This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This rule is issued under Marketing Order No. 985, as amended (7 CFR part 985), regulating the handling of spearmint oil produced in the Far West. Part 985 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and is comprised of spearmint oil producers operating within the area of production, and a public member.

The Department of Agriculture (USDA) is issuing this final rule in conformance with Executive Orders 13563 and 13175. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. The Order now in effect states that salable quantities and producer allotment percentages may be established for classes of spearmint oil produced in the Far West. This final rule establishes quantities and percentages for Class 1 (Scotch) and Class 3 (Native) spearmint oil for the 2020-2021 marketing year, which begins on June 1, 2020.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such a handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

Pursuant to §§ 985.50, 985.51, and 985.52, the Order requires the Committee to meet each year to consider supply and demand of spearmint oil and to adopt a marketing policy for the ensuing marketing year. When such considerations indicate a need to establish or to maintain stable market conditions through volume regulation, the Committee recommends salable quantity limitations and producer allotments to regulate the quantity of Far West spearmint oil available to the market.

According to § 985.12, “salable quantity” is the total quantity of each class of oil (Scotch or Native) that handlers may purchase from, or handle on behalf of, producers during a given marketing year. The total industry allotment base is the aggregate of all allotment bases held individually by producers as prescribed under § 985.53(d)(1). The total allotment base is revised each year on June 1 due to producer base being lost because of the “bona fide effort” production provision of § 985.53(e).

Each producer's prorated share of the salable quantity of each class of oil, or their “annual allotment” as defined in § 985.13, is calculated by using an allotment percentage. The percentage is derived by dividing the salable quantity by the total industry allotment base for that same class of oil.

The Committee met on October 16, 2019, to consider its marketing policy for the 2020-2021 marketing year. At that meeting, the Committee determined that, based on the current market and supply conditions, volume regulation for both classes of oil is necessary. With a 7-1 vote, the Committee recommended a salable quantity and allotment percentage for Scotch spearmint oil of 838,404 pounds and 38 percent. The member voting in opposition to the recommendation favored volume regulation, but at a level closer to 30 percent. The Committee voted unanimously on its recommended salable quantity and allotment percentage for Native spearmint oil of 1,230,531 pounds and 49 percent.

This action establishes the amount of Scotch and Native spearmint oil that handlers may purchase from, or handle on behalf of, producers during the 2020-2021 marketing year, which begins on June 1, 2020. Salable quantities and allotment percentages have been placed into effect each season since the Order's inception in 1980.

The Committee's recommended 2020-2021 marketing year salable quantity and allotment percentage for Scotch spearmint oil represent an increase from the previous year's levels. The 2020-2021 marketing year salable quantity of 838,404 pounds is 6,323 pounds more than the 2019-2020 marketing year salable quantity of 832,081 pounds. The allotment percentage, recommended at 38 percent for the 2020-2021 marketing year, is the same as the percentage in effect the previous year. The total estimated allotment base for the coming marketing year is estimated at 2,206,325 pounds. This figure represents a one-percent increase over the 2019-2020 marketing year total allotment base of 2,184,480.

The Committee considered several factors in making its recommendation, including the current and projected future supply, estimated future demand, production costs, and producer prices. The Committee's recommendation also accounts for established acreage of Scotch spearmint oil, consumer demand, existing carry-in, reserve pool volume, and increased production in competing markets.

According to the Committee, as costs of production have increased, many producers have forgone new plantings of Scotch spearmint. This has resulted in a significant decline in production of Scotch spearmint oil over the past years. Production has decreased from 1,113,346 pounds produced in 2016 to an estimated 567,623 pounds produced in 2019.

Industry reports also indicate that trade demand for Far West Scotch spearmint oil has decreased over the past five years. Scotch spearmint oil sales have averaged 832,522 pounds per year over the last five years, while sales have averaged just 720,992 pounds over the last three years. For the 2020-2021 marketing year, the Committee estimates trade demand to be 750,000 pounds, a little higher than the rolling three-year average. In addition to declining spearmint oil demand, increasing production of Scotch spearmint oil in competing markets, most notably Canada and the U.S. Midwest, has put additional downward pressure on the Far West Scotch spearmint oil market.

Given the general decline in demand and anticipated market conditions for the coming year, the Committee decided it was prudent to estimate that the Scotch spearmint oil trade demand for the 2020-2021 marketing year trade will be 750,000 pounds, 55,000 pounds lower than the prior year. Should the volume regulation levels established by this action prove insufficient to adequately supply the market, the Committee has the authority to recommend intra-seasonal increases, as it has in previous marketing years.

The Committee calculated the minimum salable quantity of Scotch spearmint oil that will be required during the 2020-2021 marketing year (471,029 pounds) by subtracting the estimated salable carry-in on June 1, 2020, (278,971) from the estimated trade demand (750,000). This minimum salable quantity represents the estimated minimum amount of Scotch spearmint oil that will be needed to satisfy estimated trade demand for the coming year. To ensure that the market will be fully supplied, the Committee recommended a 2020-2021 marketing year salable quantity of 838,404 pounds. The recommended salable quantity of 838,404 pounds, combined with an estimated 278,971 pounds of salable quantity carried in from the previous year, will yield a total available supply of 1,117,375 pounds of Scotch spearmint oil for the 2020-2021 marketing year, and will leave an estimated 367,375 pounds of salable Scotch spearmint oil to carry into the 2021-2022 marketing year.

Salable carry-in is the primary measure of excess spearmint oil supply under the Order, as it represents overproduction in prior years that is currently available to the market without restriction. Under volume regulation, spearmint oil that is designated as salable continues to be available to the market until it is sold and may be marketed at any time at the discretion of the owner. Salable quantities established under volume regulation over the last four seasons have exceeded sales, leading to a gradual build of Scotch spearmint oil salable carry-in.

The Committee estimates that there will be 278,971 pounds of salable carry-in of Scotch spearmint oil on June 1, 2020. If current market conditions are maintained and the Committee's projections are correct, salable carry-in will increase to 367,375 pounds at the beginning of the 2021-2022 marketing year. This level is above the quantity that the Committee generally considers favorable (150,000 pounds). However, the Committee anticipates that this higher salable carry-in will be manageable given the expected declining production levels of Scotch spearmint oil. The Committee believes that, given the current economic conditions in the Scotch spearmint oil industry, some Scotch spearmint oil producers will not produce enough oil in the 2020-2021 marketing year to fill all of their base allotment. Therefore, it is anticipated that the actual quantity of Scotch spearmint oil carried into the next marketing year will be less than the quantity calculated above.

Spearmint oil held in reserve is oil that has been produced in excess of a producer's marketing year allotment and is not available to the market in the current marketing year without an increase in the salable quantity and allotment percentage. The oil held in the reserve pool is another indicator of excess supply. Scotch spearmint oil held in the reserve pool, which was completely depleted at the beginning of the 2014-2015 marketing year, has been gradually increasing over the past five years. The Committee reported that 132,984 pounds of Scotch spearmint oil were held in the reserve pool as of May 31, 2019. The Scotch spearmint oil reserve is expected to be about the same at the end of the 2019-2020 marketing year. This quantity of reserve pool oil should be an adequate buffer to supply the market, if necessary, if the industry experiences an unexpected increase in demand.

The Committee recommended an allotment percentage of 38 percent for the 2020-2021 marketing year for Scotch spearmint oil. During its October 16, 2019, meeting, the Committee calculated an initial allotment percentage by dividing the minimum required salable quantity (471,029 pounds) by the total estimated allotment base (2,206,325 pounds), resulting in 21.3 percent. However, producers and handlers at the meeting indicated that the computed percentage (21.3 percent) might not adequately supply the potential 2020-2021 Scotch spearmint oil market demand and may also result in inadequate carry-in for the subsequent marketing year. After deliberation, the Committee increased the recommended allotment percentage to 38 percent. The total estimated allotment base (2,206,325 pounds) for the 2020-2021 marketing year, multiplied by the recommended salable allotment percentage (38 percent), yields 838,404 pounds, which is the recommended salable quantity for the 2020-2021 marketing year.

The 2020-2021 marketing year computational data for the Committee's recommendations is detailed below.

(A) Estimated carry-in of Scotch spearmint oil on June 1, 2020: 278,971 pounds. This figure is the difference between the 2019-2020 marketing year total available supply of 1,028,971 pounds and the 2019-2020 marketing year estimated trade demand of 750,000 pounds (revised down from the original estimate of 805,000 pounds).

(B) Estimated trade demand of Scotch spearmint oil for the 2020-2021 marketing year: 750,000 pounds. This figure was established at the Committee meeting held on October 16, 2019.

(C) Salable quantity of Scotch spearmint oil required from the 2020-2021 marketing year production: 471,029 pounds. This figure is the difference between the estimated 2020-2021 marketing year trade demand (750,000 pounds) and the estimated carry-in on June 1, 2020 (278,971 pounds). This salable quantity represents the minimum amount of Scotch spearmint oil production that may be needed to satisfy estimated demand for the coming year.

(D) Total estimated Scotch spearmint oil allotment base for the 2020-2021 marketing year: 2,206,325 pounds. This figure represents a one-percent increase over the 2019-2020 total actual allotment base of 2,184,480 pounds, as prescribed by § 985.53(d)(1). The one-percent increase equals 21,845 pounds. This total estimated allotment base is revised each year on June 1 in accordance with § 985.53(e).

(E) Computed Scotch spearmint oil allotment percentage for the 2020-2021 marketing year: 21.3 percent. This percentage is computed by dividing the minimum required salable quantity (471,029 pounds) by the total estimated allotment base (2,206,325 pounds).

(F) Recommended Scotch spearmint oil allotment percentage for the 2020-2021 marketing year: 38 percent. This is the Committee's recommendation and is based on the computed allotment percentage (21.3 percent) and input from producers and handlers at the October 16, 2019, meeting. The recommended 38 percent allotment percentage reflects the Committee's belief that the computed percentage (21.3 percent) may not adequately supply the anticipated 2020-2021 marketing year Scotch spearmint oil market demand.

(G) Recommended Scotch spearmint oil salable quantity for the 2020-2021 marketing year: 838,404 pounds. This figure is the product of the recommended salable allotment percentage (38 percent) and the total estimated allotment base (2,206,325 pounds) for the 2020-2021 marketing year.

(H) Estimated total available supply of Scotch spearmint oil for the 2020-2021 marketing year: 1,117,375 pounds. This figure is the sum of the 2020-2021 marketing year recommended salable quantity (838,404 pounds) and the estimated carry-in on June 1, 2020 (278,971 pounds).

For the reasons stated above, the Committee believes that the recommended salable quantity and allotment percentage will adequately satisfy trade demand, will result in a reasonable carry-in for the following year, and will contribute to the orderly marketing of Scotch spearmint oil.

The Committee recommended a Native spearmint oil salable quantity of 1,230,531 pounds and an allotment percentage of 49 percent for the 2020-2021 marketing year. These figures are, respectively, 161,918 pounds and 7 percentage points lower than the levels established for the 2019-2020 marketing year.

The Committee utilized handlers' anticipated sales estimates of Native spearmint oil for the coming year, historical and current Native spearmint oil production, inventory statistics, and international market data obtained from consultants for the spearmint oil industry to arrive at these recommendations.

The Committee anticipates that 2020 production will total 1,493,686 pounds, similar to last year's production but down from 1,694,684 pounds produced in 2016. Committee figures show that total Native spearmint acres remained relatively static and that the estimated yield, at 165.7 pounds per acre, was up from 160.9 pounds per acre in 2017. Sales of Native spearmint oil for the 2017-2018 marketing year spiked to 1,565,515 pounds. Sales for the current marketing year have cooled a bit, but the Committee still estimates sales through the 2019-2020 marketing year of 1,330,000 pounds, which is near the 7-year average.

The Committee expects that 274,277 pounds of salable Native spearmint oil from prior years will be carried into the 2020-2021 marketing year. This amount is up from the 211,828 pounds of salable oil carried into the 2019-2020 marketing year.

Further, the Committee estimates that there will be 1,153,192 pounds of Native spearmint oil in the reserve pool at the beginning of the 2020-2021 marketing year. This figure is 101,237 pounds higher than the quantity of reserve pool oil held by producers in the previous year and is consistent with the gradual increase in reserves that the industry has experienced over the past three marketing years.

The Committee expects end users of Native spearmint oil to continue to rely on Far West production as their main source of high-quality Native spearmint oil, with market demand similar to the past year. A sharp spike in demand for Native spearmint oil was experienced by handlers late in the 2017-2018 marketing year, spurred by the popularity of a new product in the market. This sharp spike in demand caused the remaining available 2017-2018 marketing year salable quantity to be depleted. While sales in the 2020-2021 marketing year are expected to come down from the 2017-2018 levels, the Committee still anticipates demand to be relatively high.

