealth to consult with local governments. 84 FR 29380. In its submittal, Massachusetts lists additional authorities and processes on which it relies to provide for consultation with local governments when carrying out requirements of the CAA. MassDEP notes that, with respect to the requirement to consult with FLMs, it relies in part on the FLM consultation requirement contained in the PSD FIP to meet this obligation. As previously mentioned, Massachusetts does not have an approved state PSD program, but rather is subject to a PSD FIP, which, as MassDEP notes, includes a provision requiring consultation with FLMs. See 40 CFR 52.21(p). Consequently, with respect to the 2015 ozone NAAQS, EPA finds that Massachusetts has met the consultation with local governments requirement of this portion of section 110(a)(2)(J) but issues a finding of failure to submit with respect to the FLM consultation requirement for PSD permitting. Because the federal PSD program, which Massachusetts implements and enforces, addresses this FLM consultation requirement, a finding of failure to submit does not result in sanctions or new FIP obligations.

Section 127 of the Act requires states to: Notify the public if NAAQS are exceeded in an area; advise the public of health hazards associated with exceedances; and enhance public awareness of measures that can be taken to prevent exceedances and of ways in which the public can participate in regulatory and other efforts to improve air quality.

Massachusetts regulations specify criteria for air pollution episodes and incidents and provide for notice to the public via news media and other means of communication. See 310 CMR 8.00. The Commonwealth also provides a daily air quality forecast to inform the public about concentrations of fine particles and, during the ozone season, provides similar information for ozone. Real time air quality data for NAAQS pollutants are also available on the MassDEP's website, as are information about health hazards associated with NAAQS pollutants and ways in which the public can participate in regulatory efforts related to air quality. The Commonwealth is also an active partner in EPA's AirNow and EnviroFlash air quality alert programs, which notify the public of air quality levels through EPA's website, alerts, and press releases. In light of the above, we find that Massachusetts meets the infrastructure SIP requirements of this requirement of section 110(a)(2)(J) with respect to the 2015 ozone NAAQS.

Pursuant to Section 110(a)(2)(J), States must also meet applicable requirements of Part C of the Act (relating to PSD). The Commonwealth's PSD program in the context of infrastructure SIPs has already been discussed in the paragraphs addressing sections 110(a)(2)(C), (D)(i)(II), and (D)(ii), and our actions for those sections are consistent with the proposed action for this portion of section 110(a)(2)(J). Specifically, we are making a finding of failure to submit with respect to the PSD sub-element of section 110(a)(2)(J) for the 2015 ozone NAAQS and note that such a finding does not result in any sanctions or new FIP obligations.

With regard to the applicable requirements for visibility protection, states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, we find that there is no new visibility obligation “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. In other words, the visibility protection requirements of section 110(a)(2)(J) are not germane to infrastructure SIP for the 2015 Ozone NAAQS.

Section 110(a)(2)(K) of the Act requires that a SIP provide for the performance of such air-quality modeling as the EPA Administrator may prescribe to predict the effect on ambient air quality of any emissions of any air pollutant for which EPA has established a NAAQS, and the submission, upon request, of data related to such air quality modeling. EPA has published modeling guidelines at 40 CFR part 51, Appendix W, for predicting the effects of emissions of criteria pollutants on ambient air quality. EPA recommends in the 2013 guidance that, to meet section 110(a)(2)(K), a State submit or reference the statutory or regulatory provisions that provide the air agency with the authority to conduct such air quality modeling and to provide such modeling data to EPA upon request.

Massachusetts state law implicitly authorizes MassDEP to perform air quality modeling and provide such modeling data to EPA upon request. See M.G.L. c. 21A, section 2(2), (10), (22); M.G.L. c. 111, sections 142B-142D. In addition, 310 CMR 7.02 authorizes MassDEP to require air dispersion modeling analyses from certain sources and permit applicants. Massachusetts implements and enforces the federal PSD program through a delegation agreement (included in the docket for today's action) that requires MassDEP to follow the applicable procedures in EPA's permitting regulations at 40 CFR 52.21, as amended from time to time. The Commonwealth also collaborates with the Ozone Transport Commission (OTC), the Mid-Atlantic Regional Air Management Association, and EPA to perform large scale urban airshed modeling. EPA finds that Massachusetts meets the infrastructure SIP requirements of section 110(a)(2)(K) for the 2015 ozone NAAQS.

This section requires SIPs to mandate that each major stationary source pay permitting fees to cover the costs of reviewing, approving, implementing, and enforcing a permit. Massachusetts implements and operates the Title V permit program, which EPA approved on September 28, 2001. See 66 FR 49541. To gain approval, Massachusetts demonstrated, among other things, that it collects fees sufficient to cover the costs of reviewing and acting on Title V permit applications and implementing and enforcing the permits. See 61 FR 3827 (February 2, 1996); 40 CFR 70.9. Section 18 of M.G.L. c. 21A authorizes MassDEP to promulgate regulations establishing fees. To collect fees from sources of air emissions, the MassDEP promulgated and implements 310 CMR 4.00, Timely Action Schedule and Fee Provisions. These regulations set permit application and compliance fees for existing major sources and for new and modified major sources. EPA proposes that the Commonwealth meets the infrastructure SIP requirements of section 110(a)(2)(L) for the 2015 ozone NAAQS.

To satisfy element M, states must provide for consultation with, and allow participation by, local political subdivisions affected by the SIP. Pursuant to M.G.L. c. 111, section 142D, MassDEP must hold public hearings prior to revising its SIP. In addition, M.G.L. c. 30A, Massachusetts Administrative Procedures Act, requires MassDEP to provide notice and the opportunity for public comment and hearing prior to adoption of any regulation. Moreover, the Commonwealth's Executive Order No. 145 (discussed earlier in the context of element J) requires state agencies, including MassDEP, to provide notice to the Local Government Advisory Committee to solicit input on the impact of proposed regulations and other administrative actions on local governments. MassDEP's submittal also notes that the agency consults with local political subdivisions though a state “SIP Steering Committee” and conducts stakeholder outreach with local entities as a matter of policy when revising the SIP or adopting air regulations. Therefore, EPA proposes that Massachusetts meets the infrastructure SIP requirements of section 110(a)(2)(M) with respect to the 2015 ozone NAAQS.

EPA is approving most portions of the Massachusetts infrastructure SIP requirements for the 2015 ozone NAAQS. We are also issuing a finding of failure to submit pertaining to the various aspects of infrastructure SIPS relating to the prevention of significant deterioration (PSD). The Commonwealth has long been subject to a Federal Implementation Plan (FIP) regarding PSD, thus the finding of failure to submit will result in no mandatory sanctions or further FIP requirements. This rulemaking also does not include any action on the interstate transport portion of the Commonwealth's submittal. This action is being taken in accordance with the Clean Air Act.

The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective May 12, 2020 without further notice unless the Agency receives relevant adverse comments by April 13, 2020.

If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on May 12, 2020 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 12, 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this issue of the Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

The IPHC has recommended regulations that would govern the Pacific halibut fishery in 2020, pursuant to the Convention between Canada and the United States for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Convention), signed at Ottawa, Ontario, on March 2, 1953, as amended by a Protocol Amending the Convention (signed at Washington, DC, on March 29, 1979).

As provided by the Northern Pacific Halibut Act of 1982 (Halibut Act) at 16 U.S.C. 773b, the Secretary of State, with the concurrence of the Secretary of Commerce, may accept or reject, on behalf of the United States, regulations recommended by the IPHC in accordance with the Convention (Halibut Act, Sections 773-773k). The Secretary of State, with the concurrence of the Secretary of Commerce, accepted the 2020 IPHC regulations as provided by the Halibut Act.

The Halibut Act provides the Secretary of Commerce with the authority and general responsibility to carry out the requirements of the Convention and the Halibut Act. The Regional Fishery Management Councils may develop, and the Secretary of Commerce may implement, regulations governing harvesting privileges among U.S. fishermen in U.S. waters that are in addition to, and not in conflict with, approved IPHC regulations. The NPFMC has exercised this authority in developing halibut management programs for three fisheries that harvest halibut in Alaska: The subsistence, sport, and commercial fisheries. The PFMC has exercised this authority by developing a catch sharing plan governing the allocation of halibut and management of sport fisheries on the U.S. West Coast.

The IPHC apportions catch limits for the Pacific halibut fishery among regulatory areas (Figure 1): Area 2A (Oregon, Washington, and California), Area 2B (British Columbia), Area 2C (Southeast Alaska), Area 3A (Central Gulf of Alaska), Area 3B (Western Gulf of Alaska), and Area 4 (subdivided into 5 areas, 4A through 4E, in the Bering Sea and Aleutian Islands of Western Alaska).

Subsistence and sport halibut fishery regulations for Alaska are codified at 50 CFR part 300. Commercial halibut fisheries off Alaska are subject to the Individual Fishing Quota (IFQ) Program and Community Development Quota (CDQ) Program (50 CFR part 679) regulations, and the area-specific catch sharing plans (CSPs) for Areas 2C, 3A, and Areas 4C, 4D, and 4E.

The NPFMC implemented a CSP among commercial IFQ and CDQ halibut fisheries in IPHC Regulatory Areas 4C, 4D, and 4E (Area 4, Western Alaska) through rulemaking, and the Secretary of Commerce approved the plan on March 20, 1996 (61 FR 11337). The Area 4 CSP regulations were codified at 50 CFR 300.65, and were amended on March 17, 1998 (63 FR 13000). New annual regulations pertaining to the Area 4 CSP also may be implemented through IPHC action, subject to acceptance by the Secretary of State.

The NPFMC recommended and NMFS implemented through rulemaking a CSP for guided sport (charter) and commercial IFQ halibut fisheries in IPHC Regulatory Area 2C and Area 3A on January 13, 2014 (78 FR 75844, December 12, 2013). The Area 2C and 3A CSP regulations are codified at 50 CFR 300.65. The CSP defines an annual process for allocating halibut between the commercial and charter fisheries so that each sector's allocation varies in proportion to halibut abundance, specifies a public process for setting annual management measures, and authorizes limited annual leases of commercial IFQ for use in the charter fishery as guided angler fish (GAF).

The IPHC held its annual meeting in Anchorage, Alaska, February 3-7, 2020, and recommended a number of changes to the previous IPHC regulations (84 FR 9243 March 14, 2019). The Secretary of State accepted the annual management measures, including the following changes to sections of the 2020 IPHC regulations:

Pursuant to regulations at 50 CFR 300.62, the 2020 IPHC annual management measures are published in the Federal Register to provide notice of their immediate regulatory effectiveness and to inform persons subject to the regulations of their restrictions and requirements. Because NMFS publishes the regulations applicable to the entire Convention area, these regulations include some provisions relating to and affecting Canadian fishing and fisheries. NMFS may implement more restrictive regulations for the fishery for halibut or components of it; therefore, anglers are advised to check the current Federal and IPHC regulations prior to fishing.

The IPHC recommended to the governments of Canada and the United States fishery catch limits for 2020 totaling 27,480,000 lb (12,460.18 mt). Overall, the IPHC recommended area-specific catch limits for 2020 that were lower than the catch limits implemented in 2019. The catch limits in most regulatory areas decreased, with exceptions in Areas 2A, which remained the same as 2019, and Areas 2B and 3B, where catch limits were slightly higher relative to the 2019 implemented levels. A description of the process the IPHC used to set these catch limits follows.