The Committee estimates the 2020-2021 marketing year Native spearmint oil trade demand to be 1,347,042 pounds. This figure is based on input provided by producers at six production area meetings held in mid-October 2019, as well as estimates provided by handlers and other meeting participants at the October 16, 2019 meeting. This figure represents an increase of 17,042 pounds from the previous year's estimate. The average estimated trade demand for Native spearmint oil derived from the producer meetings was 1,347,042 pounds, whereas the handlers' estimates ranged from 1,150,000 to 1,450,000 pounds. The average of Native spearmint oil sales over the last three years is 1,366,094 pounds. The quantity marketed over the most recent full marketing year, 2018-2019, was 1,245,076 pounds. The Committee chose to be slightly conservative in the establishment of its trade demand estimate for the 2020-2021 marketing year to avoid oversupplying the market.

The estimated 2020-2021 marketing year carry-in of 274,277 pounds of Native spearmint oil, plus the recommended salable quantity of 1,230,531 pounds, results in an estimated total available supply of 1,504,808 pounds of oil during the 2020-2021 marketing year. With the corresponding estimated trade demand of 1,347,042 pounds, the Committee projects that 157,766 pounds of oil will be carried into the 2021-2022 marketing year, resulting in a decrease of 116,511 pounds year-over-year. The Committee estimates that there will be 1,153,192 pounds of Native spearmint oil held in the reserve pool at the beginning of the 2021-2022 marketing year. Should the industry experience an unexpected increase in trade demand, oil in the Native spearmint oil reserve pool could be released to satisfy that demand.

The Committee recommended a producer allotment percentage of 49 percent for the 2020-2021 marketing year. During its October 16, 2019 meeting, the Committee calculated an initial allotment percentage by dividing the minimum required salable quantity (1,072,765 pounds) by the total estimated allotment base (2,511,288 pounds), resulting in 42.7 percent. However, producers and handlers at the meeting expressed that the computed percentage of 42.7 percent may not adequately supply the potential 2020-2021 Native spearmint oil market demand or result in adequate carry-in for the subsequent marketing year. After deliberation, the Committee increased the recommended allotment percentage to 49 percent. The total estimated allotment base (2,511,288 pounds) for the 2020-2021 marketing year multiplied by the recommended salable allotment percentage (49 percent) yields 1,230,531 pounds, the recommended salable quantity for the year.

The 2020-2021 marketing year computational data for the Committee's recommendations is further outlined below.

(A) Estimated carry-in of Native spearmint oil on June 1, 2020: 274,277 pounds. This figure is the difference between the revised 2019-2020 marketing year total available supply of 1,604,277 pounds and the revised 2019-2020 marketing year estimated trade demand of 1,330,000 pounds.

(B) Estimated trade demand of Native spearmint oil for the 2020-2021 marketing year: 1,347,042 pounds. This estimate was established by the Committee at the October 16, 2019, meeting.

(C) Salable quantity of Native spearmint oil required from the 2020-2021 marketing year production: 1,072,765 pounds. This figure is the difference between the estimated 2020-2021 marketing year estimated trade demand (1,347,042 pounds) and the estimated carry-in on June 1, 2020 (274,277 pounds). This is the minimum amount of Native spearmint oil that the Committee believes will be required to meet the anticipated 2020-2021 marketing year trade demand.

(D) Total estimated allotment base of Native spearmint oil for the 2020-2021 marketing year: 2,511,288 pounds. This figure represents a one-percent increase over the 2019-2020 total actual allotment base of 2,486,424 pounds as prescribed in § 985.53(d)(1). The one-percent increase equals 24,864 pounds of oil. This estimate is revised each year on June 1, due to adjustments resulting from the bona fide effort production provisions of § 985.53(e).

(E) Computed Native spearmint oil allotment percentage for the 2020-2021 marketing year: 42.7 percent. This percentage is calculated by dividing the required salable quantity (1,072,765 pounds) by the total estimated allotment base (2,511,288 pounds) for the 2020-2021 marketing year.

(F) Recommended Native spearmint oil allotment percentage for the 2020-2021 marketing year: 49 percent. This is the Committee's recommendation based on the computed allotment percentage (42.7 percent) and input from producers and handlers at the October 16, 2019, meeting. The recommended 49 percent allotment percentage is also based on the Committee's belief that the computed percentage (42.7 percent) may not adequately supply the potential market for Native spearmint oil in the 2020-2021 marketing year.

(G) Recommended Native spearmint oil 2020-2021 marketing year salable quantity: 1,230,531 pounds. This figure is the product of the recommended allotment percentage (49 percent) and the total estimated allotment base (2,511,288 pounds). This amount is less than the estimated trade demand for the 2020-2021 marketing year but could be increased as needed through an intra-seasonal increase in the salable quantity and allotment percentage.

(H) Estimated available supply of Native spearmint oil for the 2020-2021 marketing year: 1,504,808 pounds. This figure is the sum of the 2020-2021 recommended salable quantity (1,230,531 pounds) and the estimated carry-in on June 1, 2020 (274,277 pounds).

The Committee's recommended Scotch and Native spearmint oil salable quantities and allotment percentages of 838,404 pounds and 38 percent, and 1,230,531 pounds and 49 percent, respectively, will match the available supply of each class of spearmint oil to the estimated demand of each, thus avoiding extreme fluctuations in inventories and prices. This rule is similar to the regulations issued in prior seasons.

The salable quantities established in this final rule are not expected to cause a shortage of either class of spearmint oil. Any unanticipated or additional market demand for either class of spearmint oil which may develop during the marketing year could be satisfied by an intra-seasonal increase in the salable quantity and corresponding allotment percentage. The Order contains a provision in § 985.51 for intra-seasonal increases to allow the Committee the flexibility to respond quickly to changing market conditions.

Under volume regulation, producers who produce more than their annual allotments during the marketing year may transfer such excess spearmint oil to producers who have produced less than their annual allotment. In addition, on December 1 of each year, producers who have not transferred their excess spearmint oil to other producers must place their excess spearmint oil production into the reserve pool to be released in the future in accordance with market needs and under the Committee's direction.

USDA has reviewed the Committee's marketing policy statement for the 2020-2021 marketing year. The Committee's marketing policy statement, a requirement whenever the Committee recommends volume regulation, meets the requirements of §§ 985.50 and 985.51.

The establishment of salable quantities and allotment percentages in this rule is expected to fully satisfy anticipated market needs. In determining anticipated market needs, the Committee considered historical sales, as well as changes and trends in production and demand. This rule also provides producers with information regarding the amount of spearmint oil that should be produced for the 2020-2021 season to meet anticipated market demand.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 39 producers and 94 producers of Scotch and Native spearmint oil, respectively, in the regulated production area and approximately 8 spearmint oil handlers subject to regulation under the Order. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $30,000,000, and small agricultural producers are defined as those having annual receipts of less than $1,000,000 (13 CFR 121.201).

The Committee reported that recent producer prices for spearmint oil have ranged from $14.00 to $17.00 per pound. The National Agricultural Statistics Service (NASS) reported that the 2018 U.S. season average spearmint oil producer price per pound was $16.80. Multiplying $16.80 per pound by 2017-2018 marketing year spearmint oil utilization of 1,963,028 million pounds yields a crop value estimate of about $33.0 million. Total 2017-2018 spearmint oil utilization, reported by the Committee, was 717,952 pounds and 1,245,076 pounds for Scotch and Native spearmint oil, respectively.

Given the accounting requirements for the volume regulation provisions of the Order, the Committee maintains accurate records of each producer's production and sales. Using the $16.80 average spearmint oil price, and Committee production data for each producer, the Committee estimates that 36 of the 39 Scotch spearmint oil producers and 89 of the 94 Native spearmint oil producers could be classified as small entities under the SBA definition.

There is no third party or governmental entity that collects and reports spearmint oil prices received by spearmint oil handlers. However, the Committee estimates an average spearmint oil handling markup at approximately 20 percent of the price received by producers. Multiplying 1.20 by the 2018 producer price of $16.80 yields a handler free on board (f.o.b.) price per pound estimate of $20.16.

Multiplying this handler f.o.b. price by spearmint oil utilization of 1,963,028 pounds results in an estimated handler-level spearmint oil value of $39.6 million. Dividing this figure by the number of handlers (8) yields estimated average annual handler receipts of about $5.0 million, which is well below the SBA threshold for small agricultural service firms.

Furthermore, using confidential data on pounds handled by each handler, and the abovementioned estimated handler price per pound, the Committee reported that it is not likely that any of the eight handlers had a 2018-2019 marketing year spearmint oil sales value that exceeded the $30 million SBA threshold.

Therefore, in view of the foregoing, the majority of producers of spearmint oil may be classified as small entities and all of the handlers of spearmint oil may be classified as small entities.

This final rule establishes the quantity of spearmint oil produced in the Far West, by class, which handlers may purchase from, or handle on behalf of, producers during the 2020-2021 marketing year. The Committee recommended this action to help maintain stability in the spearmint oil market by matching supply to estimated demand, thereby avoiding extreme fluctuations in supplies and prices. Establishing quantities that may be purchased or handled during the marketing year through volume regulations allows producers to coordinate their spearmint oil production with the expected market demand. Authority for this action is provided in §§ 985.50, 985.51, and 985.52.

The Committee estimated trade demand for the 2020-2021 marketing year for both classes of oil at 2,097,042 pounds and expects that the combined salable carry-in will be 553,248 pounds. The combined required salable quantity is 1,543,794 pounds. Under volume regulation, total sales of spearmint oil by producers for the 2020-2021 marketing year will be held to 2,622,183 pounds (the recommended salable quantity for both classes of spearmint oil of 2,068,935 pounds plus 553,248 pounds of carry-in).

This total available supply of 2,622,183 pounds should be more than adequate to supply the 2,097,042 pounds of anticipated total trade demand for spearmint oil. In addition, as of May 31, 2019, the total reserve pool for both classes of spearmint oil stood at 1,184,939 pounds. Furthermore, that quantity is expected to rise over the course of the 2019-2020 marketing year to 1,308,651. Should trade demand increase unexpectedly during the 2020-2021 marketing year, reserve pool spearmint oil could be released into the market to supply that increase in demand.

The established allotment percentages, upon which 2020-2021 marketing year producer allotments are based, are 38 percent for Scotch spearmint oil and 49 percent for Native spearmint oil. Without volume regulation, producers will not be held to these allotment levels, and could sell unrestricted quantities of spearmint oil.

The USDA econometric model used to evaluate the Far West spearmint oil market estimated that the season average producer price per pound (from both classes of spearmint oil) would decline about $2.10 per pound without volume regulation. The surplus situation for the spearmint oil market that would exist without volume regulation in the 2020-2021 marketing year also would likely dampen prospects for improved producer prices in future years because of the excessive buildup in stocks.

In addition, the econometric model estimated that spearmint oil prices would fluctuate with greater amplitude in the absence of volume regulation. The coefficient of variation, or CV (a standard measure of variability), of Far West spearmint oil producer prices for the period 1980-2018 (the years in which the Order has been in effect), is 25 percent, compared to 49 percent for the 20-year period (1960-1979) immediately prior to the establishment of the Order. Since higher CV values correspond to greater variability, this is an indicator of the price stabilizing impact of the Order.

The use of volume regulation allows the industry to fully supply spearmint oil markets while avoiding the negative consequences of over-supplying these markets. The use of volume regulation is believed to have little or no effect on consumer prices of products containing spearmint oil and will not result in fewer retail sales of such products.

The Committee discussed alternatives to its recommended volume regulation levels for both classes of spearmint oil. The Committee rejected the idea of not regulating any volume for either class of spearmint oil because of the severe, price-depressing effects that will likely occur without volume regulation. The Committee also discussed and considered salable quantities and allotment percentages that were above and below the levels that were ultimately recommended for both classes of spearmint oil. Ultimately, the action recommended by the Committee was to maintain the allotment percentage for Scotch spearmint oil (which will slightly increase the salable quantity) and to decrease both the salable quantity and allotment percentage for Native spearmint oil from the levels established for the 2019-2020 marketing year.

As noted earlier, the Committee's recommendation to establish salable quantities and allotment percentages for both classes of spearmint oil was made after careful consideration of all available information including: (1) The estimated quantity of salable oil of each class held by producers and handlers; (2) the estimated demand for each class of oil; (3) the prospective production of each class of oil; (4) the total of allotment bases of each class of oil for the current marketing year and the estimated total of allotment bases of each class for the ensuing marketing year; (5) the quantity of reserve oil, by class, in storage; (6) producer prices of oil, including prices for each class of oil; and (7) general market conditions for each class of oil, including whether the estimated season average price to producers is likely to exceed parity.

Based on its review, the Committee believes that the salable quantities and allotment percentages established in this rule will achieve the objectives sought. The Committee also believes that, should there be no volume regulation in effect for the upcoming marketing year, the Far West spearmint oil industry will return to the pronounced cyclical price patterns that occurred prior to the promulgation of the Order. As previously stated, annual salable quantities and allotment percentages have been issued for both classes of spearmint oil since the Order's inception. The salable quantities and allotment percentages established herein are expected to facilitate the goal of maintaining orderly marketing conditions for Far West spearmint oil for the 2020-2021 and future marketing years.

Costs to producers and handlers, large and small, resulting from this action are expected to be offset by the benefits derived from a more stable market and increased returns. The benefits of this rule are expected to be equally available to all producers and handlers regardless of their size.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0178, Vegetable and Specialty Crops. No changes are necessary in those requirements as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.

This rule establishes the salable quantities and allotment percentages for Scotch spearmint oil and Native spearmint oil produced in the Far West during the 2020-2021 marketing year. Accordingly, this rule does not impose any additional reporting or recordkeeping requirements on either small or large spearmint oil producers or handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public-sector agencies. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.

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

A proposed rule concerning this action was published in the Federal Register on February 20, 2020 (85 FR 9699). Copies of the proposed rule were also mailed or sent via facsimile to all Far West spearmint oil handlers. The proposal was made available through the internet by USDA and the Office of the Federal Register. A 60-day comment period ending April 20, 2020, was provided for interested persons to respond to the proposal. No comments were received during the comment period. Accordingly, no changes will be made to the rule as proposed.

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

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule will tend to effectuate the declared policy of the Act.

For the reasons set forth in the preamble, 7 CFR part 985 is amended as follows:

SBA posted additional interim final rules on April 3, 2020, April 14, 2020, April 24, 2020, April 28, 2020, April 30, 2020, May 5, 2020, May 8, 2020, May 13, 2020, May 14, 2020, May 18, 2020, May 20, 2020, and May 22, 2020; SBA and Treasury posted an additional interim final rule on May 22, 2020; and the Department of the Treasury posted an additional interim final rule on April 28, 2020. This interim final rule supplements the previously posted interim final rules by providing guidance on additional eligibility requirements for certain telephone cooperatives, and requests public comment.

On March 13, 2020, President Trump declared the ongoing Coronavirus Disease 2019 (COVID-19) pandemic of sufficient severity and magnitude to warrant an emergency declaration for all States, territories, and the District of Columbia. With the COVID-19 emergency, many small businesses nationwide are experiencing economic hardship as a direct result of the Federal, State, tribal, and local public health measures that are being taken to minimize the public's exposure to the virus. These measures, some of which are government-mandated, are being implemented nationwide and include the closures of restaurants, bars, and gyms. In addition, based on the advice of public health officials, other measures, such as keeping a safe distance from others or even stay-at-home orders, are being implemented, resulting in a dramatic decrease in economic activity as the public avoids malls, retail stores, and other businesses.

On March 27, 2020, the President signed the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) (Pub. L. 116-136) to provide emergency assistance and health care response for individuals, families, and businesses affected by the coronavirus pandemic. The Small Business Administration (SBA) received funding and authority through the CARES Act to modify existing loan programs and establish a new loan program to assist small businesses nationwide adversely impacted by the COVID-19 emergency. Section 1102 of the CARES Act temporarily permits SBA to guarantee 100 percent of 7(a) loans under a new program titled the “Paycheck Protection Program.” Section 1106 of the CARES Act provides for forgiveness of up to the full principal amount of qualifying loans guaranteed under the Paycheck Protection Program (PPP). On April 24, 2020, the President signed the Paycheck Protection Program and Health Care Enhancement Act (Pub. L. 116-139), which provided additional funding and authority for the PPP.

Among the categories of entities that are eligible PPP borrowers are business concerns and certain nonprofit organizations described in section 501(c)(3) of the Internal Revenue Code (the Code). This interim final rule addresses the eligibility of mutual or cooperative telephone companies that are described in section 501(c)(12) of the Internal Revenue Code (telephone cooperatives) as PPP borrowers. Existing SBA regulations define “business concern” as “a business entity organized for profit,” subject to certain limitations. 13 CFR 121.105(a)(1). Generally, telephone cooperatives are organizations that are owned and controlled by members who receive telecommunications services from the cooperative. Telephone cooperatives periodically return any excess of net operating revenues over their cost of operations—such as through “capital credits”—to their member-owners. In addition, telephone cooperatives meeting the description of section 501(c)(12) of the Code may be exempt from federal income taxation under section 501(a) of the Code. To qualify for the exemption, a telephone cooperative must receive at least 85 percent of its income each year from its members. The 85 percent member income test is computed annually. A telephone cooperative may be exempt in one year, lose exemption in another year if it does not derive at least 85 percent of its income from members, and become exempt in a third year. Because of their potential tax exemption under section 501(c)(12) of the Code, telephone cooperatives have faced uncertainty about their eligibility to receive PPP loans.

The Administrator, in consultation with the Secretary, understands that telephone cooperatives are unusual in that they may be exempt from taxation or organized under state nonprofit statutes in certain jurisdictions, while they operate as businesses. For example, telephone cooperatives provide telecommunications services and distribute capital credits to their member-owners.

On May 14, 2020, SBA posted an interim final rule providing that certain electric cooperatives, which may also be exempt from taxation or organized under state nonprofit statutes, but which return any excess of net operating revenues over their cost of operations to their member-owners, will be considered to be “a business entity organized for profit” under 13 CFR 121.105(a)(1) for purposes of the PPP and therefore eligible to receive PPP loans, provided they meet other eligibility criteria. See 85 FR 29847. Because telephone cooperatives also operate as businesses, as described below, and to provide certainty to potential PPP applicants, this interim final rule provides that, for purposes of the PPP, a telephone cooperative that is exempt from federal income taxation under section 501(c)(12) of the Code also will be considered to be “a business entity organized for profit” under 13 CFR 121.105(a)(1). As a result, such telephone cooperatives are eligible PPP borrowers, as long as other eligibility requirements are met.

The intent of the Act is that SBA provide relief to America's small businesses expeditiously. This intent, along with the dramatic decrease in economic activity nationwide, provides good cause for SBA to dispense with the 30-day delayed effective date provided in the Administrative Procedure Act. Specifically, it is critical to meet lenders' and borrowers' need for clarity concerning program requirements as rapidly as possible because the last day eligible borrowers can apply for and receive a loan is June 30, 2020.

This interim final rule supplements previous regulations and guidance on an important, discrete issue. The immediate effective date of this interim final rule will benefit lenders so that they can swiftly close and disburse loans to small businesses. This interim final rule is effective without advance notice and public comment because section 1114 of the Act authorizes SBA to issue regulations to implement Title I of the Act without regard to notice requirements. This rule is being issued to allow for immediate implementation of this program. Although this interim final rule is effective immediately, comments are solicited from interested members of the public on all aspects of the interim final rule, including section III below. These comments must be submitted on or before July 13, 2020. SBA will consider these comments and the need for making any revisions as a result of these comments.

The CARES Act was enacted to provide immediate assistance to individuals, families, and organizations affected by the COVID-19 emergency. Among the provisions contained in the CARES Act are provisions authorizing SBA to temporarily guarantee loans under the PPP. Loans under the PPP will be 100 percent guaranteed by SBA, and the full principal amount of the loans and any accrued interest may qualify for loan forgiveness. Additional information about the PPP is available in interim final rules published by SBA and the Department of the Treasury in the Federal Register (85 FR 20811, 85 FR 20817, 85 FR 21747, 85 FR 23450, 85 FR 23917, 85 FR 26321, 85 FR 26324, 85 FR 27287, 85 FR 29845, 85 FR 29842, 85 FR 29847, 85 FR 30835, 85 FR 31357, 85 FR 33004, and 85 FR 33010), collectively, the PPP Interim Final Rules.

Are telephone cooperatives that are exempt from federal income taxation under section 501(c)(12) of the Internal Revenue Code eligible for a PPP loan?

Yes. Telephone cooperatives provide telecommunications services and return any excess of net operating revenues over their cost of operations to their member-owners, such as through capital credits. Accordingly, for purposes of the PPP, the Administrator, in consultation with the Secretary, has determined that a telephone cooperative that is exempt from federal income taxation under section 501(c)(12) of the Internal Revenue Code will be considered to be “a business entity organized for profit” for purposes of 13 CFR 121.105(a)(1). As a result, such entities are eligible PPP borrowers, as long as other eligibility requirements are met. To be eligible, a telephone cooperative must satisfy the employee-based size standard established in the CARES Act, SBA's employee-based size standard corresponding to its primary industry, if higher, or both tests in SBA's “alternative size standard.”  1 The Administrator, in consultation with the Secretary, has determined that this treatment is appropriate to effectuate the purposes of the CARES Act to provide assistance to eligible PPP borrowers, including business concerns, affected by the COVID-19 emergency.

SBA may provide further guidance, if needed, through SBA notices that will be posted on SBA's website at www.sba.gov. Questions on the Paycheck Protection Program may be directed to the Lender Relations Specialist in the local SBA Field Office. The local SBA Field Office may be found at https://www.sba.gov/tools/local-assistance/districtoffices.

This interim final rule is economically significant for the purposes of Executive Orders 12866 and 13563, and is considered a major rule under the Congressional Review Act. SBA, however, is proceeding under the emergency provision at Executive Order 12866 Section 6(a)(3)(D) based on the need to move expeditiously to mitigate the current economic conditions arising from the COVID-19 emergency. This rule's designation under Executive Order 13771 will be informed by public comment.

SBA has drafted this rule, to the extent practicable, in accordance with the standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988, to minimize litigation, eliminate ambiguity, and reduce burden. The rule has no preemptive or retroactive effect.

SBA has determined that this rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various layers of government. Therefore, SBA has determined that this rule has no federalism implications warranting preparation of a federalism assessment.

SBA has determined that this rule will not impose new or modify existing recordkeeping or reporting requirements under the Paperwork Reduction Act.

The Regulatory Flexibility Act (RFA) generally requires that when an agency issues a proposed rule, or a final rule pursuant to section 553(b) of the APA or another law, the agency must prepare a regulatory flexibility analysis that meets the requirements of the RFA and publish such analysis in the Federal Register . 5 U.S.C. 603, 604. Specifically, the RFA normally requires agencies to describe the impact of a rulemaking on small entities by providing a regulatory impact analysis. Such analysis must address the consideration of regulatory options that would lessen the economic effect of the rule on small entities. The RFA defines a “small entity” as (1) a proprietary firm meeting the size standards of the Small Business Administration (SBA); (2) a nonprofit organization that is not dominant in its field; or (3) a small government jurisdiction with a population of less than 50,000. 5 U.S.C. 601(3)-(6). Except for such small government jurisdictions, neither State nor local governments are “small entities.” Similarly, for purposes of the RFA, individual persons are not small entities. The requirement to conduct a regulatory impact analysis does not apply if the head of the agency “certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 5 U.S.C. 605(b). The agency must, however, publish the certification in the Federal Register at the time of publication of the rule, “along with a statement providing the factual basis for such certification.” If the agency head has not waived the requirements for a regulatory flexibility analysis in accordance with the RFA's waiver provision, and no other RFA exception applies, the agency must prepare the regulatory flexibility analysis and publish it in the Federal Register at the time of promulgation or, if the rule is promulgated in response to an emergency that makes timely compliance impracticable, within 180 days of publication of the final rule. 5 U.S.C. 604(a), 608(b). Rules that are exempt from notice and comment are also exempt from the RFA requirements, including conducting a regulatory flexibility analysis, when among other things the agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. SBA Office of Advocacy guide: How to Comply with the Regulatory Flexibility Act, Ch.1. p.9. Accordingly, SBA is not required to conduct a regulatory flexibility analysis.

Discussion

On February 14, 2020, the FAA issued Emergency AD 2020-03-05, which requires disconnecting and removing the headset amplifier and microphone interface circuit card assemblies. This emergency AD was sent previously to all known U.S. owners and operators of these airplanes. This action was prompted by a cabin fire incident that occurred on a Cirrus Model SF50 airplane during ground operations. The operator observed smoke exiting from behind the right sidewall interior panel located behind crew seat 2 and forward of passenger seat 5. The investigation into the incident determined the probable root cause was a malfunction of the headset amplifier (part number (P/N) 38849-001) and the microphone interface (P/N 35809-001) circuit card assemblies for the 3.5 millimeter (mm) audio and microphone jacks. This malfunction can result in an electrical short and subsequent uncontained cabin fire without activating circuit protection.

This condition, if not addressed, could lead to an uncontained cabin fire, resulting in possible occupant injury or loss of airplane control.

The FAA reviewed Cirrus Alert Service Bulletin Number SBA5X-23-03, dated February 7, 2020 (SBA5X-23-03). The service information contains instructions to disconnect and remove the headset amplifier and microphone interface circuit card assemblies for the 3.5 mm audio and microphone jacks. 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 it 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 accomplishing the actions specified in SBA5X-23-03 as described previously.

An unsafe condition exists that required the immediate adoption of Emergency AD 2020-03-50, issued on February 14, 2020, to all known U.S. owners and operators of these airplanes. The FAA found that the risk to the flying public justified waiving notice and comment prior to adoption of this rule because immediate corrective action was necessary to prevent an electrical short and subsequent uncontained cabin fire, which could result in occupant injury or loss of airplane control. These conditions still exist and the AD is hereby published in the Federal Register as an amendment to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13) to make it effective to all persons. Therefore, the FAA finds good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reasons stated above, the FAA finds that good cause exists for making this amendment effective in less than 30 days.

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 Docket Number FAA-2020-0546 and Project Identifier 2020-CE-001-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 the FAA receives, 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 that is received about this final rule.

The FAA estimates that this AD affects 173 airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does control warranty coverage for affected individuals. As a result, the FAA has included all costs in its cost estimate.

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

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

The requirements of the Regulatory Flexibility Act (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 FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.