In 2019, the IPHC conducted its annual stock assessment using a range of updated data sources as described in detail in the IPHC overview of data sources for the Pacific halibut stock assessment, harvest policy, and related analyses (IPHC-2020-AM096-09 Rev_2; available at www.iphc.int ). To evaluate the Pacific halibut stock, the IPHC used an “ensemble” of four equally weighted models, comprised of two long time-series models, and two short time-series models incorporating data from 1996 to the present. Each time-series length used data series that are divided either by four geographical regions or aggregated into coastwide summaries. These models incorporate data from the 2019 IPHC Fishery Independent Setline Survey (FISS), the 2019 commercial halibut fishery, the most recent NMFS trawl survey, weight-at-age estimates by region, the male/female ratio of the directed commercial recreational fisheries, and age distribution information for bycatch, sport, and sublegal discard removals.

As has been the case since 2012, the results of the ensemble models are integrated and incorporate uncertainty in natural mortality rates, environmental effects on recruitment, and other structural and parameter categories. The data and assessment models used by the IPHC are reviewed by the IPHC's Scientific Review Board comprised of non-IPHC scientists who provide an independent scientific review of the stock assessment data and models and provide recommendations to IPHC staff and to the Commission. The Scientific Review Board did not identify any substantive errors in the data or methods used in the 2020 stock assessment. NMFS believes the IPHC's data and assessments models constitute best available science on the status of the Pacific halibut resource.

The IPHC's data, including the FISS, indicate that the Pacific halibut stock declined continuously from the late 1990s to around 2012, largely as a result of decreasing size at a given age (size-at-age), higher harvest rates in early 2000s, as well as somewhat weaker recruitment strengths than those observed during the 1980s. Results from the 2020 stock assessment incorporate ongoing efforts to expand the FISS throughout the survey range. Among other things, improvements in the setline spatial coverage have helped reduce the uncertainty in the weight per unit effort (WPUE) and number per unit effort (NPUE) indices.

Overall, the biomass of spawning females is estimated to have increased gradually to 2016, then decreased to approximately 194,000,000 lb (87,996.92 mt) at the beginning of 2020. This level is currently estimated to be 32 percent (with a 95% credible interval of 22% to 46%) of unfished levels. This estimate reflects updated calculations recommended during stock assessment external review and review by the Scientific Review Board, as well as developments in the IPHC Management Strategy Evaluation.

The IPHC's interim management procedure strives to maintain the total mortality of halibut across its range from all sources based on a reference level of fishing intensity so that the Spawning Potential Ratio (SPR) is equal to 46 percent. The reference fishing intensity of F46 percent SPR seeks to allow a level of fishing intensity that is expected to result in approximately 46 percent of the spawning stock biomass per recruit compared to an unfished stock ( i.e., no fishing mortality). Lower values indicate higher fishing intensity. The 2020 stock assessment and estimates of fishing intensity were enhanced by newly available data on the male/female sex ratio of commercial fishery landings. Refined and quantified information on the sex ratio affected the treatment of the stock assessment data for the directed commercial fishery in the stock assessment models; it did not change the treatment or sex ratio estimates of mortalities associated with the recreational, subsistence, or non-directed halibut fisheries. Additional information on the status of the halibut resource under these catch limit alternatives is provided in the Analysis (see ADDRESSES ).

The IPHC harvest decision table (Table 4 in: Summary of the Data, Stock Assessment, and Harvest Decision Table for the Pacific Halibut Stock at the End of 2019; IPHC-2020-AM096-09 Rev_2) provides a comparison of the relative risk of a decrease in stock biomass, status, or fishery metrics, for a range of alternative harvest levels for 2020. The harvest decision table employs two metrics of fishing mortality: (1) The Total Constant Exploitation Yield (TCEY), which includes harvests and incidental wastage from directed commercial fisheries, plus mortality estimates from sport, subsistence, personal use, and estimates of non-directed discard mortality of halibut over 26 inches; and, (2) Total Mortality, which includes all the above sources of mortality, plus estimates of non-directed discard mortality of halibut less than 26 inches (U26). Although U26 halibut mortality is factored into the stock assessment and harvest strategy calculations, there is currently no reliable tool for describing the annual distribution of halibut under 26 inches across the entire coastwide area.

For 2020, the IPHC adopted a TCEY totaling 36,600,000 lb (16,601.48 mt) coastwide. This corresponds to a fishing intensity of approximately F42 percent, which is less restrictive than the interim reference level of F46 percent, but 2,010,000 lb (911.72 mt) less than the TCEY adopted in 2019. The IPHC noted this management approach represents a relatively conservative level of harvest that considers the inherent uncertainties in the stock assessment models. The IPHC notes that under a broad range of catch limits, including highly restrictive catch limits, the halibut stock is likely to experience a continued decrease in spawning stock biomass given the best available scientific information. In making its recommendation, the IPHC considered likely stock status, and uncertainties in the status of the stock as well as the significant social and economic impacts of reduced catch limits.

At a 36,600,000 lb TCEY, the IPHC estimates that the spawning stock biomass will decrease over the period from 2021 to 2023 relative to 2020. Specifically, the IPHC estimates that there is a 95 percent probability that the spawning stock biomass will decrease in 2021 relative to 2020, and that there is a 58 percent probability that the decrease in 2021 will be at least 5 percent of the 2020 spawning stock biomass. The factors that the IPHC considered in making their TCEY recommendations are described in the 2020 Annual Meeting Report (IPHC-2020-AM96_R) and the key recommendations are briefly summarized here.

This final rule does not establish the combined commercial and recreational catch limit for Area 2B (British Columbia), which is subject to rulemaking by the Canada and British Columbia governments. However, the IPHC's recommendation for the Area 2B catch limit is directly related to the current and future U.S. catch limits established by this final rule and is therefore discussed herein. The IPHC recommended a 2020 TCEY of 6,830,000 lb (3,098.04 mt) for Area 2B, which equates to 18.7 percent of the total coastwide TCEY. The IPHC made this recommendation after considering recent historic harvests in Area 2B, the distribution of the TCEY in Area 2B as estimated from the FISS under the current interim management procedure, and other factors described in the 2020 IPHC Annual Meeting Report (IPHC-2020-AM96_R).

The IPHC recommended an allocation to Area 2A that would provide a TCEY of 1,650,000 lb (748.43 mt) with a combined commercial, subsistence, and recreational catch limit of 1,500,000 lb (680.39 mt). This allocation is larger than the catch limit that would apply to Area 2A under the adopted fishing intensity of F42 percent and the proportion of the stock as estimated from the FISS under the current interim management procedure. To achieve the Area 2A and Area 2B allocations and still maintain the target coastwide fishing intensity of F42, the IPHC recommended an overall reduction in catch limits in other IPHC regulatory areas in U.S. waters that are intended to maintain total mortality to the adopted fishing intensity of F42 percent.

After the allocations for Areas 2A and 2B are accounted for, the IPHC apportioned the remaining TCEY to the Alaska regulatory areas (Areas 2C through Area 4) after considering the distribution of harvestable biomass of halibut based on the Fishery Independent Setline Survey, as well as 2019 harvest rates, the recommendations from the IPHC's advisory boards, public input, and social and economic factors. The only U.S. area with an increased TCEY relative to 2019 is Area 3B (+7.6 percent; see Table 1). Information from the Fishery Independent Setline Survey indicated a higher amount of harvestable biomass of halibut in Area 3B in 2020 relative to 2019. Areas 2C, 3A, 4A, 4B, and 4CDE received decreases over 2019 levels that ranged from −2.5 percent in Areas 4CDE to −9.8 percent in Area 4A. The IPHC determined that the 2020 catch limit recommendations are consistent with its conservation objectives for the halibut stock and its management objectives for the halibut fisheries.

The IPHC also considered the Catch Sharing Plan for Area 4CDE developed by the NPFMC in its catch limit recommendation. The Area 4CDE catch limit is determined by subtracting estimates of the Area 4CDE subsistence harvests, commercial discard mortality, and non-directed discard mortality of halibut over 26 inches from the area TCEY. When the resulting Area 4CDE catch limit is greater than 1,657,600 lb (751.87 mt), a direct allocation of 80,000 lb (36.29 mt) is made to Area 4E to provide CDQ fishermen in that area with additional harvesting opportunity. After this 80,000 lb allocation is deducted from the catch limit, the remainder is divided among Areas 4C, 4D, and 4E according to the percentages specified in the CSP. Those percentages are 46.43 percent each to 4C and 4D, and 7.14 percent to 4E. For 2020, the IPHC recommended a catch limit for Area 4CDE of 1,730,000 lb (925.33 mt).

The IPHC considers advice from the IPHC's two advisory boards when selecting opening and closing dates for the halibut fishery. The opening date for all IPHC regulatory areas is March 14, 2020, which closely corresponds to the 2019 opening date of March 15. The closing date for the halibut fisheries in all regulatory areas is November 15, 2020. This date takes into account the anticipated time required to fully harvest the commercial halibut catch limits, seasonal holidays, and adequate time for IPHC staff to review the complete record of 2020 commercial catch data for use in the stock assessment process.

For Area 2A, the IPHC recommended that the non-treaty directed commercial fishery will open for 58 hours, beginning at 0800 hours on June 22 and closing at 1800 hours on June 24. After this first opening, if the IPHC determines that the fishing limit has not been exceeded, it may announce other Area 2A openings of up to three fishing days in duration in two-week intervals after the first Monday opening. Specific fishing period limits (vessel quota) will be determined and communicated by IPHC.

The NMFS West Coast Region has published a proposed rule for changes to the Pacific Halibut Catch Sharing Plan (CSP) for Area 2A off Washington, Oregon, and California (85 FR 6883 February 6, 2020). Public comments were accepted through March 9, 2020. Following the comment period, the West Coast Region will publish a final rule to address the proposed changes to the Area 2A CSP as well as portions of the CSP and management measures that are not implemented through the IPHC. These measures include the sport fishery allocations and management measures for Area 2A. The proposed and final rules for the Area 2A CSP will be available on the NOAA Fisheries West Coast Region's website at https://www.fisheries.noaa.gov/action/2020-pacific-halibut-catch-sharing-plan, and also at www.regulations.gov.

In 2014, NMFS implemented a CSP for Area 2C and Area 3A. The CSP defines an annual process for allocating halibut between the charter and commercial fisheries in Area 2C and Area 3A, and establishes allocations for each fishery. To allow flexibility for individual commercial and charter fishery participants, the CSP also authorizes annual transfers of commercial halibut IFQ as GAF to charter halibut permit holders for harvest in the charter fishery. Under the CSP, the IPHC recommends combined catch limits (CCLs) for the charter and commercial halibut fisheries in Area 2C and Area 3A. Each CCL includes estimates of discard mortality (wastage) for each fishery. The CSP was implemented to achieve the halibut fishery management goals of the NPFMC. More information is provided in the final rule implementing the CSP (78 FR 75844, December 12, 2013). Implementing regulations for the CSP are at 50 CFR 300.65. The Area 2C and Area 3A CSP allocation tables are located in Tables 1 through 4 of subpart E of 50 CFR part 300.

At its February 2020 meeting, the IPHC recommended a CCL of 4,260,000 lb (1,932.30 mt) for Area 2C. Following the CSP allocations in Tables 1 and 3 of subpart E of 50 CFR part 300, the charter fishery is allocated 780,000 lb (353.80 mt) of the CCL and the remainder of the CCL, 3,480,000 lb (1,578.50 mt), is allocated to the commercial fishery. Wastage in the amount of 70,000 lb (31.75 mt) was deducted from the commercial allocation to obtain the commercial catch limit of 3,410,000 lb (1,546.75 mt). The commercial allocation (including wastage) decreased by 190,000 lb (86.18 mt) or 5.2 percent, from the 2019 allocation of 3,670,000 lb (1,664.68 mt). The charter allocation for 2020 decreased by 40,000 lb (18.14 mt), or 4.9 percent less than the 2019 charter sector allocation of 820,000 lb (371.95 mt).