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:

Discussion

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to remove AD 2011-12-08, Amendment 39-16715 (76 FR 35334, June 17, 2011) (“AD 2011-12-08”) and add a new AD. AD 2011-12-08 applied to Bell Model 205A, 205A-1, 205B, 212, 412, 412CF, and 412EP helicopters with a T/R blade, part number 212-010-750 (all dash numbers), all serial numbers (S/Ns) except those with a prefix of “A” and the number 17061 or larger, and required a one-time inspection of the T/R blade for corrosion and pitting. The NPRM published in the Federal Register on April 11, 2019 (84 FR 14626). The NPRM proposed to retain the requirements of AD 2011-12-08 but remove blades with an S/N prefix of “BH” from the applicability. The proposed actions were intended to correct the unsafe conditions on these products.

Since the FAA issued the NPRM, Bell Helicopter Textron Inc., has changed its name to Bell Textron Inc. This final rule reflects that change and updates the contact information to obtain service documentation.

After the NPRM was published, the FAA received comments from five commenters, four from individuals and one from the European Union Aviation Safety Agency (EASA). The following presents the comments received on the NPRM and the FAA's response to each comment.

Two individual commenters supported the NPRM.

EASA and an individual commenter requested that the FAA provide more information about the unsafe condition and the related service information.

Request: One individual requested details regarding the manufacturing anomalies due to the chemical milling process, how the process affected the manufacturing of other parts, and what manufacturing changes have been made to ensure future problems do not continue.

FAA Response: The FAA agrees to provide additional information. AD 2011-12-08 was issued in 2011 to address manufacturing anomalies in the chemical milling process. Chem-milled steps are applied to all tail rotor metal blade spars. Pits in the spars were found along the step of straight chem-mill cuts. Gas bubbles were trapped on the step of the cut, and this created pits down the length of the step in the radius. To address this, Bell advised its supplier to better agitate the tanks, change the wetting agent, or use vertical racking instead of horizontal. In addition to corrective actions taken by the chem-mill supplier, Bell added inspections for chem-mill defects upon receipt of the spars. No problems have recurred since the AD 2011-12-08 was issued. This superseding AD does not change any of the corrective actions from AD 2011-12-08. This superseding AD only excludes a newly manufactured part that is not subject to the unsafe condition identified in AD 2011-12-08.

Request: EASA requested the FAA make the Bell service bulletins referenced in the NPRM available for review in the AD docket. EASA also asked whether Bell will revise its service bulletins to exclude blades with the prefix “BH.”

FAA Response: Because the Bell service bulletins requested by EASA were incorporated by reference in AD 2011-12-08, they are available on the internet at https://www.regulations.gov in AD Docket No. FAA-2011-0561. In addition, they will be available in the AD docket for this new AD, Docket No. FAA-2018-0866. The FAA is unaware of whether Bell will revise its service bulletins.

One commenter disagreed with the FAA's proposal to supersede the AD by removing T/R blades with an S/N with a prefix of “BH” from the applicability. The commenter stated that these blades should still be inspected by the FAA.

FAA Response: The FAA has determined that the unsafe condition addressed by this AD does not apply to T/R blades with an S/N with a prefix of “BH”. Therefore, those blades have been removed from the applicability. In addition, neither AD 2011-12-08 nor this superseding AD require operators to have the T/R blades inspected by the FAA. Instead, the T/R blades must be inspected using standard requirements under 14 CFR parts 43 and 145.

The FAA has reviewed the relevant information and determined that an unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.

The FAA has reviewed the following Bell Alert Service Bulletins, all Revision A, and all dated December 8, 2009, which specify a one-time inspection of the T/R blades for corrosion or pitting, and repairing or replacing the T/R blade if corrosion, pitting, or other damage is discovered:

• Alert Service Bulletin (ASB) No. 205-09-102, for Model 205A and 205A-1 helicopters;

• ASB No. 205B-09-54, for Model 205B helicopters;

• ASB No. 212-09-134, for Model 212 helicopters;

• ASB No. 412-09-136, for Model 412 and 412EP helicopters; and

• ASB No. 412CF-09-38, for Model 412CF helicopters.

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 estimates that this AD affects 384 helicopters of U.S. Registry. The FAA estimates that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour.

Inspecting a T/R blade takes about 10 work-hours and no parts for an estimated cost of $850 per helicopter and $326,400 for the U.S. fleet.

Repairing a T/R blade takes about 10 work-hours and parts cost $750 for an estimated replacement cost of $1,600 per blade.

Replacing a T/R blade takes about 10 work-hours and parts cost $28,120 for an estimated replacement cost of $28,970 per blade.

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

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

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

For the reasons discussed 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.

Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

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

Background

The final regulations (TD 9394) that are the subject of this correction are under section 1446 of the Code.

As published on April 29, 2008 (73 FR 23069), the final regulations (TD 9394; FR Doc. E8-9356) contained errors that need to be corrected.

Introduction

On February 14, 2019, the EEOC published in the Federal Register a Notice of Proposed Rulemaking (hereinafter “NPRM”) revising primarily 29 CFR 1614.407 (which pertains to a Federal sector complainant's right to file a civil action). 84 FR 4015 (2019). Currently, 29 CFR 1614.407 provides that an individual complainant, or a class agent or claimant, who has filed an administrative complaint alleging a violation of section 717 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-16 (hereinafter “Title VII”); section 15 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 633a (hereinafter “ADEA”); or section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791 (hereinafter “Rehabilitation Act”), may file a civil action within 90 days of receipt of the agency final action unless the complainant has filed an appeal with the EEOC, or 180 days after the complaint was filed if an appeal has not been filed and agency final action has not been taken. See 29 CFR 1614.407(a) & (b). When an appeal is filed with the EEOC, the current rule states that the complainant may file a civil action: (1) Within 90 days of receipt of the EEOC's final decision on the appeal; or (2) 180 days after the filing of the appeal if the EEOC has not issued a decision within that period. See 29 CFR 1614.407(c) & (d).

In Bullock v. Berrien, 688 F.3d 613, 618-19 (9th Cir. 2012), the court ruled that a Federal employee who had filed an administrative appeal with the EEOC could withdraw the appeal and file a civil action in district court within the 90-day period following receipt of the agency final action. The court reasoned that, because Title VII authorizes a Federal sector complainant to file a civil action “[w]ithin 90 days of receipt of notice of [agency] final action,” 42 U.S.C. 2000e-16(c), a complainant is not required to file an appeal with the EEOC before going to court. See Bullock, 688 F.3d at 618.

In accordance with Bullock, the NPRM proposed changing § 1614.407 to state that a complainant may withdraw an administrative appeal and instead file a civil action if the civil action is filed within 90 days of receipt of the notice of agency final action. The NPRM also proposed revising § 1614.407 to state that a complainant may withdraw a request for reconsideration and proceed to court if the civil action is filed within 90 days of receipt of the EEOC's initial appellate decision. The NPRM provided a 60-day comment period for the public.

The EEOC received twenty comments in response to the NPRM. Comments were received from one agency, three organizations, three attorneys or law firms, and thirteen individuals, some of whom identified themselves as Federal or former Federal employees.

Of the thirteen comments submitted by individuals, four were non-responsive, six supported the proposed changes, and three individuals expressed opposition. Two organizations and two attorneys opposed the changes proposed in the NPRM. A law firm also disagreed with the proposed revisions and recommended an alternative approach. The agency and one organization supported the changes. The comments are discussed in more detail below.

One individual argued that filing a civil action without first having to file an appeal would be advantageous to complainants, as it would eliminate the 180-day maximum waiting period if an appeal were filed. Three other individuals concluded that the changes to 29 CFR 1614.407 would provide clarity to district court judges, resulting in uniform rulings that a complainant properly is in court if a civil action is filed within 90 days of receipt of the agency final action.

Another individual and an agency supported the proposed changes, stating that the revisions would eliminate what they regard as a barrier to obtaining prompt relief. The agency noted that the revisions will affect only “the timing of a complainant's ability to exercise their rights; it does not affect the actual exercise of those rights.”

One organization supported the proposed changes because it disagrees with those courts that have dismissed civil actions on the grounds that the complainants failed to exhaust their administrative remedies. It argued that such dismissals place an added burden on complainants, who then must attempt to re-enter the administrative process. It also asserted that the dismissals prevent meritorious cases from being prosecuted, thereby depriving complainants of the relief to which they are entitled. The organization recommended that the EEOC further revise § 1614.407 to state explicitly that a complainant who files a civil action in a manner consistent with the proposed changes has exhausted his or her administrative remedies.

Further, this organization proposed that the EEOC add new sections to the regulation requiring agencies to “give explicit notice to complainants on how to take cases to federal district court . . .” at the end of the investigation, when the complainant is given a choice of requesting a hearing before an EEOC Administrative Judge, or a final decision by the agency. Lacking such notice, it argued, complainants are misled into believing that one must request a hearing before being able to proceed to court.

One individual is opposed to the proposed revisions because she believes the changes will encourage complainants to opt out of the administrative process. She and an organization noted that pursuing a civil action, in contrast to pursuing an administrative appeal, is more formal, expensive, time consuming, and intimidating for pro se plaintiffs. Another individual and that organization characterized the proposed changes as an attempt by the EEOC to reduce its appellate caseload by steering complainants into the court system.

These two commenters further asserted that the EEOC should not change § 1614.407 based solely on a ruling from a single Circuit Court. Another individual argued that, aside from constituting the only Circuit Court to rule that an administrative appeal is optional, the Bullock court ruled the way it did because of the unique set of facts before it—the plaintiff was a former EEOC employee and, in her participation in the EEOC appellate process, she was asking the EEOC to rule against itself. Thus, this individual does not believe Bullock provides a convincing rationale for a rule change. Other commenters agreed that the facts in Bullock were exceptional given that the EEOC was the defendant. For this reason, four commenters do not believe Bullock rests on a solid legal foundation sufficient for other Circuits to find its reasoning persuasive. Their concern is that most of the civil actions filed in reliance on the proposed changes to § 1614.407 will result in dismissals for failure to exhaust administrative remedies.

Two commenters additionally asserted that the proposed changes are at odds with congressional intent, arguing that, in passing section 717 of Title VII, Congress intended complainants to receive relief primarily through the administrative process, thus ensuring that district courts would not be overburdened with adjudicating EEO cases. In a similar vein, two commenters expressed concern that the EEOC has not explained how its proposed changes would further the remedial purposes of Title VII.

One organization expressed concern that, if the proposed changes are made final, the Civil Division of the U.S. Department of Justice (hereinafter “DOJ”) will continue to argue that a civil action filed by a complainant who also has filed an appeal is premature if it is filed less than 181 days after the appeal. Further, with respect to the proposed revisions to 29 CFR 1614.409 (“effect of filing a civil action”), three commenters asked whether the effect of the change will be that the EEOC will not enforce an appellate decision favorable to the complainant in the event the complainant subsequently files a civil action. One commenter recommended revising § 1614.409 to state that an agency is bound by a final action favorable to the complainant, even if the complainant later files an appeal or a civil action.

A commenter, noting that it has represented Federal sector complainants who have traversed what a district court called a “Byzantine” administrative process, opposed the proposed revisions, but mostly on grounds different from those discussed above. It argued that the EEOC's proposed changes to § 1614.407 will render the Federal sector administrative process even more Byzantine. This commenter further maintained that the EEOC's proposed revisions misinterpret section 717(c) of Title VII (which addresses a complainant's right to file a civil action), arguing that, when a complainant has filed an appeal with the EEOC, section 717(c) permits a complainant to file a civil action at any time during the pendency of the appeal, even if that means the complainant files a civil action more than 90 days after issuance of the agency's final action. The commenter further suggested that the Commission should revise § 1614.407 to state that a complainant's withdrawal of an appeal or a request for reconsideration constitutes a final administrative decision that triggers the statutory 90-day period for filing a civil action.

As some of the comments point out, the EEOC was the defendant-agency in Bullock. When the plaintiff initially filed her civil action, the EEOC argued, in part, that because plaintiff had previously filed a timely appeal with the EEOC, she had failed to exhaust her administrative remedies. See Bullock v. Dominguez, 2010 WL 1734964, at *2 (S.D. Cal. April 27, 2010). Relying on section 717(c) of Title VII and 29 CFR 1614.407(c) & (d), the EEOC argued that plaintiff was precluded from filing a civil action until after the Commission issued a decision or 180 days had expired following the filing of her administrative appeal. See id. The district court agreed and dismissed plaintiff's civil action as premature. See id. at *3. Plaintiff appealed to the Ninth Circuit.

In its initial appellate brief, the EEOC reiterated its position that the plaintiff had failed to exhaust her administrative remedies. See Bullock, 688 F.3d at 615. The Ninth Circuit asked for a supplemental briefing, directing the parties to discuss the Ninth Circuit's decision in Bankston v. White, 345 F.3d 768 (9th Cir. 2003). See Bullock, 688 F.3d at 615. 1 In its supplemental brief, the EEOC asserted that Bankston need not be confined to the ADEA context because the EEOC's regulations addressing administrative appeals applied to Title VII, Rehabilitation Act, and ADEA claims equally. See Bullock, 688 F.3d at 618. The EEOC thus argued that the plaintiff in Bullock had exhausted her administrative remedies and the Ninth Circuit agreed. See id., 688 F.3d at 615.

Thereafter, the EEOC reassessed 29 CFR 1614.407 in light of Bullock, and concluded that an appeal to the EEOC is an optional administrative step that a complainant need not take in order to exhaust administrative remedies. The EEOC published the NPRM in accordance with its revised view of the exhaustion issue. Having considered the comments, the EEOC has decided to issue this final rule making only slight changes to the NPRM, as explained below.

The EEOC disagrees that the revised § 1614.407 will encourage complainants to opt out of the administrative process. Nor is it the EEOC's intent to route complainants to state or Federal court. Assuming, as some have suggested, that pursuing a civil action is more formal and expensive than pursuing an administrative appeal, and more difficult for a pro se plaintiff to navigate, these factors will discourage most complainants from opting out of the administrative process. Nevertheless, we believe there is a small percentage of complainants who prefer to pursue their claims in court. The EEOC revised § 1614.407 with these complainants in mind.

When a complainant requests a final decision following the completion of an investigation or fails to reply to the notice that the complainant must request a hearing or a final agency decision, the agency must take final action by issuing a final decision. See 29 CFR 1614.110(b). If the complainant requests a hearing, the agency must take final action by issuing an order notifying the complainant whether the agency will fully implement the decision of the Administrative Judge. See id., § 1614.110(a). In both situations, the agency's final action must contain a notice informing the complainant of, among other things, his or her right to file an appeal with the EEOC or a civil action in Federal district court. See id., § 1614.110(a) & (b). An appeal to the EEOC must be filed within 30 days of receipt of the agency's final action. See id., § 1614.402(a). Under the current rule, a civil action must be filed within 90 days of receipt of the agency's final action “if no appeal has been filed.” Id., § 1614.407(a).

Because a complainant must decide whether to file an appeal within 30 days, the effect of the current regulation is to cause a complainant to decide whether to file a civil action within that same 30-day period, since the current rule allows a complainant to file a civil action only “if no appeal has been filed.” Therefore, in practice, the current rule reduces the statutory 90-day time period in which a complainant may file a civil action to 30 days. The revised rule, on the other hand, will afford the complainant the full 90-day statutory period in which to decide whether to go to court, since the complainant will not forfeit that right if he or she, being undecided, timely files an administrative appeal. The Commission believes that giving a complainant the full 90-day period in which to decide whether to go to court advances, rather than impedes, the remedial purposes of the EEO statutes, and preserves all avenues of recourse a complainant is entitled to pursue.

The EEOC also disagrees with the commenters arguing that the EEOC's reliance on Bullock to support its revisions as set forth in the NPRM will lead to inconsistencies among the courts regarding the exhaustion issue. As some comments accurately state, there have been courts outside the Ninth Circuit that have held that a complainant who withdraws an appeal and files a civil action less than 180 days after filing an appeal has failed to exhaust administrative remedies. The EEOC has examined these decisions and each court rests its ruling upon section 717(c) of Title VII and the EEOC's current § 1614.407.

The EEOC anticipates that these same courts, as well as others, will show deference to the revised § 1614.407 when presented with a plaintiff who has withdrawn an appeal and filed a civil action within 90 days of receipt of the agency's final action. In this regard, while section 717(c) explicitly sets forth when a complainant's right to file a civil action accrues, it is less clear about when exhaustion of administrative remedies occurs. While section 717(c) allows a complainant to appeal an agency's final action to the EEOC, nothing contained in that section requires that the complainant file an appeal. Given that section 717(c) specifies that a complainant can file a civil action “[w]ithin 90 days of receipt of notice of final action taken by a[n] . . . agency . . . ,” section 717(c) cannot be read as creating an exhaustion requirement that a complainant must file an appeal before proceeding in court. Thus, it is the EEOC's position that filing an appeal is an optional, rather than mandatory, administrative step, and that a complainant who initially files an appeal in accordance with the 30-day regulatory deadline may withdraw the appeal and go to court so long as the complainant does so within 90 days of receipt of the agency's final action.

The Commission thus finds merit in one organization's suggestion that a paragraph be added to § 1614.407 stating that a complainant who withdraws an appeal or a request for reconsideration within 90 days of receipt of the agency final action has exhausted his or her administrative remedies. The final rule thus adds a paragraph (g) to § 1614.407 stating that a complainant, class agent, or class claimant who withdraws an appeal or a request for reconsideration and files a civil action within 90 days of receipt of the applicable final action shall be deemed to have exhausted his or her administrative remedies. The Commission finds, however, that the notice requirement suggested by the same commenter is beyond the scope of the NPRM.

Some commenters expressed apprehension that DOJ's Civil Division will not agree with the Commission's revision to § 1614.407, arguing that the Civil Division will seek dismissal of a civil action as premature when filed by a complainant who withdraws an appeal within 90 days of receipt of the agency's final action. Relatedly, one commenter argued that the EEOC's proposed rule should not limit a complainant's right to go to court to the 90-day period following receipt of the agency final action.

Before the EEOC issued the NPRM for public comment, it was circulated to all Federal agencies pursuant to Executive Order 12067. See 84 FR at 4016. Section 1614.407 as it appeared in the draft NPRM circulated to the agencies did not mention a 90-day window in which an appeal could be withdrawn and a civil action filed. Most agencies objected to this omission, stating that the rule as drafted could be read as allowing a complainant to withdraw an appeal any time after it was filed and instead go to court. The agencies suggested that the revised rule should limit the withdrawal period to the 90-day period following receipt of the agency final action, consistent with the ruling in Bullock. See 84 FR at 4016. Most agencies, including DOJ, stated they could support the NPRM if the EEOC revised § 1614.407 as suggested. Thus, before issuing the NPRM for public comment, the EEOC included the 90-day window for filing a civil action, consistent with the agencies' comments. See 84 FR at 4017. In light of the agency comments, the EEOC is confident that DOJ will not seek to dismiss a civil action that is filed within 90 days of the plaintiff's receipt of an agency final action, even if the plaintiff previously filed and withdrew an appeal or a request for reconsideration. With the agency comments in mind, the EEOC declines to follow the suggestion of the one commenter that the right to file a civil action not be limited to the 90-day period following receipt of the agency final action.

Finally, with respect to the revisions made to § 1614.409, it has been the long-standing practice of the Commission to cease processing an appeal when the Commission learns that the complainant has filed a civil action. This practice is based on the EEOC's position that a judicial adjudication of a plaintiff's EEO complaint supersedes an administrative decision addressing the same matter, regardless of the outcome of the decisions. The revisions to § 1614.409 reaffirm this long-standing position. Moreover, the EEOC often is not made aware of the fact that a complainant has filed a civil action, resulting in the Commission issuing a decision on an appeal it should have terminated under current § 1614.409. The Commission believes it is necessary to revise § 1614.409 to state that the Commission will not enforce a decision it issues after the complainant has gone to court since the Commission would not have issued the decision had it known the complainant had filed a civil action. This is why revised § 1614.409 encourages complainants to notify the EEOC when the complainant goes to court, so as to enable the EEOC to conserve resources and avoid issuing decisions that are null and void.

The Commission has complied with the principles in section 1(b) of Executive Order 12866, Regulatory Planning and Review. This rule is not a “significant regulatory action” under section 3(f) of the order, and does not require an assessment of potential costs and benefits under section 6(a)(3) of the order.

This rule is not subject to Executive Order 13771, Reducing Regulation and Controlling Regulatory Cost. Pursuant to guidance issued by the Office of Management and Budget's Office of Information and Regulatory Affairs (April 5, 2017), an “E.O. 13771 regulatory action” is defined as “[a] significant regulatory action as defined in Section 3(f) of E.O. 12866 . . . .” As noted above, this rule is not a significant regulatory action under section 3(f) of E.O. 12866. Thus, this rule does not require the EEOC to issue two E.O. 13771 deregulatory actions.

This rule contains no new information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

The Commission 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 because it applies exclusively to employees and agencies of the Federal Government and does not impose a burden on any business entities. For this reason, a regulatory flexibility analysis is not required.

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

This rule does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Accordingly, for the reasons set forth in the preamble, the Equal Employment Opportunity Commission amends chapter XIV of title 29 of the Code of Federal Regulations as follows:

The Secretary of Veterans Affairs has authority to prescribe regulations that are necessary or appropriate to carry out the laws administered by VA and that are consistent with those laws. 38 U.S.C. 501(a). Section 1977 of title 38, United States Code, authorizes the VGLI program, which provides former members separating from service with the option of converting existing SGLI coverage into renewable, 5-year term group life insurance coverage in amounts ranging from $10,000 to $400,000 based upon the amount of SGLI coverage. See 38 U.S.C. 1967(a), 1968(b)(1)(A), 1977(a), (b). Furthermore, section 1977(b)(5) states that VGLI shall “contain such other terms and conditions as the Secretary determines to be reasonable and practicable which are not specifically provided for in” section 1977.

Pursuant to these statutes, VA promulgated 38 CFR 9.2, which provides the effective dates of VGLI coverage and application requirements. VGLI coverage may be granted if an application, the initial premium, and evidence of insurability are received within 1 year and 120 days following termination of duty. 38 CFR 9.2(c). Evidence of insurability is not required during the initial 240 days following termination of duty. Id.

On March 13, 2020, President Donald J. Trump issued Proclamation 9994 proclaiming that the 2019 novel Coronavirus (COVID-19) outbreak in the United States constitutes a national emergency beginning March 1, 2020. 85 FR 15337 (Mar. 18, 2020). Because of mitigation strategies to flatten the curve of infections and reduce the spread of COVID-19, the United States economy has been severely impacted, with national unemployment claims reaching historic levels. Proclamation 10014 of April 22, 2020, 85 FR 23441 (Apr. 27, 2020); see also Executive Order on Regulatory Relief to Support Economic Recovery (May 19, 2020) (directing agencies to address this economic emergency by rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery). We believe that, as a result of the economic situation, former members, who otherwise may be eligible for VGLI coverage, currently may not be able to afford VGLI coverage or to provide evidence of insurability.

VA is therefore amending 38 CFR 9.2 by adding new subsection (f)(1) to extend by 90 days the time periods under 38 CFR 9.2(c) during which former members may apply for VGLI . Former members who submit a VGLI application and the initial premium within 330 days following separation from service will not be required to submit evidence of insurability. Former members who do not apply for VGLI within 330 days following separation from service may still receive VGLI coverage if they apply for the coverage within 1 year and 210 days following separation from service and submit the initial premium and evidence of insurability. These amendments will ease the financial consequences of the COVID-19 pandemic by extending the time limits for former members to enroll in VGLI, some of whom do not qualify for a private commercial plan of insurance due to their disabilities.

New paragraph (f)(2) establishes a sunset provision for this regulation. Paragraph (f)(1) will not apply one year after the effective date of this rule.

The Secretary of Veterans Affairs finds that there is good cause to dispense with the opportunity for prior comment with respect to this rule and to make the rule effective upon publication. Pursuant to 5 U.S.C. 553(b)(B), the opportunity for advance public comment is not required with respect to a rulemaking when an “agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” The Secretary finds that it is impracticable to delay this regulation for the purpose of soliciting public comment because former members cannot receive VGLI coverage if they do not satisfy the application requirements within the deadlines established by 38 CFR 9.2(c). This 90-day extension is also consistent with extensions private insurers are currently providing for applicants who are currently unable to afford insurance or to submit documents evidencing proof of insurability as a result of the COVID-19 pandemic.

Section 553(d) also requires a 30-day delayed effective date following publication of a rule, except for “(1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule.” Pursuant to section 553(d)(1), the Secretary finds that this interim final rule should be effective immediately upon publication because this is a substantive rule which relieves restrictions, i.e., extends deadlines for VGLI applications. Also, pursuant to section 553(d)(3), the Secretary finds that there is good cause to make the rule effective upon publication because of the impracticability of delaying implementation the regulatory amendment, as discussed above.

For the foregoing reasons, the Secretary of Veterans Affairs is issuing this rule as an interim final rule with an immediate effective date. The Secretary of Veterans Affairs will consider and address comments that are received within 30 days of the date this interim final rule is published in the Federal Register .

This interim final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this interim final rule is not a significant regulatory action under Executive Order 12866.

VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.” This interim final rule is not expected to be an E.O. 13771 regulatory action because this interim final rule is not significant under E.O. 12866.

The Secretary hereby certifies that this interim final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The provisions contained in this interim final rulemaking are applicable to individual Veterans, and applications for VGLI, as submitted by such individuals, are specifically managed and processed within VA and through Prudential Insurance Company of America, which is not considered to be a small entity. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

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

The Catalog of Federal Domestic Assistance number and title for the program affected by this document is 64.103, Life Insurance for Veterans.

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

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Brooks D. Tucker, Acting Chief of Staff, Department of Veterans Affairs, approved this document on June 5, 2020, for publication.