The IPHC recommended a CCL of 9,050,000 lb (4,105.01 mt) for Area 3A. Following the CSP allocations in Tables 2 and 4 of subpart E of 50 CFR part 300, the charter fishery is allocated 1,710,000 lb (775.64 mt) of the CCL and the remainder of the CCL, 7,340,000 lb (3,329.37 mt), is allocated to the commercial fishery. Wastage in the amount of 290,000 lb (131.54 mt) was deducted from the commercial allocation to obtain the commercial catch limit of 7,050,000 lb (3,197.83 mt). The commercial allocation (including wastage) decreased by about 1,030,000 lb (317.51 mt) or 12.3 percent, from the 2019 allocation of 8,370,000 lb (3,796.57 mt). The charter allocation decreased by 180,000 lb (81.67 mt), or 9.5 percent, from the 2019 allocation of 1,890,000 lb (857.29 mt).

Guided (charter) recreational halibut anglers are managed under different regulations than unguided recreational halibut anglers in Areas 2C and 3A in Alaska. According to Federal regulations at 50 CFR 300.61, a charter vessel angler means a person, paying or non-paying, receiving sport fishing guide services for halibut. Sport fishing guide services means assistance, for compensation or with the intent to receive compensation, to a person who is sport fishing, to take or attempt to take halibut by accompanying or physically directing the sport fisherman in sport fishing activities during any part of a charter vessel fishing trip. A charter vessel fishing trip is the time period between the first deployment of fishing gear into the water from a charter vessel by a charter vessel angler and the offloading of one or more charter vessel anglers or any halibut from that vessel. The charter fishery regulations described below apply only to charter vessel anglers receiving sport fishing guide services during a charter vessel fishing trip for halibut in Area 2C or Area 3A. These regulations do not apply to unguided recreational anglers in any regulatory area in Alaska, or guided anglers in areas other than Areas 2C and 3A.

The NPFMC formed the Charter Halibut Management Committee as an industry advisory body to provide recommendations for annual management measures intended to limit charter harvest to the charter catch allocation. The committee is composed of representatives from the charter fishing industry in Areas 2C and 3A. The committee considered previously analyzed alternatives and also suggested new alternative measures that were analyzed in November 2019. For Area 3A, none of the alternative measures resulted in projected removals within the likely range, so the NPFMC requested additional analyses, which were subsequently reviewed in January 2020. After reviewing all the analyses of the effects of the alternative measures on estimated charter removals, the committee made recommendations for preferred management measures to the NPFMC for 2020. The NPFMC considered the recommendations of the committee along with public testimony to develop its recommendation to the IPHC, and the IPHC took action consistent with the NPFMC's recommendations. The NPFMC has used this process to select and recommend annual management measures to the IPHC since 2012.

The IPHC recognizes the role of the NPFMC to develop policy and regulations that allocate the Pacific halibut resource among fishermen in and off Alaska, and that NMFS has developed numerous regulations to support the NPFMC's goals of limiting charter harvests. For each regulatory area, the analysis suggests the management measures will achieve the IPHC's overall conservation objective to keep halibut harvests within established catch limits, and will also meet the NPFMC's allocation objectives. For 2020, the IPHC concluded that in Area 3A, with its lower recommended catch limits relative to 2019, the management measures should be more restrictive than 2019. For Area 2C, the 2020 catch limits are also lower than 2019. However, the effect of management measures over the last two years has resulted in under-harvests of the charter allocation by 18.9 and 11.6 percent, respectively. Consequently, the IPHC determined that the charter management measures in Area 2C could be slightly less restrictive than 2019. The IPHC determined that limiting charter harvests by implementing the management measures discussed below would meet the conservation and allocation objectives.

The preliminary estimate of 2019 charter removals in Area 2C was below the 2019 charter allocation by 154,712 lb (70.31 mt) or 18.9 percent, indicating that the management measures were effective at limiting harvest by charter vessel anglers to the charter allocation. The two primary management measures in Area 2C in 2019 were a daily bag limit of 1 halibut per charter angler, and size limits where retained halibut were required to be less than or equal to 38 inches (96.5 cm), or greater than or equal to 80 inches (203.2 cm). The effect of these regulations is to limit both the number and pounds of retained halibut. The analysis also indicates that in most years since 2014 when the CSP was implemented, the Area 2C harvest has been less than the allocation. Further analysis of alternative management measures indicates that both effort and the number of harvested halibut is projected to decrease in 2020 under status quo regulations. When these considerations were balanced with the reduced charter allocation in 2020, the IPHC concluded that less restrictive management measures for Area 2C in 2020 are appropriate.

Specifically, for 2020 in Area 2C, the IPHC recommended the continuation of a one-fish daily bag limit with a reverse slot limit that prohibits a person on board a charter vessel referred to in 50 CFR 300.65 and fishing in Area 2C from taking or possessing any halibut, with head on, that is greater than 40 inches (101.6 cm) and less than 80 inches (203.2 cm), as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with mouth closed, to the extreme end of the middle of the tail. The projected charter removal under these measures is 772,000 lb (350.17 mt), which is 8,000 lb (3.63 mt) and 1.0 percent below the charter allocation.

The preliminary estimate of charter removals in Area 3A in 2019 exceeded the charter allocation by 122,246 lb (55.45 mt), or 6.5 percent. Starting in 2014, charter vessel anglers in Area 3A have been limited to a two-fish daily bag limit with a maximum size limit on one fish. One effect of the maximum size limit has been that the number of fish harvested per angler has steadily decreased, but the average weight of harvested fish has increased as many anglers opted to maximize the size of retained fish.

This final rule revises the management measures that were adopted for the charter halibut fishery in Area 3A in 2019. The NPFMC and IPHC considered 2019 information on charter removals and the projections of charter harvest for 2020. After considering 2019 harvest information, the NPFMC and IPHC determined that more restrictive management measures in Area 3A were appropriate to limit charter removals, including wastage, to the 2020 allocation.

For 2020, the IPHC recommended the following management measures for Area 3A: (1) A two-fish bag limit with a 26-inch (66.0 cm) size limit on one of the halibut; (2) a one-trip per day limit for charter vessels and for charter halibut permits for the entire season; (3) an annual limit of four fish, with a reporting requirement; and, (4) prohibition on halibut retention by charter vessel anglers on all Tuesdays and all Wednesdays. The projected charter harvest for 2020 under this combination of recommended measures is 1,696,000 lb (769.29 mt), and 14,000 lb (6.35 mt) below the charter allocation. Each of these management measures is described in more detail below.

The 2020 charter halibut fishery in Area 3A will be managed under a two-fish daily bag limit in which one of the retained halibut may be of any size and one of the retained halibut must be 26 inches or less, as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw to the extreme end of the middle of the tail. This is a decrease of the 28 inch (71.cm) maximum size limit that was in place from 2016 through 2019. This daily bag and size limit will be combined with additional restrictions to limit charter halibut removals to the 2020 allocation.

As in 2016 through 2019, charter halibut permits and charter vessels are only authorized for use to catch and retain halibut on one charter halibut fishing trip per day in Area 3A. If no halibut are retained during a charter vessel fishing trip, the charter halibut permit and vessel may be used to take an additional trip to catch and retain halibut that day.

For purposes of the trip limit in Area 3A in 2020, a charter vessel fishing trip will end when anglers or halibut are offloaded, or at the end of the calendar day, whichever occurs first. Charter operators are still able to conduct overnight trips and anglers may retain a bag limit of halibut on two calendar days, but operators are not allowed to begin another overnight trip until the day after the trip ends. GAF halibut are exempt from the trip limit. Therefore, GAF could be used to harvest halibut on a second trip in a day, but only if exclusively GAF halibut were harvested on that trip.

The NPFMC and the IPHC recommended continuing the day-of-week closure on Wednesdays for Area 3A in 2020. No retention of halibut by charter vessel anglers will be allowed in Area 3A on Wednesdays. To further reduce harvest, retention of halibut is also prohibited on all Tuesdays in 2020. Retention of only GAF halibut will be allowed on charter vessels on Tuesdays and Wednesdays; all other halibut that are caught while fishing on a charter vessel must be released. The Tuesday and Wednesday closures are expected to effectively decrease the charter halibut harvest, relative to previous years.

For 2020, charter vessel anglers will continue to be limited to harvesting no more than four halibut on charter vessel fishing trips in Area 3A during a calendar year. This limit applies only to halibut caught and retained during charter vessel fishing trips in Area 3A. Halibut harvested while unguided fishing, fishing in other IPHC regulatory areas, or harvested as GAF will not accrue toward the annual limit.

To enforce the annual limit in 2020, each charter vessel angler who is required to have a State of Alaska sport fishing license and who harvests halibut will be required to record those halibut on the back of the fishing license. For those anglers who are not required to have a sport fishing license ( e.g., youth and senior anglers), a nontransferable Sport Harvest Record Card must be obtained from an Alaska Department of Fish and Game (ADF&G) office, the ADF&G website, or a fishing license vendor, on which to record halibut harvested aboard a charter vessel. Immediately upon retention of a halibut for which an annual limit has been established, the charter vessel angler must record the date, location (Area 3A), and species of the catch (halibut), in ink, on the harvest record card or back of the sport fishing license.

If the original sport fishing license or harvest record is lost, a duplicate or additional sport fishing license or harvest record card must be obtained and completed for all halibut previously retained during that year that were subject to the annual limit.

Only halibut caught during a charter vessel fishing trip in Area 3A accrue toward the 4-fish annual limit and must be recorded on the license or harvest record card. As noted above, halibut that are harvested while charter fishing in regulatory areas other than Area 3A will not accrue toward the annual limit and are not subject to the reporting requirement. Likewise, halibut harvested while sport fishing without a guide in Area 3A, harvested while subsistence fishing, or harvested as GAF do not accrue toward the annual limit and should not be recorded on the license or harvest record. Finally, halibut that are caught in any recreational fishery that bear IPHC external tags are exempt from annual limits, size limits, daily bag and possession limits, and reporting requirements (see Section 8 of the IPHC regulations).

The regulatory text in current Section 23 of the IPHC regulations describes the usual and accustomed fishing area for Treaty tribes that participate in IPHC regulatory Area 2A. Formerly, the description of subarea 2A-1 listed latitude and longitude coordinates for the western boundary of the area. On March 5, 2018, the United States District Court for the Western District of Washington revised the western boundaries of the usual and accustomed fishing areas for the Quileute Indian Tribe and the Quinault Indian Nation. United States v. Washington, 2:09-sp-00001-RSM (W.D. Wash. March 5, 2018) (Order Regarding Boundaries of Quinault and Quileute U&As). The IPHC adopted, and Section 23 now incorporates, a revised definition for subarea 2A-1. The regulatory language now contains a more general description of the usual and accustomed fishing areas for treaty tribes with fishing rights to Pacific halibut, and makes the definition consistent with the recent court decision.

Section 16 of the 2020 IPHC regulations specifies requirements for the operation of halibut fishing vessels in IPHC Areas 4A, 4B, 4C, and 4D. In general, vessels must obtain a vessel clearance before fishing in these areas, and before landing halibut in any of the areas. The primary intent of the regulations is to ensure proper harvesting and catch accounting among adjacent IPHC regulatory areas. Section 16 provides several specific exemptions to the basic vessel clearance requirements. Among the exemptions, subsection 16(16) allows an exemption for vessels that carry a functioning vessel monitoring system (VMS) transmitter while halibut fishing, and up to the point where all halibut are properly offloaded.