For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR part 9 as follows:

Persons potentially affected by this action include those who seek or might seek permits or approval to dispose of dredged material into ocean waters pursuant to the MPRSA (33 U.S.C. 1401 et seq. ), 33 U.S.C. 1401 to 1445. The EPA's action would be relevant to persons, including organizations, and government bodies seeking to dispose of dredged material in ocean waters offshore of Wilmington, North Carolina. Currently, the U.S. Army Corps of Engineers (USACE) would be most affected by this action. Potentially affected categories and persons include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding persons likely to be affected by this action. For any questions regarding the applicability of this action to a particular person, please refer to the contact person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Section 102(c) of the MPRSA, 33 U.S.C. 1412(c), gives the Administrator of the EPA authority to designate sites where ocean disposal may be permitted. On October 1, 1986, the Administrator delegated the authority to designate ocean disposal sites to the Regional Administrator of the Region in which the sites are located. This cancellation is being made pursuant to that authority.

The EPA Ocean Dumping Regulations promulgated under MPRSA at 40 CFR 228.11, state that modifications in disposal site use which involve withdrawal of disposal sites from use will be made by promulgation pursuant to 40 CFR part 228. This site cancellation is being published as final rulemaking in accordance with 40 CFR 228.11(a) of the Ocean Dumping Regulations, which permits the withdrawal of designated disposal sites from use based upon changed circumstances concerning use of the site.

The cancellation of the designation of the ODMDS, which was designated offshore Wilmington, North Carolina, in 1987 at 40 CFR 228.15(h)(2), is needed as a housekeeping measure. This 1987 Wilmington ODMDS is no longer a suitable disposal option and has no foreseeable need. The 1987 Wilmington ODMDS was replaced by the larger New Wilmington ODMDS, which was designated in 2002 at 40 CFR 228.15(h)(20), due to changes in alignment of the Federal navigation channel, which now cuts through the 1987 ODMDS, and for other applicable reasons. In this action, the EPA also changes the name of the New Wilmington ODMDS to the Wilmington, North Carolina ODMDS.

On November 6, 2019, the EPA issued a draft rule for public review and comment in the Federal Register [84 FR 59744 (Nov. 6, 2019)] which proposed the cancelation of the designation of the 1987 Wilmington ODMDS and renaming the New Wilmington ODMDS to the Wilmington, North Carolina ODMDS. Four comments were received on the proposed rule. Of the four comments, two were not related to this action and do not need responses. Of the two remaining comments, one stated that ODMDS designations seem to trend toward a pattern of moving further and further offshore which the individual attributes to improper long-term planning by the EPA. The second comment stated that “[s]ome evidence showed that shrimpers have complained that wood debris attributed to dredged materials placed within the [1987 Wilmington ODMDS] interfere with shrimping.”

Regarding the issue of long-term planning, the EPA historically designates sites that are environmentally suitable, minimizes the haul distance and associated costs, and maximizes the feasibility and ease for monitoring while considering the known longer-term needs of federally authorized projects. With the recent improvements to the Panama Canal, nearly every port in the southeastern U.S. has proceeded with plans to deepen and widen navigation channels for federally authorized projects, as well as all the associated turning basins and terminal berthing areas. Prudent use of the Agency's resources does not allow for planning beyond the known needs of the major site users at any given time and thus the site designated in 1987 was not designated with adequate capacity to meet the current need.

The EPA understands that the comment regarding wood debris in dredged material and its interference with shrimping is referencing historical events that occurred at shrimping grounds that lie offshore of Frying Pan Shoals. In 1987-1988, shrimp fishermen operating in areas outside the 1987 Wilmington ODMDS had reported fouling and tearing of their nets with roots, tree limbs, and other natural origin wood debris. The fishermen attributed the wood debris to “short dumped” ( i.e., outside the disposal area) ocean disposal of dredged material from the “river” reaches of the Wilmington Harbor navigation channel as well as reaches of the Military Ocean Terminal Sunny Point (MOTSU). To remedy this, the dredging contractor at the time conducted a cleanup of the impacted areas using heavy-duty scallop-style nets for 20 days (approximately 228 tows were made). In an effort to maximize the distance from the disposal location to the shrimp fishing area, between 1988 and 2002, dredged materials from river sources were placed in the most seaward (southern) half of the 1987 Wilmington ODMDS. However, in 1996, fishermen complaints regarding wood debris in areas near the 1987 Wilmington ODMDS were again received. In July 1996, the USACE Wilmington District employed two trawlers to drag heavy-duty nets in the shrimp-trawling areas in order to assess the wood debris problem. This USACE determined that wood debris was present in the traditional shrimping bottoms in sufficient amounts to interfere with shrimping but the USACE was unable to determine the source of the wood debris. The contention that the dredged material placed in the 1987 Wilmington ODMDS was a source of the wood debris impacting shrimpers' towing bottoms was neither confirmed nor denied. Extreme weather events, including hurricanes, periodically pass over the 1987 Wilmington ODMDS and surrounding areas and may naturally redistribute debris on the sea floor, regardless of their source. The 1987 Wilmington ODMDS, currently inactive, has not received dredged material since 2002. There are no plans to remove any wood debris or other material from the 1987 Wilmington ODMDS; rather, the 1987 Wilmington ODMDS footprint will be allowed to continue its transition back to a more natural state as it has been for the past 18 years. Since its designation in 2002, all dredged materials originating from Wilmington Harbor and MOTSU have been placed in the New Wilmington ODMDS. The New Wilmington ODMDS is located further seaward (south) than the 1987 Wilmington ODMDS, and was specifically sited to keep disposal operations and any wood debris that might be associated with the dredged material as far as possible from these shrimping grounds while maintaining the economic feasibility of federally authorized projects that require the transport and disposal of dredged material.

This action complies with applicable Executive orders and statutory provisions as follows:

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). This action does not require persons to obtain, maintain, retain, report, or publicly disclose information to or for a Federal agency.

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., generally requires Federal agencies to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act, 5 U.S.C. 551 et seq., or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business defined by the U.S. Small Business Administration's size regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of this rule, the EPA certifies that this action will not have a significant economic impact on a substantial number of small entities. This rule will not impose any requirements on small entities.

This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531 et seq., for state, local, or tribal governments or the private sector. This action imposes no new enforceable duty on any state, local, or tribal governments or the private sector. Therefore, this action is not subject to the requirements of Sections 202 or 205 of the UMRA. This action is also not subject to the requirements of Section 203 of the UMRA because it contains no regulatory requirements that might significantly or uniquely affect small government entities.

This action does not have federalism implications. It does not have substantial direct effects on States, on the relationship between the Federal Government and States, or on the distribution of power and responsibilities among various levels of government, as specified in Executive Order 13132. Thus, Executive Order 13132 does not apply to this action. The EPA specifically solicited comment on this action from State and local officials.

This action does not have tribal implications, as specified in Executive Order 13175, because the action will not have a direct effect on 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. Thus, Executive Order 13175 does not apply to this action. The EPA specifically solicited additional comments on this action from tribal officials.

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

This action is not subject to Executive Order 13211 (66 FR 28355) because it is not a “significant regulatory action” as defined under Executive Order 12866.

The National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113 (15 U.S.C. 3701 et seq. ), directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus bodies. The NTTAA directs the EPA to provide Congress, through the Office of Management and Budget, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, the EPA is not considering the use of any voluntary consensus standards.

Executive Order 12898 (59 FR 7629) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. The EPA determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action is only cancelling the designation of an ODMDS which is no longer viable.

For the reasons set out in the preamble, The EPA amends chapter I, title 40 of the Code of Federal Register as follows:

On April 21, 2020, NEH published in the Federal Register an interim final rule to adjust the civil penalties found in its New Restrictions on Lobbying regulation (45 CFR part 1168) pursuant to the 2015 Act. ( See 85 FR 22025).

For each regulation that imposes a civil monetary penalty, the 2015 Act requires agencies to: (1) Adjust the level of civil monetary penalties with an initial “catch-up” inflation adjustment through an interim final rulemaking; and (2) make subsequent annual adjustments for inflation. The formula for the amount of a civil monetary penalty inflation adjustment is prescribed by law, as explained in Office of Management and Budget (OMB) Memorandum M-16-06 (February 24, 2016).

NEH's interim final rule, which implemented the initial “catch-up” inflation adjustment and the 2020 inflation adjustment, took effect on April 21, 2020. NEH notified the public that it would accept comments on the interim final rule for thirty (30) days after publication, until May 21, 2020. By that date, NEH did not receive any comments. Therefore, NEH is adopting the interim final rule as final, without change.

This action is not a significant regulatory action and was therefore not submitted to OMB for review. NEH conducted the required assessment under Executive Orders 12866 and 13563 for the interim final rule and this rule finalizes that regulation without change.

This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

This rulemaking does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government.

This rulemaking meets the applicable standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988. Specifically, this rule is written in clear language designed to help reduce litigation.

Under the criteria in Executive Order 13175, NEH evaluated this rule and determined that it will not have any potential effects on federally recognized Indian Tribes.

Under the criteria in Executive Order 12630, this rulemaking does not have significant takings implications. Therefore, a takings implication assessment is not required.

This rulemaking will not have a significant adverse impact on a substantial number of small entities, including small businesses, small governmental jurisdictions, or certain small not-for-profit organizations.

This rulemaking does not impose an information collection burden under the Paperwork Reduction Act. This action contains no provisions constituting a collection of information pursuant to the Paperwork Reduction Act.

This rulemaking does not contain a Federal mandate that will result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year.

This rulemaking will not have a significant effect on the human environment.

This rulemaking will not be a major rule as defined in section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more, a major increase in costs or prices, significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

All information about NEH required to be published in the Federal Register may be accessed at www.neh.gov. The website https://www.regulations.gov contains electronic dockets for NEH's rulemakings under the Administrative Procedure Act of 1946.

To ensure this final rule was written in plain and clear language so that it can be used and understood by the public, NEH modeled the language of this rule on the Federal Plain Language Guidelines.

This is a summary of the Commission's Order, in MB Docket Nos. 19-193 and 17-105, FCC 20-53, adopted and released on April 23, 2020. The full text of this document is available electronically via the FCC's Electronic Document Management System (EDOCS) website https://www.fcc.gov/ecfs/filing/0423300323576 or by downloading the text from the Commission's website at website at http://fjallfoss.fcc.gov/ecfs2/ . (Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.) Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to fcc504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

The Report and Order in document FCC 20-53 contains modified information collection requirements, which are not effective until approval is obtained from OMB. The Commission, as part of its continuing effort to reduce paperwork burdens, has invited the general public to comment on these information collection requirements as required by the PRA (85 FR 34440, June 4, 2020). The Commission will publish a separate document in the Federal Register announcing approval of the information collection requirements. Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4), the Commission previously sought comment on how the Commission might “further reduce the information burden for small business concerns with fewer than 25 employees.” See Amendments of Parts 73 and 74 to Improve the Low Power FM Radio Service Technical Rules, MB Docket Nos. 19-193, 17-105, Notice of Proposed Rulemaking, 84 FR 49205 (Sept. 19, 2019), 34 FCC Rcd 6537 (2019) (NPRM).

The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs that this rule is “non-major” under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of this Report & Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

1. Introduction. On April 23, 2020, the Commission adopted a Report and Order (Order), Amendment of Parts 73 and 74 of the Commission's Rules to Improve the Low Power FM Radio Service Technical Rules; Modernization of Media Regulation Initiative; FCC 20-53, MB Docket Nos. 19-193, 17-105. The Order revises the technical rules governing the Low Power FM (LPFM) service in order to improve LPFM reception and increase flexibility in transmitter siting while maintaining interference protection and the core LPFM goals of diversity and localism.

2. The Commission proposed to modify the LPFM technical rules in an NPRM published at 84 FR 49205 (Sept. 19, 2019). The rule changes adopted in the Order modify the rules in four main ways: (1) Expanding the permissible use of directional antennas; (2) expanding the definition of minor change applications for LPFM stations; (3) allowing LPFM stations to own FM boosters; and (4) permitting LPFM and Class D FM stations operating on the FM reserved band (channels 201 to 220) reserved band (channels 201 to 220) to propose facilities short-spaced to television stations operating on channel 6 (TV6) with the consent of the potentially affected stations. With respect to TV6, the Order also establishes an interim process for reserved channel LPFM, noncommercial educational (NCE) FM, Class D (10 watt) FM, and FM translator stations to request waivers of TV6 protections upon showing of no interference, until the Commission further addresses TV6 protection requirements in a separate proceeding. The Order also adopts several other rule revisions and clarifications. Specifically, the Order allows co-located LPFM stations to share Emergency Alert System decoders; clarifies silent station notification requirements; affirms that LPFM transmitters must be certified; and makes small, non-substantive wording changes to the rules. The goal of the Order is to provide LPFM stations with greater flexibility, to improve their service, to remove regulatory burdens, and to continue efforts to modernize media regulations.

3. Directional Antennas. The Commission amends § 73.816 of its rules (Rules) to expand the optional use of directional antennas in the LPFM service, including custom-designed models. In response to concerns by some full-power broadcasters about potential interference to their stations from directional LPFM antennas, the Order requires LPFM stations using directional antennas to submit proof of performance studies with their license applications to verify proper installation and operation. However, in response to concerns of LPFM stations that proof studies are costly and sometimes unnecessary, the Order exempts three types of proposals that have other, existing interference protections. The Commission expects that expanded use of directional antennas would primarily assist LPFM licensees constructing stations near the borders with Canada and Mexico, and exempts such applications from the proof of performance requirement because existing international agreements contain provisions for interference remediation.