The IPHC adopted new regulatory language that updates Section 16(16) to specify that a transmitting VMS, a NOAA Fisheries observer, or a NOAA Fisheries electronic monitoring system will exempt a vessel from the vessel clearance requirements, provided that the vessel operator also complies with appropriate NOAA Fisheries observer, electronic monitoring or VMS regulations.

The IPHC adopted a significant number of minor changes and amendments to the IPHC regulations. Many of the changes are made throughout the regulations for stylistic consistency among the Sections. Although minor, the individual and cumulative effect of the changes improves clarity, consistency, and currency in the regulations. Many of the changes required a reordering and renumbering of the regulations. The most prominent changes to the regulations include:

The following annual management measures for the 2020 Pacific halibut fishery are those recommended by the IPHC and accepted by the Secretary of State, with the concurrence of the Secretary of Commerce.

These Regulations may be cited as the International Pacific Halibut Commission (IPHC) Regulations (2020).

(1) These Regulations apply to persons and vessels fishing for Pacific halibut in, or possessing Pacific halibut taken from, the maritime area as defined in Section 3.

(2) Sections 3 to 8 and 30 apply generally to all Pacific halibut fishing.

(3) Sections 8 to 23 apply to commercial fishing for Pacific halibut.

(4) Section 24 applies to Indigenous fisheries in British Columbia.

(5) Section 25 applies to customary and traditional fishing in Alaska.

(6) Sections 26 to 29 apply to recreational (also called sport) fishing for Pacific halibut.

(7) These Regulations do not apply to fishing operations authorized or conducted by the Commission for research purposes.

(1) In these Regulations,

(a) “authorized officer” means any State, Federal, or Provincial officer authorized to enforce these Regulations including, but not limited to, the National Marine Fisheries Service (NOAA Fisheries), Department of Fisheries and Oceans (DFO), Alaska Wildlife Troopers (AWT), United States Coast Guard (USCG), Washington Department of Fish and Wildlife (WDFW), the Oregon State Police (OSP), and California Department of Fish and Wildlife (CDFW);

(b) “authorized clearance personnel” means an authorized officer of the United States of America, a representative of the Commission, or a designated fish processor;

(c) “charter vessel” outside of Alaska waters means a vessel used for hire in recreational (sport) fishing for Pacific halibut, but not including a vessel without a hired operator, and in Alaska waters means a vessel used while providing or receiving recreational (sport) fishing guide services for Pacific halibut;

(d) “commercial fishing” means fishing, the resulting catch of which is sold or bartered; or is intended to be sold or bartered, other than (i) recreational (sport) fishing; (ii) treaty Indian ceremonial and subsistence fishing as referred to in section 23, (iii) Indigenous groups fishing in British Columbia as referred to in section 24; and (iv) customary and traditional fishing as referred to in section 25 and defined by and regulated pursuant to NOAA Fisheries regulations published at 50 CFR part 300;

(e) “Commission” or “IPHC” means the International Pacific Halibut Commission;

(f) “daily bag limit” means the maximum number of Pacific halibut a person may take in any calendar day from Convention waters;

(g) “fishing” means the taking, harvesting, or catching of fish, or any activity that can reasonably be expected to result in the taking, harvesting, or catching of fish, including specifically the deployment of any amount or component part of gear anywhere in the maritime area;

(h) “fishing period limit” means the maximum amount of Pacific halibut that may be retained and landed by a vessel during one fishing period;

(i) “land” or “offload” with respect to Pacific halibut, means the removal of Pacific halibut from the catching vessel;

(j) “license” means a Pacific halibut fishing license issued by the Commission pursuant to section 15;

(k) “maritime area,” in respect of the fisheries jurisdiction of a Contracting Party, includes without distinction areas within and seaward of the territorial sea and internal waters of that Party;

(l) “net weight” of a Pacific halibut means the weight of Pacific halibut that is without gills and entrails, head-off, washed, and without ice and slime. If a Pacific halibut is weighed with the head on or with ice and slime, the required conversion factors for calculating net weight are a 2 percent deduction for ice and slime and a 10 percent deduction for the head;

(m) “operator,” with respect to any vessel, means the owner and/or the master or other individual on board and in charge of that vessel;

(n) “overall length” of a vessel means the horizontal distance, rounded to the nearest foot, between the foremost part of the stem and the aftermost part of the stern (excluding bowsprits, rudders, outboard motor brackets, and similar fittings or attachments);

(o) “person” includes an individual, corporation, firm, or association;

(p) “regulatory area” means an IPHC Regulatory Area referred to in section 4;

(q) “setline gear” means one or more stationary, buoyed, and anchored lines with hooks attached;

(r) “sport fishing” or “recreational fishing” means all fishing other than (i) commercial fishing; (ii) treaty Indian ceremonial and subsistence fishing as referred to in section 23; (iii) Indigenous groups fishing in British Columbia as referred to in section 24; and (iv) customary and traditional fishing as referred to in section 25 and defined in and regulated pursuant to NOAA Fisheries regulations published in 50 CFR part 300;

(s) “tender” means any vessel that buys or obtains fish directly from a catching vessel and transports it to a port of landing or fish processor;

(t) “VMS transmitter” means a NOAA Fisheries-approved vessel monitoring system transmitter that automatically determines a vessel's position and transmits it to a NOAA Fisheries-approved communications service provider. 1

(2) In these Regulations, all bearings are true and all positions are determined by the most recent charts issued by the United States National Ocean Service or the Canadian Hydrographic Service.

The following areas within the IPHC Convention waters shall be defined as IPHC Regulatory Areas for the purposes of the Convention (see Figure 1):

(1) IPHC Regulatory Area 2A includes all waters off the states of California, Oregon, and Washington;

(2) IPHC Regulatory Area 2B includes all waters off British Columbia;

(3) IPHC Regulatory Area 2C includes all waters off Alaska that are east of a line running 340° true from Cape Spencer Light (58°11′56″ N latitude, 136°38′26″ W longitude) and south and east of a line running 205° true from said light;

(4) IPHC Regulatory Area 3A includes all waters between Area 2C and a line extending from the most northerly point on Cape Aklek (57°41′15″ N latitude, 155°35′00″ W longitude) to Cape Ikolik (57°17′17″ N latitude, 154°47′18″ W longitude), then along the Kodiak Island coastline to Cape Trinity (56°44′50″ N latitude, 154°08′44″ W longitude), then 140° true;

(5) IPHC Regulatory Area 3B includes all waters between Area 3A and a line extending 150° true from Cape Lutke (54°29′00″ N latitude, 164°20′00″ W longitude) and south of 54°49′00″ N latitude in Isanotski Strait;

(6) IPHC Regulatory Area 4A includes all waters in the Gulf of Alaska west of Area 3B and in the Bering Sea west of the closed area defined in section 10 that are east of 172°00′00″ W longitude and south of 56°20′00″ N latitude;

(7) IPHC Regulatory Area 4B includes all waters in the Bering Sea and the Gulf of Alaska west of IPHC Regulatory Area 4A and south of 56°20′00″ N latitude;

(8) IPHC Regulatory Area 4C includes all waters in the Bering Sea north of IPHC Regulatory Area 4A and north of the closed area defined in section 10 which are east of 171°00′00″ W longitude, south of 58°00′00″ N latitude, and west of 168°00′00″ W longitude;

(9) IPHC Regulatory Area 4D includes all waters in the Bering Sea north of IPHC Regulatory Areas 4A and 4B, north and west of IPHC Regulatory Area 4C, and west of 168°00′00″ W longitude; and

(10) IPHC Regulatory Area 4E includes all waters in the Bering Sea north and east of the closed area defined in section 10, east of 168°00′00″ W longitude, and south of 65°34′00″ N latitude.

(1) The Commission has adopted the following distributed mortality (TCEY) limits:

(2) The fishery limits resulting from the IPHC-adopted distributed mortality (TCEY) limits and the existing Contracting Party catch sharing arrangements are as follows, recognizing that each Contracting Party may implement more restrictive limits:

(1) The Commission is authorized to establish or modify regulations during the season after determining that such action:

(a) Will not result in exceeding the fishery limit established preseason for each IPHC Regulatory Area;

(b) is consistent with the Convention between Canada and the United States of America for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, and applicable domestic law of either Canada or the United States of America; and

(c) is consistent, to the maximum extent practicable, with any domestic catch sharing plans or other domestic allocation programs developed by the governments of Canada or the United States of America.

(2) In-season actions may include, but are not limited to, establishment or modification of the following:

(a) Closed areas;

(b) fishing periods;

(c) fishing period limits;

(d) gear restrictions;

(e) recreational (sport) bag limits;

(f) size limits; or

(g) vessel clearances.

(3) In-season changes will be effective at the time and date specified by the Commission.

(4) The Commission will announce in-season actions under this section by providing notice to major Pacific halibut processors; Federal, State, United States of America treaty Indian, and Provincial fishery officials; and the media.

(1) All Pacific halibut that are caught and are not retained shall be immediately released outboard of the roller and returned to the sea with a minimum of injury by:

(a) Hook straightening;

(b) cutting the gangion near the hook; or

(c) carefully removing the hook by twisting it from the Pacific halibut with a gaff.

(2) Except that paragraph (1) shall not prohibit the possession of Pacific halibut on board a vessel that has been brought aboard to be measured to determine if the applicable size limit of the Pacific halibut is met and, if not legal-sized, is promptly returned to the sea with a minimum of injury.

(1) Nothing contained in these Regulations prohibits any vessel at any time from retaining and landing a Pacific halibut that bears a Commission external tag at the time of capture, if the Pacific halibut with the tag still attached is reported at the time of landing and made available for examination by a representative of the Commission or by an authorized officer.

(2) After examination and removal of the tag by a representative of the Commission or an authorized officer, the Pacific halibut:

(a) May be retained for personal use; or

(b) may be sold only if the Pacific halibut is caught during commercial Pacific halibut fishing and complies with the other commercial fishing provisions of these Regulations.

(3) Any Pacific halibut that bears a Commission external tag will not count against commercial fishing period limits, Individual Vessel Quotas (IVQ), Individual Transferable Quota (ITQ), Community Development Quotas (CDQ), or Individual Fishing Quotas (IFQ), and are not subject to size limits in these regulations, but should still be recorded in the landing record.

(4) Any Pacific halibut that bears a Commission external tag will not count against recreational (sport) daily bag limits or possession limits, may be retained outside of recreational (sport) fishing seasons, and are not subject to size limits in these regulations.

(5) Any Pacific halibut that bears a Commission external tag will not count against daily bag limits, possession limits, or fishery limits in the fisheries described in section 23, paragraph (1)(c), section 24, or section 25.

(1) The fishing periods for each IPHC Regulatory Area apply where the fishery limits specified in section 5 have not been taken.

(2) Unless the Commission specifies otherwise, commercial fishing for Pacific halibut in all IPHC Regulatory Areas may begin no earlier in the year than 1200 local time on 14 March.

(3) All commercial fishing for Pacific halibut in all IPHC Regulatory Areas shall cease for the year at 1200 local time on 15 November.

(4) The first fishing period in the IPHC Regulatory Area 2A non-tribal directed commercial fishery  2 shall begin at 0800 on the fourth Monday in June and terminate at 1800 local time on the subsequent Wednesday, unless the Commission specifies otherwise. If the Commission determines that the fishery limit specified for IPHC Regulatory Area 2A in Section 5 has not been exceeded, it may announce a second fishing period of up to three fishing days to begin on Monday two weeks after the first period, and, if necessary, a third fishing period of up to three fishing days to begin on Monday four weeks after the first period.