4. Redefine Minor Changes. The Order amends § 73.870 to expand the definition of a “minor” LPFM facility change. An LPFM station making a “minor” change to its transmitter site may relocate without awaiting the opening of a filing window. Prior to the rule change, LPFM modifications qualified as minor if they did not exceed 5.6 kilometers, based on the fact that LPFM stations typically have 60 dBu service contours with a radius of slightly more than 5.6 kilometers and that a station moving 5.6 kilometers would, thus, continue to serve at least part of the same area. The Order recognizes that because the contours of two such facilities can also be expected to overlap at double that distance (11.2 kilometers), LPFM site changes should be allowed up to 11.2 kilometers, or up to any greater distance that would result in overlapping 60 dBu service contours between the existing and relocated facilities. This approach will provide LPFM stations more opportunities to relocate, provided that the relocated station would continue to serve part of the area served by the existed station.

5. Cross-Ownership of FM Booster Stations. The Commission amends § 73.860 to allow cross-ownership of LPFM stations and FM boosters. Generally, LPFM licensees may not own non-LFPM stations. There is, however, a limited exception allowing non-Tribal LPFM licensees to operate up to two FM translator stations if they meet certain requirements. The amendment to § 73.860 establishes guidelines for potential booster use by LPFM stations in lieu of use of an FM translator. Under the revised rule, an LPFM station can rebroadcast its signal on up to two FM translators, up to two FM boosters, or one of each, provided that the LPFM station's service area must overlap that of a co-owned FM translator, and must entirely encompass that of a co-owned booster. Booster stations could receive the signal of the commonly-owned LPFM station by any means authorized in § 74.1231(i), the rule that applies to all FM booster stations. Use of FM boosters may improve LPFM reception in areas with irregular terrain.

6. Protecting TV Channel 6 Television Stations. The Commission defers to a separate proceeding whether to eliminate entirely the requirements that LPFM, Class D, NCE FM, and FM translator stations on the FM reserved band protect television stations operating on adjacent television channel 6 (TV6). The Commission will be in a better position to reach an informed decision on TV6 issues when there is a more developed record about what impact, if any, eliminating TV6 protections would have once all television stations have transitioned from analog to digital, an ongoing process that will not be complete until July 13, 2021. Consistent with the Commission's proposal to grant some earlier relief, the Order amends §§ 73.825 and 73.512 to exempt reserved band LPFM and Class D applicants from TV6 protection requirements where the applicant provides an agreement indicating the concurrence of all potentially affected TV6 stations. That revision will afford LPFM and Class D applicants the same opportunity for exemption that currently exists for NCE FM and FM translator applicants. Also, until the Commission issues a TV6 decision in a separate proceeding, the Commission will consider waiver requests from LPFM, Class D, NCE FM, and FM translator applicants seeking to construct facilities that are short-spaced to TV6. Applicants will be required to certify that they served the application and waiver request on the affected TV6 station. The Commission will review these waiver requests and any petitions to deny and informal objections on a case-by-case basis and grant such requests if the applicant demonstrates no interference.

7. Miscellaneous Issues. The Order makes several additional changes and rejects others. The Order retains the requirement that LPFM stations participate in the Emergency Alert System (EAS) but modifies § 11.52(c) to allow shared EAS decoder use by LPFM stations that are co-located but not co-owned. LPFM licensees seeking to share a decoder must enter into a written agreement that ensures that each has access to the co-located equipment; and acknowledges that each party to the agreement remains fully and individually responsible for compliance with all EAS rules and any EAS violations involving the shared equipment.

8. The Order modifies § 73.850 to clarify that LPFM stations, like all broadcast stations, must notify the Commission if they are silent 10 days and seek consent to remain off the air for 30 days or more. Such notifications allow the Commission to assist stations return to the air before their licenses expire as a matter of law as a result of the extended silence. The Order also makes a non-substantive change to § 73.810, the rule governing LPFM third-adjacent channel interference, so that its language will track changes to FM translator rules made in another proceeding, thereby clarifying that LPFM stations and FM translator stations must protect the same stations. Finally, the Order eliminates repetitive language from § 73.871(c) concerning “minor” amendments and removes an outdated web page address from § 74.1290.

9. The Commission rejects several additional proposals from LPFM organizations. First, the Commission declines to increase the maximum power of LPFM stations from 100 watts to 250 watts. The Commission had tentatively rejected a power increase proposal in the NPRM, as inconsistent with the Local Community Radio Act (LCRA) and with the simple design of the LPFM service. Commenters submitted two revised power-increase proposals but the Commission found that the first did not fully solve the LCRA/complexity issues and that the second was submitted too late to be considered in the current proceeding.

10. The Order also declines to impose any new requirements on stations hosting radio reading services for the blind. LPFM applicants sought such requirements so that the Commission might compile lists of such stations that LPFM applicants must protect, but the Commission stated that the accuracy of any such list would be short-lived and that other resources exist for obtaining the same information. The Order further rejects a commenter suggestion to allow LPFM stations to protect FM translators in the same way that FM translators protect LPFM stations, i.e., with contour protections and interference remediation requirements. Such a change would alter the simplicity of LPFM licensing.

11. The Commission declines to alter the § 73.1660(a) requirement that LPFM transmitters be certified, i.e., approved by the Commission based on data that is generally submitted by the equipment manufacturer. LPFM transmitters must be specifically certified for LPFM use because not all equipment is suitable to operate at the lower parameters in the LPFM service. The Commission also rejects a suggestion that LPFM stations be permitted to shorten their call signs by dropping the “-LP” suffix. The suffix is important for official Commission purposes because it allows anyone who wishes to contact the Commission about the station's operations to readily ascertain the station's identity, in a format unique to that facility, and to generate information about the correct station from the Commission's online databases.

1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA) an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM to this proceeding. See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 847 (1996). The SBREFA was enacted as Title II of the Contract With America Advancement Act of 1996 (CWAAA). The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The Commission received one comment referencing language in the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA. See 5 U.S.C. 604.

2. This Report and Order adopts several rule changes that are intended to improve the public's reception of Low Power FM (LPFM) broadcast station signals and to provide greater flexibility to LPFM broadcasters. Specifically, in the Report and Order the Commission adopts new rules and procedures to: (1) Expand the class of LPFM licensees able to use directional antennas and allows LPFM use of antennas beyond off-the-shelf models; (2) allows LPFM and Class D stations to, like FM translators and full-service FM stations operating on Channels 201 to 220 (reserved band) not protect television stations operating on Television Channel 6 if they obtain concurrence from the TV6 station, or alternatively to request a waiver of the requirement; (3) redefine a “minor change” for LPFM stations as one which either: (a) Does not exceed 11.2 kilometers (doubling the simple standard currently in use); or (b) involves overlapping 60 dBu contours of the station's own existing and proposed facilities (a new standard that would generally be used by stations unable to meet the 11.2 kilometer distance and that would be more costly because it would require an engineering study); (4) permit LPFM stations to retransmit LPFM signals over booster stations (which amplify and reradiate the signal) as a substitute for currently permissible use of FM translators (which retransmits the signal on a different channel without amplification); (5) allow co-located LPFM stations to reduce operating costs by sharing a single Emergency Alert Service (EAS) decoder; (6) update LPFM-related rules in Parts 73 and 74 to make non-substantive changes to conform the rule governing LPFM third-adjacent channel interference, remove repetitive language and outdated information; and (7) require that LPFM stations, like all other broadcast stations, must notify the Commission if they stop broadcasting for ten days and request authority to remain off-air for longer than 30 days. The new rules and procedures are designed to provide stations with more options to relocate and to improve their signals by having the opportunity to use more sophisticated equipment. These changes may improve the public's ability to receive signals from low-powered stations, especially in areas with irregular terrain and near international borders. The changes may also provide LPFM applicants greater flexibility in identifying initial and modified transmitter locations. The Commission's objectives are to improve LPFM reception and increase flexibility in LPFM siting while protecting primary stations and pre-existing secondary stations from interference and maintaining the core LPFM goals of diversity and localism.

3. Las Vegas Public Radio Inc. (LVPR), licensee of KIOF-LP, Las Vegas, Nevada, filed comments citing to the IRFA's recognition that LPFM stations are small entities. LVPR's primary concern is that the Corporation for Public Broadcasting (CPB) has denied its yearly applications for Community Service Grant funding. LVPR characterizes CPB's actions as “anti-competitive business practices” that favor “dominant” full-power NCE FM stations over smaller LPFM stations. LVPR contends that the IRFA's classification of LPFM stations as small businesses is consistent with that argument. See LVPR Comments at 2 (rec. Aug. 22, 2019); LVPR Reply at 2 (rec. Sept. 16, 2019); see also LVPR Further Comments at 1-2 (rec. Nov. 5, 2019). The Commission neither provides financial support for broadcasters nor participates in the CPB funding process. LVPR's concern is not related to how the Commission's proposed rules would affect small entities and, therefore, is beyond the scope of this proceeding. LVPR also argues that the Commission's tentative decision not to increase the 100-watt maximum EFR of LPFM stations will prevent business growth. LVPR Comments at 2 (rec. Aug. 27, 2019); LCPR Comments at 2 (rec. Aug. 29, 2019). The reasoning behind the Commission's decision on this matter is fully discussed in section III(F) of the Report and Order. See Report and Order, supra at paras. 36-41.

4. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. 5 U.S.C. 604(a)(3). The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

5. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. 5 U.S.C. 603(b)(3). The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” Id. section 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. Id. section 601(3) (incorporating by reference the definition of “small business concern” in 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register .” Id. section 601(3). A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Id. section 632. Application of the statutory criteria of dominance in its field of operation and independence are sometimes difficult to apply in the context of broadcast television. Accordingly, the Commission's statistical account of television stations may be over-inclusive.

6. The new rules will apply primarily to applicants, permittees, and licensees within the LPFM service. Because LPFM stations operate on the same spectrum as FM translator stations but under different technical requirements, the changes to the LPFM requirements could have a secondary impact on FM translator applicants and licensees. Specifically, the rule changes may enable LPFM stations to operate in more locations, making it necessary for subsequent FM translator applicants to protect those additional locations. Although the Commission is deferring action on a proposal to eliminate the requirement that radio stations in the FM reserved band protect adjacent television stations operating on Television Channel 6 (TV6), it is reducing the burden on small businesses by entertaining requests for waiver of this requirement. Below, we provide a description of these small entities, as well as an estimate of the number of such small entities, where feasible.

7. Low Power FM Stations. The Report and Order make relatively small rule adjustments that will primarily affect licensees and potential licensees of LPFM stations. LPFM stations are classified as radio broadcast stations. Business concerns included in this industry are those primarily engaged in broadcasting aural programs by radio to the public. See 13 CFR 121.201, NAICS Code 515112. The SBA defines a radio broadcast station as a small business if such station has no more than $41.5 million in annual receipts. Id. Given the nature of the LPFM service, in which eligibility is limited to non-profit organizations based in the community (typically small, volunteer-run groups), governments, and tribal applicants, we will presume that all LPFM licensees and applicants qualify as small entities under the SBA definition. 47 CFR 73.853, 73.860.

8. While the U.S. Census provides no specific data for these stations, the Commission has estimated the number of licensed low power FM stations to be 2,169. Broadcast Station Totals as of December 31, 2019, FCC News Release (rel. Jan. 3, 2020) ( Broadcast Station Totals ), https://docs.fcc.gov/public/attachments/DOC-361678A1.pdf . This estimate may overstate the number of potentially affected licensees because existing LPFM stations that do not seek to modify their facilities would not be affected. The estimate may also be an overstatement because some of the proposals would affect only stations to be located in particular geographic regions (directional antenna use near borders with Canada and Mexico), in certain topography (booster station use to overcome terrain obstacles), or on certain channels (because TV6 protections do not apply to LPFM stations operating on spectrum other than FM Channels 201 to 220). With respect to applicants in future filing windows, we anticipate that we will receive a number of applications similar to past filing windows and that all applicants will qualify as small entities. The last LPFM filing window in 2013 generated approximately 2,827 applications.

9. NCE FM Radio Stations. The potential waiver of TV6 protection policies applies to reserved band NCE FM radio broadcast licensees, and potential licensees of NCE FM radio service. This Economic Census category “comprises establishments primarily engaged in broadcasting aural programs by radio to the public.” U.S. Census Bureau, 2012 NAICS Definitions, “515112 Radio Stations,” at http://www.census.gov/cgi-bin/sssd/naics/naicsrch . This category description continues: “Programming may originate in their own studio, from an affiliated network, or from external sources.” The SBA has created the following small business size standard for this category: Those having $41.5 million or less in annual receipts. 13 CFR 121.201; NAICS code 515112. Census data for 2012 show that 2,849 firms in this category operated in that year. U.S. Census Bureau, Table No. EC0751SSSZ4, Information: Subject Series—Establishment and Firm Size: Receipts Size of Firms for the United States: 2012 (515112), http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ4&prodType=table . Of this number, 2,806 firms had annual receipts of less than $25 million, and 43 firms had annual receipts of $25 million or more. Id. Because the Census has no additional classifications that could serve as a basis for determining the number of stations whose receipts exceeded $41.5 million in that year, we conclude that the majority of radio broadcast stations were small entities under the applicable SBA size standard. In addition, the Commission has estimated the number of NCE FM radio stations to be 4,135. Broadcast Station Totals at 1. Because NCE licensees must be non-profit, we will presume that all are small entities.