(5) Notwithstanding paragraph (4), and paragraph (6) of section 12, an incidental catch fishery  3 is authorized during the sablefish seasons in IPHC Regulatory Area 2A in accordance with regulations promulgated by NOAA Fisheries. This fishery will occur between the dates and times listed in paragraphs (2) and (3) of this section.

(6) Notwithstanding paragraph (4), and paragraph (6) of section 12, an incidental catch fishery is authorized during salmon troll seasons in IPHC Regulatory Area 2A in accordance with regulations promulgated by NOAA Fisheries. This fishery will occur between the dates and times listed in paragraphs (2) and (3) of this section.

All waters in the Bering Sea north of 55°00′00″ N latitude in Isanotski Strait that are enclosed by a line from Cape Sarichef Light (54°36′00″ N latitude, 164°55′42″ W longitude) to a point at 56°20′00″ N latitude, 168°30′00″ W longitude; thence to a point at 58°21′25″ N latitude, 163°00′00″ W longitude; thence to Strogonof Point (56°53′18″ N latitude, 158°50′37″ W longitude); and then along the northern coasts of the Alaska Peninsula and Unimak Island to the point of origin at Cape Sarichef Light are closed to Pacific halibut fishing and no person shall fish for Pacific halibut therein or have Pacific halibut in his/her possession while in those waters except in the course of a continuous transit across those waters. All waters in Isanotski Strait between 55°00′00″ N latitude and 54°49′00″ N latitude are closed to Pacific halibut fishing.

(1) No person shall engage in fishing for Pacific halibut in any IPHC Regulatory Area other than during the fishing periods set out in section 9 in respect of that area.

(2) No person shall land or otherwise retain Pacific halibut caught outside a fishing period applicable to the IPHC Regulatory Area where the Pacific halibut was taken.

(3) Subject to paragraphs (7), (8), (9), and (10) of section 18, these Regulations do not prohibit fishing for any species of fish other than Pacific halibut during the closed periods.

(4) Notwithstanding paragraph (3), no person shall have Pacific halibut in his/her possession while fishing for any other species of fish during the closed periods.

(5) No vessel shall retrieve any Pacific halibut fishing gear during a closed period if the vessel has any Pacific halibut on board.

(6) A vessel that has no Pacific halibut on board may retrieve any Pacific halibut fishing gear during the closed period after the operator notifies an authorized officer or representative of the Commission prior to that retrieval.

(7) After retrieval of Pacific halibut gear in accordance with paragraph (6), the vessel shall submit to a hold inspection at the discretion of the authorized officer or representative of the Commission.

(8) No person shall retain any Pacific halibut caught on gear retrieved in accordance with paragraph (6).

(9) No person shall possess Pacific halibut on board a vessel in an IPHC Regulatory Area during a closed period unless that vessel is in continuous transit to or within a port in which that Pacific halibut may be lawfully sold.

(1) Notwithstanding the fishery limits described in section 5, regulations pertaining to the division of the IPHC Regulatory Area 2A fishery limit between the directed commercial fishery and the incidental catch fishery as described in paragraphs (5) and (6) of section 9 will be promulgated by NOAA Fisheries and published in the Federal Register .

(2) The Commission shall determine and announce to the public the date on which the fishery limit for IPHC Regulatory Area 2A will be taken.

(3) Notwithstanding the fishery limits described in section 5, the commercial fishing in IPHC Regulatory Area 2B will close only when all Individual Vessel Quotas (IVQ) and Individual Transferable Quotas (ITQ) assigned by DFO are taken, or 15 November, whichever is earlier.

(4) Notwithstanding the fishery limits described in section 5, IPHC Regulatory Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E will each close only when all Individual Fishing Quotas (IFQ) and all CDQ issued by NOAA Fisheries have been taken, or 15 November, whichever is earlier.

(5) If the Commission determines that the fishery limit specified for IPHC Regulatory Area 2A in section 5 would be exceeded in an additional directed commercial fishing period as specified in paragraph (4) of section 9, the fishery limit for that area shall be considered to have been taken and the directed commercial fishery closed as announced by the Commission.

(6) When under paragraphs (1), (2), and (5) the Commission has announced a date on which the fishery limit for IPHC Regulatory Area 2A will be taken, no person shall fish for Pacific halibut in that area after that date for the rest of the year, unless the Commission has announced the reopening of that area for Pacific halibut fishing.

(7) Notwithstanding the fishery limits described in section 5, the total allowable catch of Pacific halibut that may be taken in the IPHC Regulatory Area 4E directed commercial fishery is equal to the combined annual fishery limits specified for the IPHC Regulatory Areas 4D and 4E CDQ fisheries and any IPHC Regulatory Area 4D IFQ received by transfer by a CDQ organization. The annual IPHC Regulatory Area 4D fishery limit will decrease by the equivalent amount of CDQ and IFQ received by transfer by a CDQ organization taken in IPHC Regulatory Area 4E in excess of the annual IPHC Regulatory Area 4E fishery limit.

(8) Notwithstanding the fishery limits described in section 5, the total allowable catch of Pacific halibut that may be taken in the IPHC Regulatory Area 4D directed commercial fishery is equal to the combined annual fishery limits specified for IPHC Regulatory Areas 4C and 4D. The annual IPHC Regulatory Area 4C fishery limit will decrease by the equivalent amount of Pacific halibut taken in IPHC Regulatory Area 4D in excess of the annual IPHC Regulatory Area 4D fishery limit.

(1) Section 13 applies only to any person fishing for, or any vessel that is used to fish for, IPHC Regulatory Area 4E Community Development Quota (CDQ) Pacific halibut, IPHC Regulatory Area 4D CDQ Pacific halibut, or IPHC Regulatory Area 4D IFQ received by transfer by a CDQ organization provided that the total annual Pacific halibut catch of that person or vessel is landed at a port within IPHC Regulatory Areas 4E or 4D.

(2) A person may retain Pacific halibut taken with setline gear that are smaller than the size limit specified in section 19, provided that no person may sell or barter such Pacific halibut.

(3) The manager of a CDQ organization that authorizes persons to harvest Pacific halibut in the IPHC Regulatory Area 4E or 4D CDQ fisheries or IFQ received by transfer by a CDQ organization must report to the Commission the total number and weight of undersized Pacific halibut taken and retained by such persons pursuant to section 13, paragraph (2). This report, which shall include data and methodology used to collect the data, must be received by the Commission prior to 1 November of the year in which such Pacific halibut were harvested.

(1) It shall be unlawful for any vessel to retain more Pacific halibut than authorized by that vessel's license in any fishing period for which the Commission has announced a fishing period limit.

(2) The operator of any vessel that fishes for Pacific halibut during a fishing period when fishing period limits are in effect must, upon commencing an offload of Pacific halibut to a commercial fish processor, completely offload all Pacific halibut on board said vessel to that processor and ensure that all Pacific halibut is weighed and reported on State fish tickets.

(3) The operator of any vessel that fishes for Pacific halibut during a fishing period when fishing period limits are in effect must, upon commencing an offload of Pacific halibut other than to a commercial fish processor, completely offload all Pacific halibut on board said vessel and ensure that all Pacific halibut are weighed and reported on State fish tickets.

(4) The provisions of paragraph (3) are not intended to prevent retail over-the-side sales to individual purchasers so long as all the Pacific halibut on board is ultimately offloaded and reported.

(5) When fishing period limits are in effect, a vessel's maximum retainable catch will be determined by the Commission based on:

(a) The vessel's overall length in feet and associated length class;

(b) the average performance of all vessels within that class; and

(c) the remaining fishery limit.

(6) Length classes are shown in the following table:

(7) Fishing period limits in IPHC Regulatory Area 2A apply only to the directed Pacific halibut fishery referred to in paragraph (4) of section 9.

(1) No person shall fish for Pacific halibut from a vessel, nor possess Pacific halibut on board a vessel, used either for commercial fishing or as a charter vessel in IPHC Regulatory Area 2A, unless the Commission has issued a license valid for fishing in IPHC Regulatory Area 2A in respect of that vessel.

(2) A license issued for a vessel operating in IPHC Regulatory Area 2A shall be valid only for operating either as a charter vessel or a commercial vessel, but not both.

(3) A vessel with a valid IPHC Regulatory Area 2A commercial license cannot be used to recreationally (sport) fish for Pacific halibut in IPHC Regulatory Area 2A.

(4) A license issued for a vessel operating in the commercial fishery in IPHC Regulatory Area 2A shall be valid for one of the following:

(a) The directed commercial fishery during the fishing periods specified in paragraph (4) of section 9;

(b) the incidental catch fishery during the sablefish fishery specified in paragraph (5) of section 9; or

(c) the incidental catch fishery during the salmon troll fishery specified in paragraph (6) of section 9.

(5) A vessel with a valid license for the IPHC Regulatory Area 2A incidental catch fishery during the sablefish fishery described in paragraph (4)(b) may also apply for or be issued a license for the directed commercial fishery described in paragraph (4)(a).

(6) A license issued in respect to a vessel referred to in paragraph (1) of this section must be carried on board that vessel at all times and the vessel operator shall permit its inspection by any authorized officer.

(7) The Commission shall issue a license in respect to a vessel from its office in Seattle, Washington, upon receipt of a completed “Application for Vessel License for the Pacific Halibut Fishery” form.

(8) A vessel operating in the directed commercial fishery in IPHC Regulatory Area 2A must have submitted its “Application for Vessel License for the Pacific Halibut Fishery” form no later than 2359 local time on 30 April, or the first weekday in May if 30 April is a Saturday or Sunday.

(9) A vessel operating in the incidental catch fishery during the sablefish fishery in IPHC Regulatory Area 2A must have submitted its “Application for Vessel License for the Pacific Halibut Fishery” form no later than 2359 local time on 15 March, or the next weekday in March if 15 March is a Saturday or Sunday.

(10) A vessel operating in the incidental catch fishery during the salmon troll fishery in IPHC Regulatory Area 2A must have submitted its “Application for Vessel License for the Pacific Halibut Fishery” form no later than 2359 local time on 15 March, or the next weekday in March if 15 March is a Saturday or Sunday.

(11) Applications are submitted on the IPHC Secretariat web page.

(12) Information on the “Application for Vessel License for the Pacific Halibut Fishery” form must be accurate.

(13) The “Application for Vessel License for the Pacific Halibut Fishery” form shall be completed by the vessel owner.

(14) Licenses issued under this section shall be valid only during the year in which they are issued.

(15) A new license is required for a vessel that is sold, transferred, renamed, or for which the documentation is changed.

(16) The license required under this section is in addition to any license, however designated, that is required under the laws of the United States of America or any of its States.

(17) The United States of America may suspend, revoke, or modify any license issued under this section under policies and procedures in U.S. Code Title 15, CFR part 904.

(1) The operator of any vessel that fishes for Pacific halibut in IPHC Regulatory Areas 4A, 4B, 4C, or 4D must obtain a vessel clearance before fishing in any of these areas, and before the landing of any Pacific halibut caught in any of these areas, unless specifically exempted in paragraphs (10), (13), (14), (15), or (16).

(2) An operator obtaining a vessel clearance required by paragraph (1) must obtain the clearance in person from the authorized clearance personnel and sign the IPHC form documenting that a clearance was obtained, except that when the clearance is obtained via VHF radio referred to in paragraphs (5), (8), and (9), the authorized clearance personnel must sign the IPHC form documenting that the clearance was obtained.

(3) The vessel clearance required under paragraph (1) prior to fishing in IPHC Regulatory Area 4A may be obtained only at Nazan Bay on Atka Island, Dutch Harbor, or Akutan, Alaska, from an authorized officer of the United States of America, a representative of the Commission, or a designated fish processor.

(4) The vessel clearance required under paragraph (1) prior to fishing in IPHC Regulatory Area 4B may only be obtained at Nazan Bay on Atka Island or Adak, Alaska, from an authorized officer of the United States of America, a representative of the Commission, or a designated fish processor.

(5) The vessel clearance required under paragraph (1) prior to fishing in IPHC Regulatory Area 4C or 4D may be obtained only at St. Paul or St. George, Alaska, from an authorized officer of the United States, a representative of the Commission, or a designated fish processor by VHF radio and allowing the person contacted to confirm visually the identity of the vessel.

(6) The vessel operator shall specify the specific regulatory area in which fishing will take place.

(7) Before unloading any Pacific halibut caught in IPHC Regulatory Area 4A, a vessel operator may obtain the clearance required under paragraph (1) only in Dutch Harbor or Akutan, Alaska, by contacting an authorized officer of the United States of America, a representative of the Commission, or a designated fish processor.

(8) Before unloading any Pacific halibut caught in IPHC Regulatory Area 4B, a vessel operator may obtain the clearance required under paragraph (1) only in Nazan Bay on Atka Island or Adak, by contacting an authorized officer of the United States of America, a representative of the Commission, or a designated fish processor by VHF radio or in person.

(9) Before unloading any Pacific halibut caught in IPHC Regulatory Areas 4C and 4D, a vessel operator may obtain the clearance required under paragraph (1) only in St. Paul, St. George, Dutch Harbor, or Akutan, Alaska, either in person or by contacting an authorized officer of the United States of America, a representative of the Commission, or a designated fish processor. The clearances obtained in St. Paul or St. George, Alaska, can be obtained by VHF radio and allowing the person contacted to confirm visually the identity of the vessel.

(10) Any vessel operator who complies with the requirements in section 17 for possessing Pacific halibut on board a vessel that was caught in more than one regulatory area in IPHC Regulatory Area 4 is exempt from the clearance requirements of paragraph (1) of this section, provided that:

(a) The operator of the vessel obtains a vessel clearance prior to fishing in IPHC Regulatory Area 4 in either Dutch Harbor, Akutan, St. Paul, St. George, Adak, or Nazan Bay on Atka Island by contacting an authorized officer of the United States of America, a representative of the Commission, or a designated fish processor. The clearance obtained in St. Paul, St. George, Adak, or Nazan Bay on Atka Island can be obtained by VHF radio and allowing the person contacted to confirm visually the identity of the vessel. This clearance will list the areas in which the vessel will fish; and

(b) before unloading any Pacific halibut from IPHC Regulatory Area 4, the vessel operator obtains a vessel clearance from Dutch Harbor, Akutan, St. Paul, St. George, Adak, or Nazan Bay on Atka Island by contacting an authorized officer of the United States of America, a representative of the Commission, or a designated fish processor. The clearance obtained in St. Paul or St. George can be obtained by VHF radio and allowing the person contacted to confirm visually the identity of the vessel. The clearance obtained in Adak or Nazan Bay on Atka Island can be obtained by VHF radio.

(11) Vessel clearances shall be obtained between 0600 and 1800, local time.

(12) No Pacific halibut shall be on board the vessel at the time of the clearances required prior to fishing in IPHC Regulatory Area 4.

(13) Any vessel that is used to fish for Pacific halibut only in IPHC Regulatory Area 4A and lands its total annual Pacific halibut catch at a port within IPHC Regulatory Area 4A is exempt from the clearance requirements of paragraph (1).

(14) Any vessel that is used to fish for Pacific halibut only in IPHC Regulatory Area 4B and lands its total annual Pacific halibut catch at a port within IPHC Regulatory Area 4B is exempt from the clearance requirements of paragraph (1).

(15) Any vessel that is used to fish for Pacific halibut only in IPHC Regulatory Areas 4C or 4D or 4E and lands its total annual Pacific halibut catch at a port within IPHC Regulatory Areas 4C, 4D, 4E, or the closed area defined in section 10, is exempt from the clearance requirements of paragraph (1).

(16) Any vessel that carries a NOAA Fisheries observer, a NOAA Fisheries electronic monitoring system, or a transmitting VMS transmitter while fishing for Pacific halibut in IPHC Regulatory Areas 4A, 4B, 4C, or 4D and until all Pacific halibut caught in any of these IPHC Regulatory Areas is landed, is exempt from the clearance requirements of paragraph (1) of this section, provided that:

(a) The operator of the vessel complies with NOAA Fisheries' observer or electronic monitoring regulations published at 50 CFR subpart E, or vessel monitoring system regulations published at 50 CFR 679.28(f)(3), (4) and (5); and

(b) the operator of the vessel notifies NOAA Fisheries Office for Law Enforcement at 800-304-4846 (select option 1 to speak to an Enforcement Data Clerk) between the hours of 0600 and 0000 (midnight) local time within 72 hours before fishing for Pacific halibut in IPHC Regulatory Areas 4A, 4B, 4C, or 4D and receives a VMS confirmation number.

(1) Except as provided in this section, no person shall possess at the same time on board a vessel Pacific halibut caught in more than one IPHC Regulatory Area.

(2) Pacific halibut caught in more than one of the IPHC Regulatory Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, or 4E may be possessed on board a vessel at the same time only if:

(a) Authorized by NOAA Fisheries regulations published at 50 CFR Section 679.7(f)(4); and

(b) the operator of the vessel identifies the regulatory area in which each Pacific halibut on board was caught by separating Pacific halibut from different areas in the hold, tagging Pacific halibut, or by other means.

(1) No person shall fish for Pacific halibut using any gear other than hook and line gear,

(a) except that vessels licensed to catch sablefish in IPHC Regulatory Area 2B using sablefish trap gear as defined in the Condition of Licence can retain Pacific halibut caught as bycatch under regulations promulgated by DFO; or

(b) except that a person may retain Pacific halibut taken with longline or single pot gear if such retention is authorized by NOAA Fisheries regulations published at 50 CFR part 679.

(2) No person shall possess Pacific halibut taken with any gear other than hook and line gear,

(a) except that vessels licensed to catch sablefish in IPHC Regulatory Area 2B using sablefish trap gear as defined by the Condition of Licence can retain Pacific halibut caught as bycatch under regulations promulgated by DFO; or

(b) except that a person may possess Pacific halibut taken with longline or single pot gear if such possession is authorized by NOAA Fisheries regulations published at 50 CFR part 679.

(3) No person shall possess Pacific halibut while on board a vessel carrying any trawl nets.

(4) All gear marker buoys carried on board or used by any United States of America vessel used for Pacific halibut fishing shall be marked with one of the following:

(a) The vessel's State license number; or

(b) the vessel's registration number.

(5) The markings specified in paragraph (4) shall be in characters at least four inches in height and one-half inch in width in a contrasting color visible above the water and shall be maintained in legible condition.

(6) All gear marker buoys carried on board or used by a Canadian vessel used for Pacific halibut fishing shall be:

(a) Floating and visible on the surface of the water; and

(b) legibly marked with the identification plate number of the vessel engaged in commercial fishing from which that setline is being operated.

(7) No person on board a vessel used to fish for any species of fish anywhere in IPHC Regulatory Area 2A during the 72-hour period immediately before the fishing period for the directed commercial fishery shall catch or possess Pacific halibut anywhere in those waters during that Pacific halibut fishing period unless, prior to the start of the Pacific halibut fishing period, the vessel has removed its gear from the water and has either:

(a) Made a landing and completely offloaded its catch of other fish; or

(b) submitted to a hold inspection by an authorized officer.

(8) No vessel used to fish for any species of fish anywhere in IPHC Regulatory Area 2A during the 72-hour period immediately before the fishing period for the directed commercial fishery may be used to catch or possess Pacific halibut anywhere in those waters during that Pacific halibut fishing period unless, prior to the start of the Pacific halibut fishing period, the vessel has removed its gear from the water and has either:

(a) Made a landing and completely offloaded its catch of other fish; or

(b) submitted to a hold inspection by an authorized officer.

(9) No person on board a vessel used to fish for any species of fish anywhere in IPHC Regulatory Areas 2B, 2C, 3A, 3B, 4A, 4B, 4C, 4D, or 4E during the 72-hour period immediately before the opening of the Pacific halibut fishing season shall catch or possess Pacific halibut anywhere in those areas until the vessel has removed all of its gear from the water and has either:

(a) Made a landing and completely offloaded its entire catch of other fish; or

(b) submitted to a hold inspection by an authorized officer.

(10) No vessel used to fish for any species of fish anywhere in IPHC Regulatory Areas 2B, 2C, 3A, 3B, 4A, 4B, 4C, 4D, or 4E during the 72-hour period immediately before the opening of the Pacific halibut fishing season may be used to catch or possess Pacific halibut anywhere in those areas until the vessel has removed all of its gear from the water and has either:

(a) Made a landing and completely offloaded its entire catch of other fish; or

(b) submitted to a hold inspection by an authorized officer.

(11) Notwithstanding any other provision in these Regulations, a person may retain, possess and dispose of Pacific halibut taken with trawl gear only as authorized by Prohibited Species Donation regulations of NOAA Fisheries.

(1) No person shall take or possess any Pacific halibut that:

(a) With the head on, is less than 32 inches (81.3 cm) as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with the mouth closed, to the extreme end of the middle of the tail, as illustrated in Figure 2; or

(b) with the head removed, is less than 24 inches (61.0 cm) as measured from the base of the pectoral fin at its most anterior point to the extreme end of the middle of the tail, as illustrated in Figure 2.

(2) No person on board a vessel fishing for, or tendering, Pacific halibut in any IPHC Regulatory Area shall possess any Pacific halibut that has had its head removed, except that Pacific halibut frozen at sea with its head removed may be possessed on board a vessel by persons in IPHC Regulatory Areas 2B, 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E if authorized by Federal regulations.

(3) The size limit in paragraph (1)(b) will not be applied to any Pacific halibut that has had its head removed after the operator has landed the Pacific halibut.

(1) The operator of any U.S. vessel fishing for Pacific halibut that has an overall length of 26 feet (7.9 meters) or greater shall maintain an accurate log of Pacific halibut fishing operations. The operator of a vessel fishing in waters in and off Alaska must use one of the following logbooks: The Groundfish/IFQ Longline and Pot Gear Daily Fishing Logbook, in electronic or paper form, provided by NOAA Fisheries; the Alaska hook-and-line logbook provided by Petersburg Vessel Owners Association or Alaska Longline Fisherman's Association; the Alaska Department of Fish and Game (ADFG) longline-pot logbook; or the logbook provided by IPHC. The operator of a vessel fishing in IPHC Regulatory Area 2A must use either the WDFW Voluntary Sablefish Logbook, Oregon Department of Fish and Wildlife (ODFW) Fixed Gear Logbook, or the logbook provided by IPHC.

(2) The logbook referred to in paragraph (1) must include the following information:

(a) The name of the vessel and the State (ADFG, WDFW, ODFW, or CDFW) or Tribal ID number;

(b) the date(s) upon which the fishing gear is set or retrieved;

(c) the latitude and longitude coordinates or a direction and distance from a point of land for each set or day;

(d) the number of skates deployed or retrieved, and number of skates lost; and

(e) the total weight or number of Pacific halibut retained for each set or day.

(3) The logbook referred to in paragraph (1) shall be:

(a) Maintained on board the vessel;

(b) updated not later than 24 hours after 0000 (midnight) local time for each day fished and prior to the offloading or sale of Pacific halibut taken during that fishing trip;

(c) retained for a period of two years by the owner or operator of the vessel;

(d) open to inspection by an authorized officer or any authorized representative of the Commission upon demand; and

(e) kept on board the vessel when engaged in Pacific halibut fishing, during transits to port of landing, and until the offloading of all Pacific halibut is completed.

(4) The log referred to in paragraph (1) does not apply to the incidental Pacific halibut fishery during the salmon troll season in IPHC Regulatory Area 2A defined in paragraph (6) of section 9.

(5) The operator of any Canadian vessel fishing for Pacific halibut shall maintain an accurate record in the British Columbia Integrated Groundfish Fishing Log.

(6) The log referred to in paragraph (5) must include the following information:

(a) The name of the vessel and the DFO vessel registration number;

(b) the date(s) upon which the fishing gear is set and retrieved;

(c) the latitude and longitude coordinates for each set;

(d) the number of skates deployed or retrieved, and number of skates lost; and

(e) the total weight or number of Pacific halibut retained for each set.

(7) The log referred to in paragraph (5) shall be:

(a) Maintained on board the vessel;

(b) retained for a period of two years by the owner or operator of the vessel;

(c) open to inspection by an authorized officer or any authorized representative of the Commission upon demand;

(d) kept on board the vessel when engaged in Pacific halibut fishing, during transits to port of landing, and until the offloading of all Pacific halibut is completed;

(e) submitted to the DFO within seven days of offloading; and

(f) submitted to the Commission within seven days of the final offload if not previously collected by a Commission employee.

(8) No person shall make a false entry in a log referred to in this section.

(1) No person shall receive Pacific halibut caught in IPHC Regulatory Area 2A from a United States of America vessel that does not have on board the license required by section 15.

(2) No person shall possess on board a vessel a Pacific halibut other than whole or with gills and entrails removed, except that this paragraph shall not prohibit the possession on board a vessel of:

(a) Pacific halibut cheeks cut from Pacific halibut caught by persons authorized to process the Pacific halibut on board in accordance with NOAA Fisheries regulations published at 50 CFR part 679;

(b) fillets from Pacific halibut offloaded in accordance with section 21 that are possessed on board the harvesting vessel in the port of landing up to 1800 local time on the calendar day following the offload;  4 and

(c) Pacific halibut with their heads removed in accordance with section 19.

(3) No person shall offload Pacific halibut from a vessel unless the gills and entrails have been removed prior to offloading. 5

(4) It shall be the responsibility of a vessel operator who lands Pacific halibut to continuously and completely offload at a single offload site all Pacific halibut on board the vessel.

(5) A registered buyer (as that term is defined in regulations promulgated by NOAA Fisheries and codified at 50 CFR part 679) who receives Pacific halibut harvested in IFQ and CDQ fisheries in IPHC Regulatory Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E, directly from the vessel operator that harvested such Pacific halibut must weigh all the Pacific halibut received and record the following information on Federal catch reports: date of offload; name of vessel; vessel number (State, Tribal or Federal, not IPHC vessel number); scale weight obtained at the time of offloading, including the scale weight (in pounds) of Pacific halibut purchased by the registered buyer, the scale weight (in pounds) of Pacific halibut offloaded in excess of the IFQ or CDQ, the scale weight of Pacific halibut (in pounds) retained for personal use or for future sale, and the scale weight (in pounds) of Pacific halibut discarded as unfit for human consumption. All Pacific halibut harvested in IFQ or CDQ fisheries in Areas IPHC Regulatory 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E, must be weighed with the head on and the head-on weight must be recorded on Federal catch reports as specified in this paragraph, unless the Pacific halibut is frozen at sea and exempt from the head-on landing requirement at section 19(2).

(6) The first recipient, commercial fish processor, or buyer in the United States of America who purchases or receives Pacific halibut directly from the vessel operator that harvested such Pacific halibut must weigh and record all Pacific halibut received and record the following information on State fish tickets: the date of offload; vessel number (State or Federal, not IPHC vessel number) or Tribal ID number; total weight obtained at the time of offload including the weight (in pounds) of Pacific halibut purchased; the weight (in pounds) of Pacific halibut offloaded in excess of the IFQ, CDQ, or fishing period limits; the weight of Pacific halibut (in pounds) retained for personal use or for future sale; and the weight (in pounds) of Pacific halibut discarded as unfit for human consumption. All Pacific halibut harvested in fisheries in IPHC Regulatory Areas 2A, 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E must be weighed with the head on and the head-on weight must be recorded on State fish tickets as specified in this paragraph, unless the Pacific halibut is frozen at sea and exempt from the head-on landing requirement at section 19(2).

(7) For Pacific halibut landings made in Alaska, the requirements as listed in paragraphs (5) and (6) can be met by recording the information in the Interagency Electronic Reporting Systems, eLandings, in accordance with NOAA Fisheries regulation published at 50 CFR part 679.

(8) The master or operator of a Canadian vessel that was engaged in Pacific halibut fishing must weigh and record all Pacific halibut on board said vessel at the time offloading commences and record on Provincial fish tickets or Federal catch reports: The date; locality; name of vessel; the name(s) of the person(s) from whom the Pacific halibut was purchased; and the scale weight obtained at the time of offloading of all Pacific halibut on board the vessel including the pounds purchased, pounds in excess of IVQs or ITQs, pounds retained for personal use, and pounds discarded as unfit for human consumption. All Pacific halibut must be weighed with the head on and the head-on weight must be recorded on the Provincial fish tickets or Federal catch reports as specified in this paragraph, unless the Pacific halibut is frozen at sea and exempt from the head-on landing requirement at section 19(2).

(9) No person shall make a false entry on a State or Provincial fish ticket or a Federal catch or landing report referred to in paragraphs (5), (6), and (8) of this section.

(10) A copy of the fish tickets or catch reports referred to in paragraphs (5), (6), and (8) shall be:

(a) Retained by the person making them for a period of three years from the date the fish tickets or catch reports are made; and

(b) open to inspection by an authorized officer or any authorized representative of the Commission.

(11) No person shall possess any Pacific halibut taken or retained in contravention of these Regulations.

(12) When Pacific halibut are landed to other than a commercial fish processor, the records required by paragraph (6) shall be maintained by the operator of the vessel from which that Pacific halibut was caught, in compliance with paragraph (10).

(13) No person shall tag Pacific halibut unless the tagging is authorized by IPHC permit or by a Federal or State agency.

The unloading and weighing of Pacific halibut may be subject to the supervision of authorized officers to assure the fulfillment of the provisions of these Regulations.

(1) Pacific halibut fishing in IPHC Regulatory Area Subarea 2A-1 by members of United States treaty Indian tribes located in the State of Washington shall be regulated under regulations promulgated by NOAA Fisheries and published in the Federal Register .

(a) Subarea 2A-1 includes the usual and accustomed fishing areas for Pacific Coast treaty tribes off the coast of Washington and all inland marine waters of Washington north of Point Chehalis (46°53.30′ N lat.), including Puget Sound. Boundaries of a tribe's fishing area may be revised as ordered by a United States Federal court.

(b) Section 15 (Licensing Vessels for IPHC Regulatory Area 2A) does not apply to commercial fishing for Pacific halibut in Subarea 2A-1 by Indian tribes.

(c) Ceremonial and subsistence fishing for Pacific halibut in Subarea 2A-1 is permitted with hook and line gear from 1 January through 31 December.

(2) In IPHC Regulatory Area 2C, the Metlakatla Indian Community has been authorized by the United States Government to conduct a commercial Pacific halibut fishery within the Annette Islands Reserve. Fishing periods for this fishery are announced by the Metlakatla Indian Community and the Bureau of Indian Affairs. Landings in this fishery are accounted with the commercial landings for IPHC Regulatory Area 2C.

(3) Section 7 (careful release of Pacific halibut), section 18 (fishing gear), except paragraphs (7) and (8) of section 18, section 19 (size limits), section 20 (logs), and section 21 (receipt and possession of Pacific halibut) apply to commercial fishing for Pacific halibut by Indian tribes.

(4) Regulations in paragraph (3) of this section that apply to State fish tickets apply to Tribal tickets that are authorized by WDFW and ADFG.

(5) Commercial fishing for Pacific halibut is permitted with hook and line gear between the dates specified in section 9 paragraphs (2) and (3), or until the applicable fishery limit specified in section 5 is taken, whichever occurs first.

(1) Fishing for Pacific halibut for food, social and ceremonial purposes by Indigenous groups in IPHC Regulatory Area 2B shall be governed by the Fisheries Act of Canada and regulations as amended from time to time.

(1) Customary and traditional fishing for Pacific halibut in IPHC Regulatory Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E shall be governed pursuant to regulations promulgated by NOAA Fisheries and published in 50 CFR part 300.

(2) Customary and traditional fishing is authorized from 1 January through 31 December.

(1) No person shall engage in recreational (sport) fishing for Pacific halibut using gear other than a single line with no more than two hooks attached; or a spear.

(2) Any size limit promulgated under IPHC or domestic regulations shall be measured in a straight line passing over the pectoral fin from the tip of the lower jaw with the mouth closed, to the extreme end of the middle of the tail as depicted in Figure 2.

(3) Any Pacific halibut brought aboard a vessel and not immediately returned to the sea with a minimum of injury will be included in the daily bag limit of the person catching the Pacific halibut.

(4) No person may possess Pacific halibut on a vessel while fishing in a closed area.

(5) No Pacific halibut caught by recreational (sport) fishing shall be offered for sale, sold, traded, or bartered.

(6) No Pacific halibut caught in recreational (sport) fishing shall be possessed on board a vessel when other fish or shellfish aboard said vessel are destined for commercial use, sale, trade, or barter.

(7) The operator of a charter vessel shall be liable for any violations of these Regulations committed by an angler on board said vessel. In Alaska, the charter vessel guide, as defined in 50 CFR 300.61 and referred to in 50 CFR 300.65, 300.66, and 300.67, shall be liable for any violation of these Regulations committed by an angler on board a charter vessel.

(1) The Commission shall determine and announce closing dates to the public for any area in which the fishery limits promulgated by NOAA Fisheries are estimated to have been taken.

(2) When the Commission has determined that a subquota under paragraph (7) of this section is estimated to have been taken, and has announced a date on which the season will close, no person shall recreational (sport) fish for Pacific halibut in that area after that date for the rest of the year, unless a reopening of that area for recreational (sport) Pacific halibut fishing is scheduled in accordance with the Catch Sharing Plan for IPHC Regulatory Area 2A, or announced by the Commission.

(3) In California, Oregon, or Washington, no person shall fillet, mutilate, or otherwise disfigure a Pacific halibut in any manner that prevents the determination of minimum size or the number of fish caught, possessed, or landed.

(4) The possession limit on a vessel for Pacific halibut in the waters off the coast of Washington is the same as the daily bag limit. The possession limit for Pacific halibut on land in Washington is two daily bag limits.

(5) The possession limit on a vessel for Pacific halibut caught in the waters off the coast of Oregon is the same as the daily bag limit. The possession limit for Pacific halibut on land in Oregon is three daily bag limits.

(6) The possession limit on a vessel for Pacific halibut caught in the waters off the coast of California is one daily bag limit. The possession limit for Pacific halibut on land in California is one daily bag limit.

(7) Specific regulations describing fishing periods, fishery limits, fishing dates, and daily bag limits are promulgated by NOAA Fisheries and published in the Federal Register .

(1) In all waters off British Columbia:  6 7

(a) The recreational (sport) fishing season will open on 1 February unless more restrictive regulations are in place;

(b) the recreational (sport) fishing season will close when the recreational (sport) fishery limit allocated by DFO is taken, or 31 December, whichever is earlier; and

(c) the daily bag limit is two Pacific halibut of any size per day per person.

(2) In British Columbia, no person shall fillet, mutilate, or otherwise disfigure a Pacific halibut in any manner that prevents the determination of minimum size or the number of fish caught, possessed, or landed.

(3) The possession limit for Pacific halibut in the waters off the coast of British Columbia is three Pacific halibut. 6 7

(1) In Convention waters in and off Alaska:  8 9

(a) The recreational (sport) fishing season is from 1 February to 31 December.

(b) The daily bag limit is two Pacific halibut of any size per day per person unless a more restrictive bag limit applies in Commission regulations or Federal regulations at 50 CFR 300.65.

(c) No person may possess more than two daily bag limits.

(d) No person shall possess on board a vessel, including charter vessels and pleasure craft used for fishing, Pacific halibut that have been filleted, mutilated, or otherwise disfigured in any manner, except that each Pacific halibut may be cut into no more than 2 ventral pieces, 2 dorsal pieces, and 2 cheek pieces, with a patch of skin on each piece, naturally attached.

(e) Pacific halibut in excess of the possession limit in paragraph (1)(c) of this section may be possessed on a vessel that does not contain recreational (sport) fishing gear, fishing rods, hand lines, or gaffs.

(f) Pacific halibut harvested on a charter vessel fishing trip in IPHC Regulatory Areas 2C or 3A must be retained on board the charter vessel on which the Pacific halibut was caught until the end of the charter vessel fishing trip as defined at 50 CFR 300.61.

(g) Guided angler fish (GAF), as described at 50 CFR 300.65, may be used to allow a charter vessel angler to harvest additional Pacific halibut up to the limits in place for unguided anglers, and are exempt from the requirements in paragraphs (2) and (3) of this section.

(2) For guided recreational (sport) fishing (as referred to in 50 CFR 300.65) in IPHC Regulatory Area 2C:

(a) No person on board a charter vessel (as referred to in 50 CFR 300.65) shall catch and retain more than one Pacific halibut per calendar day.

(b) No person on board a charter vessel (as referred to in 50 CFR 300.65) shall catch and retain any Pacific halibut that with head on is greater than 40 inches (101.6 cm) and less than 80 inches (203.2 cm) as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with mouth closed, to the extreme end of the middle of the tail.

(3) For guided recreational (sport) fishing (as referred to in 50 CFR 300.65) in IPHC Regulatory Area 3A:

(a) No person on board a charter vessel (as referred to in 50 CFR 300.65) shall catch and retain more than two Pacific halibut per calendar day.

(b) At least one of the retained Pacific halibut must have a head-on length of no more than 26 inches (66.0 cm) as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with mouth closed, to the extreme end of the middle of the tail. If a person recreational (sport) fishing on a charter vessel in IPHC Regulatory Area 3A retains only one Pacific halibut in a calendar day, that Pacific halibut may be of any length.

(c) A “charter halibut permit” (as referred to in 50 CFR 300.67) may only be used for one charter vessel fishing trip in which Pacific halibut are caught and retained per calendar day. A charter vessel fishing trip is defined at 50 CFR 300.61 as the time period between the first deployment of fishing gear into the water by a charter vessel angler (as defined at 50 CFR 300.61) and the offloading of one or more charter vessel anglers or any Pacific halibut from that vessel. For purposes of this trip limit, a charter vessel fishing trip ends at 2359 (Alaska local time) on the same calendar day that the fishing trip began, or when any anglers or Pacific halibut are offloaded, whichever comes first.

(d) A charter vessel on which one or more anglers catch and retain Pacific halibut may only make one charter vessel fishing trip per calendar day. A charter vessel fishing trip is defined at 50 CFR 300.61 as the time period between the first deployment of fishing gear into the water by a charter vessel angler (as defined at 50 CFR 300.61) and the offloading of one or more charter vessel anglers or any Pacific halibut from that vessel. For purposes of this trip limit, a charter vessel fishing trip ends at 2359 (Alaska local time) on the same calendar day that the fishing trip began, or when any anglers or Pacific halibut are offloaded, whichever comes first.

(e) No person on board a charter vessel may catch and retain Pacific halibut on any Tuesday or Wednesday.

(f) Charter vessel anglers may catch and retain no more than four (4) Pacific halibut per calendar year on board charter vessels in IPHC Regulatory Area 3A. Pacific halibut that are retained as GAF, retained while on a charter vessel fishing trip in other Commission regulatory areas, or retained while fishing without the services of a guide do not accrue toward the 4-fish annual limit. For purposes of enforcing the annual limit, each angler must:

(1) maintain a nontransferable harvest record in the angler's possession if retaining a Pacific halibut for which an annual limit has been established. Such harvest record must be maintained either on the back of the angler's State of Alaska recreational (sport) fishing license or on a Sport Fishing Harvest Record Card obtained, without charge, from ADF&G offices, the ADF&G website, or fishing license vendors; and

(2) immediately upon retaining a Pacific halibut for which an annual limit has been established, record the date, location (IPHC Regulatory Area 3A), and species of the catch (Pacific halibut), in ink, on the harvest record; and

(3) record the information required by paragraph 3(g)(2) on any duplicate or additional recreational (sport) fishing license issued to the angler or any duplicate or additional Sport Fishing Harvest Record Card obtained by the angler for all Pacific halibut previously retained during that year that were subject to the harvest record reporting requirements of this section; and

(4) carry the harvest record on his or her person while fishing for Pacific halibut.

These Regulations shall supersede all previous regulations of the Commission, and these Regulations shall be effective each succeeding year until superseded.

These IPHC annual management measures are a product of an agreement between the United States and Canada and are published in the Federal Register to provide notice of their effectiveness and content. Pursuant to section 4 of the Northern Pacific Halibut Act of 1982, 16 U.S.C. 773b, the Secretary of State, with the concurrence of the Secretary of Commerce, may “accept or reject” but not modify these recommendations of the IPHC. The notice-and-comment and delay-in-effectiveness date provisions of the Administrative Procedure Act (APA), 5 U.S.C. 553(b) and (d), are inapplicable to IPHC management measures because this regulation involves a foreign affairs function of the United States, 5 U.S.C. 553(a)(1). As stated above, the Secretary of State has no discretion to modify the recommendations of the IPHC. The additional time necessary to comply with the notice-and-comment and delay-in-effectiveness requirements of the APA would disrupt coordinated international conservation and management of the halibut fishery pursuant to the Convention. Additionally, these IPHC management measures are published pursuant to regulations at 50 CFR 300.62 which mandate “immediate regulatory effect” upon publication in the Federal Register . The promulgation of 50 CFR 300.62, thus, notified the public that IPHC management measures are revised annually and are in effect immediately upon publication. Furthermore, no other law requires prior notice and public comment for this rule. Because prior notice and an opportunity for public comment are not required to be provided for these portions of this rule by 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 not applicable. Accordingly, no Regulatory Flexibility Analysis is required for this portion of the rule and none has been prepared. This final rule has been determined to be not significant for the purposes of Executive Order 12866. Because this is not a significant rule, the provisions of Executive Order 13771 are inapplicable.

The snapper-grouper fishery of the South Atlantic includes golden tilefish and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council (Council) 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.

The commercial sector for golden tilefish comprises the longline and hook-and-line components. The commercial golden tilefish ACL is allocated 75 percent to the longline component and 25 percent to the hook-and-line component. The commercial ACL (equivalent to the commercial quota) is 331,740 lb (150,475 kg) gutted weight, and the longline component quota is 248,805 lb (112,856 kg) gutted weight (50 CFR 622.190(a)(2)(iii).

Under 50 CFR 622.193(a)(1)(ii), NMFS is required to close the commercial longline component for golden tilefish when the longline component's commercial quota specified under 50 CFR 622.190(a)(2)(iii) is reached or is projected to be reached by filing a notification to that effect with the Office of the Federal Register. After the longline component quota is reached or is projected to be reached, golden tilefish may not be commercially fished or possessed by a vessel with a golden tilefish longline endorsement. NMFS previously determined that the commercial quota for the golden tilefish longline component in the South Atlantic would be reached by February 18, 2020. Therefore, NMFS published a temporary rule to close the commercial longline component for South Atlantic golden tilefish from February 18, 2020, through the end of the 2020 fishing year (85 FR 9398; February 19, 2020). However, a recent landings estimation indicates that the commercial longline ACL for golden tilefish has not been met.

In accordance with 50 CFR 622.8(c), NMFS temporarily re-opens the commercial longline component for golden tilefish on March 14, 2020. The commercial longline component will remain open for 9 days to allow for the commercial longline ACL to be reached. The commercial longline component will be closed from 12:01 a.m. eastern time on March 23, 2020, until January 1, 2021, the start of the next fishing year. NMFS has determined that this re-opening will allow for an additional opportunity to commercially harvest the golden tilefish longline component quota while minimizing the risk of exceeding the commercial ACL.

The operator of a vessel with a valid Federal commercial vessel permit for South Atlantic snapper-grouper and a valid commercial longline endorsement for golden tilefish having golden tilefish on board must have landed and bartered, traded, or sold such golden tilefish prior to 12:01 a.m. eastern time on March 23, 2020. During the subsequent commercial longline closure, golden tilefish may still be commercially harvested using hook-and-line gear while the hook-and-line component is open. However, a vessel with a golden tilefish longline endorsement is not eligible to fish for or possess golden tilefish using hook-and-line gear under the hook-and-line commercial trip limit, as specified in 50 CFR 622.191(a)(2)(ii). The operator of a vessel with a valid Federal commercial vessel permit for South Atlantic snapper-grouper and a valid commercial longline endorsement for golden tilefish with golden tilefish on board must have landed and bartered, traded, or sold such golden tilefish prior to 12:01 a.m. eastern time on March 23, 2020. During the commercial longline closure, the recreational bag limit and possession limits specified in 50 CFR 622.187(b)(2)(iii) and (c)(1), respectively, apply to all harvest or possession of golden tilefish in or from the South Atlantic EEZ by a vessel with a golden tilefish longline endorsement.

The sale or purchase of longline-caught golden tilefish taken from the South Atlantic EEZ is prohibited during the commercial longline closure. The prohibition on sale or purchase does not apply to the sale or purchase of longline-caught golden tilefish that were harvested, landed ashore, and sold prior to 12:01 a.m. eastern time on March 23, 2020, and were held in cold storage by a dealer or processor. Additionally, the recreational bag and possession limits and the sale and purchase provisions of the commercial closure apply to a person on board a vessel with a golden tilefish longline endorsement, regardless of whether the golden tilefish are harvested in state or Federal waters, as specified in 50 CFR 622.190(c)(1).

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

This action is taken under 50 CFR 622.8(c) 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 that the need to immediately implement this action to re-open the commercial longline component for golden tilefish constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures for this temporary rule would be unnecessary. Such procedures are unnecessary, because the applicable regulations have already been subject to notice and comment, and all that remains is to notify the public of the re-opening.

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

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2020 A-season Pacific cod total allowable catch allocated to AFA trawl catcher/processors is 2,397 metric tons (mt) as established by the final 2020 and 2021 harvest specifications for groundfish in the BSAI (85 FR 13553, March 9, 2020).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the A-season Pacific cod total allowable catch allocated to the AFA trawl catcher/processors in the BSAI will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 200 mt and is setting aside the remaining 2,197 mt as incidental catch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by AFA trawl catcher/processors in the BSAI.

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

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for Pacific cod by AFA trawl catcher/processors in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 9, 2020.

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

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