10. FM Translator Stations. The changes adopted herein will affect licensees of FM translator stations, as well as potential licensees in these stations. The same SBA definition that applies to radio stations applies to FM Translator stations. As noted, the SBA has created the following small business size standard for this category: Those having $41.5 million or less in annual receipts. 13 CFR 121.201, NAICS Code 515112. In addition, as of December 31, 2019, there were a total of 8,182 FM translator and FM booster stations. Broadcast Station Totals at 1. We anticipate that in future FM Translator filing windows we will receive a number of applications similar to past filing windows and that all applicants will qualify as small entities. The 2003 FM translator filing window generated approximately several hundred applications from NCE applicants.

11. Channel 6 Television Stations. The Report and Order modifies the LPFM rules to specify that LPFM and Class D (10 watt) FM stations can propose operations that do not fully protect TV6 stations if the TV6 station concurs. Such language already exists for other types of reserved band FM stations. Thus, the Report and Order would affect Television Broadcasting firms on TV6. This economic Census category “comprises establishments primarily engaged in broadcasting images together with sound. These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public.” U.S. Census Bureau, 2012 NAICS Code Economic Census Definitions, https://www.census.gov/cgi-bin/sssd/naics/naicsrch . The SBA defines Television Broadcasting firms as small businesses if they have $41.5 million or less in annual receipts. 13 CFR 121.201; NAICS code 515120. The 2012 economic Census reports that 751 television broadcasting firms operated during that year. Of that number, 656 had annual receipts of less than $25 million per year. Based on that Census data we conclude that a majority of firms that operate television stations are small. Approximately nine full-power television stations and about 117 LPTV and TV translator stations (54 analog and 63 digital) currently operate on Channel 6. Ten additional low power television stations that were displaced by an Incentive Auction process hold permits to move to Channel 6 in the future, but those operations will be digital rather than analog. We will presume that all of these Channel 6 television stations are small businesses.

12. The rule changes adopted in the Report and Order will, in some cases, impose different reporting requirements on LPFM applicants for new, modified, and/or licensed but silent facilities. Applicants seeking modifications will be able to demonstrate that their proposals are “minor” by submitting a different type of showing as an alternative to the current distance-based requirement, which will remain available. We expect that the alternative, while more costly, will enable more organizations to apply for authority to modify their facilities without having to wait for a filing window. LPFM stations that choose to operate co-owned FM boosters would include the booster on bi-annual ownership reports. We expect this additional burden with respect to ownership reports to be minimal because LPFM stations would generally not operate a booster unless they are experiencing unique terrain issues. An LPFM permittee choosing to use a directional antenna not subject to an exception would submit a proof of performance study with its application for a covering license, a safeguard that ensure that the equipment is operating properly and would not cause interference. We expect this additional burden concerning directional antennas to be minimal because it will affect only a small portion of LPFM applicants. It is likely that the new directional antenna option will be used primarily by those constructing stations near the borders with Canada and Mexico to comply with bilateral agreements that already contain interference remediation provisions. Licensed LPFM stations that limit or discontinue operations would have to notify the Commission by the tenth day and request authority for the any limited or discontinued operations exceeding 30 days. The notification could be accomplished by a brief letter. The request for authority exceeding 30 days can be done by letter or brief electronic submission. We expect this additional burden concerning limited or discontinued operations to affect only a small portion of LPFM licensees, i.e., those experiencing significant technical difficulties lasting at least ten or thirty days, respectively. LPFM stations generally already file such requests as a matter of practice, because such information is explicitly required for other broadcast stations.

13. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 5 U.S.C. 603(c)(1)-(c)(4).

14. The rules adopted herein are intended to assist LPFM broadcast stations and applicants, which we presume are all small entities, by providing them with additional options that could increase coverage and choice of sites. For example, doubling the distance that a station can move from its existing site, as a “minor” change will allow the station to consider additional siting options. Allowing stations near international borders to use directional antennas could increase coverage in the direction away from the border while complying with international agreements that limit coverage close to the border. The rules enable LPFM organizations: (1) To use directional antennas including custom and composite antennas; (2) to double (from 5.6 kilometers to 11.2 kilometers) the distance that an LPFM station can move as a “minor change” without awaiting an application filing window or, alternatively, to demonstrate contour overlap between their existing and proposed facilities; (3) to retransmit LPFM signals over booster stations; and (4) to use a single EAS decoder with a co-located LPFM station. The Commission would relieve LPFM and Class D (10 watt) reserved band FM radio stations of the requirement to protect television stations operating on TV6 if the TV6 station concurs. The Commission recognizes that the TV6 stations are also small entities. We believe that there will not be any negative impact on such television stations because the option to concur would be voluntary. The Commission invited and has considered alternatives including alternatives to minimize the burden on small businesses. The majority of the commenters supported the Commission's proposals. The Report and Order adopts one commenter-suggested alternative by doubling the distance that meets the definition of a “minor change” from 5.6 to 11.2 kilometers. That alternative will make it easier for small entities to benefit from the new definition by using a simple, enlarged distance standard that does not require a more costly engineering analysis. With respect to directional antennas the Commission adopted, in part, a commenter suggestion to limit the situations in which directional LPFM facilities would be required to submit a proof of performance. In most situations, the Commission will not require proofs, which can be costly. It will, however, require proof of performance studies for LPFM directional antennas designed to protect other broadcast stations from interference thereby making sure that the antennas are properly functioning before allowing them to operate. The Commission noted that requiring such proofs before licensure would have a benefit to LPFM applicants because it would be unnecessary for them to become involved in interference disputes.

15. The Commission will send a copy of this Report and Order, including this FRFA, in a report to Congress and the Government Accountability Office pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. See id. section 801(a)(1)(A). In addition, the Commission will send a copy of the Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register . See id. section 604(b).

16. Accordingly, it is ordered that, pursuant to the authority contained in sections 1, 4(i), 4(j), 301, 303, 307, 308, 309, 316, and 319 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 301, 303, 307, 308, 309, 316, and 319, as well as the Local Community Radio Act of 2010, Public Law 111-371, 124 Stat. 4072 (2011), this Report and Order is adopted and will become effective 30 days after publication in the Federal Register .

17. It is further ordered that parts 11, 73, and 74 of the Commission's Rules are amended as set forth in the Final Rules and the rule changes to §§ 11.52, 73.807, 73.810, 73.825, 73.860, 73.871, 74.1201, 74.1263, 74.1283, and 74.1290 adopted herein will become effective 30 days after the date of publication in the Federal Register .

18. It is further ordered that the rule changes to §§ 73.816, 73.850, and 73.870, which contain new or modified information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act, will become effective on the date specified in a document published in the Federal Register announcing such approval.

19. It is further ordered that, should no petitions for reconsideration or petitions for judicial review be timely filed, MB Docket No. 19-193 shall be terminated , and its docket closed .

20. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

21. It is further ordered that the Commission shall send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 11, 73, and 74 as follows:

Why we need to publish a rule. Under the Act, a species warrants protection through listing if it is endangered or threatened. Conversely, a species may be removed from the Federal List of Endangered and Threatened Wildlife (List) if the Act's protections are determined to be no longer required based on extinction, recovery, or the listed entity not meeting the statutory definition of a species. Removing a species from the List can be completed only by issuing a rule. This rule removes the Borax Lake chub ( Gila boraxobius ) from the List due to recovery.

The basis for our action. We have determined that the Borax Lake chub is no longer at risk of extinction now nor likely to become so in the foreseeable future, and the following criteria for delisting described in the species recovery plan have been met or exceeded:

• The presence of a naturally reproducing population of Borax Lake chub in Borax Lake that is free of exotic species;

• Permanent protection of the 160-acre (65-hectare) parcel of land surrounding and including Borax Lake;

• Removal of threats to subsurface waters from geothermal energy exploration or development;

• Reestablishment of ponds and natural marshes adjacent to Borax Lake in order to create more chub habitat;

• A viable, self-sustaining population of Borax Lake chub;

• Permanent protection of a second 160-acre (65-hectare) parcel of land to the north of Borax Lake;

• Withdrawal of Borax Lake waters from appropriation ( i.e., diversion and use under water right);

• Establishment of a fence around the 640-acre (259-hectare) critical habitat area to prevent vehicle entry;

• Establishment of monitoring programs to survey habitat and fish population status; and

• Lack of any new threats to the species or ecosystem for 5 consecutive years.

We consider the Borax Lake chub to be a conservation-reliant species, which we consider to be a species that has generally met recovery criteria but requires continued active management to sustain the species and associated habitat in a recovered condition (see Scott et al. 2005, entire). To address this management need, the Bureau of Land Management (BLM), the Oregon Department of Fish and Wildlife (ODFW), and the Service developed, and are implementing, the Borax Lake chub cooperative management plan (CMP) (USFWS et al. 2018), and are committed to the continuing long-term management of this species.

Peer review and public comment. We evaluated the species' needs, current conditions, and future conditions to support our February 26, 2019, proposed rule. We sought comments from independent specialists to ensure that our determination is based on scientifically sound data, assumptions, and analyses. We invited these peer reviewers to comment on the draft post-delisting monitoring plan. We considered all comments and information we received during the public comment period on the February 26, 2019, proposed rule to delist the Borax Lake chub and the draft post-delisting monitoring plan when developing this final rule.

On May 28, 1980, we published a rule in the Federal Register to emergency-list the Borax Lake chub (as Gila sp.) as endangered and to designate critical habitat for the species (45 FR 35821). The emergency rule provided protection to this species for 240 days, until January 23, 1981.

On October 16, 1980, we proposed to list the Borax Lake chub (as Gila boraxobius ) as an endangered species and to designate critical habitat (45 FR 68886). The distribution of the Borax Lake chub is limited to Borax Lake, its outflow, and Lower Borax Lake in Harney County, Oregon. The proposed listing action was taken because proposed geothermal development in and around Borax Lake, and human modification of the lake, threatened the integrity of the species' habitat and, hence, its survival.

On October 5, 1982, we published a final rule in the Federal Register (47 FR 43957) listing the Borax Lake chub (as Gila boraxobius ) as endangered and designating areas totaling 640 acres (ac) (259 hectares (ha)) in and around Borax Lake as critical habitat for the Borax Lake chub. A recovery plan for the species was completed on February 4, 1987 (USFWS 1987).

Our most recent 5-year review of the status of Borax Lake chub, completed on August 23, 2012 (USFWS 2012), concluded that the Borax Lake chub's status had substantially improved since listing, and that the Borax Lake chub no longer met the definition of an endangered species, but may meet the definition of a threatened species throughout all of its range, under the Act (16 U.S.C. 1531 et seq. ); the review recommended the Borax Lake chub be reclassified from endangered to threatened ( i.e., “downlisted”). However, this final rule, which is based on information contained in the 2012 status review as well as additional information that subsequently became available, removes the Borax Lake chub from the List ( i.e., “delists” the species) due to recovery.

On February 26, 2019, we published a proposed rule in the Federal Register (84 FR 6110) to delist the Borax Lake chub on the basis of recovery. In that document, we requested information and comments from the public and peer reviewers regarding the proposed rule and the draft post-delisting monitoring plan for the Borax Lake chub.

At the time of listing, the genus Gila was considered to include three subgenera: Gila, Siphateles (including the Borax Lake chub), and Snyderichthys (Uyeno 1961, pp. 84-85; Bailey and Uyeno 1964, pp. 238-239). Since our final listing determination (47 FR 43957; October 5, 1982), analysis of lepidological (scale morphology and arrangement) and osteological (structure and function of bones) characters (Coburn and Cavender 1992, pp. 344-347) and mitochondrial ribosomal RNA sequences (Simons and Mayden 1997, p. 194; 1998, p. 315; Simons et al. 2003, pp. 71-76) have indicated that the genus Gila in the broad sense was not descended from a common ancestor not shared with other groups. Therefore, the three subgenera were elevated to genera. The American Fisheries Society (Page et al. 2013, p. 78) has also followed this approach and classified the Borax Lake chub within the genus Siphateles. Consequently, the current scientific name of the Borax Lake chub is Siphateles boraxobius. This taxonomic revision changed the name of the listed entity from Gila boraxobius to Siphateles boraxobius, but did not alter the description, distribution, range, or listing status of the species from what it was at the time of listing. Based on this revision, we consider Siphateles boraxobius to be the most appropriate scientific name for this taxon. Because we are removing the species from the List, we are not amending the species' scientific name on the List, but relevant documents, such as the post-delisting monitoring plan for the species, will reflect this usage.

A recent genetic assessment by Smith et al. (2019, pp. 497-499) affirms genetic divergence between Alvord chub ( Siphateles alvordensis ) and Borax Lake chub approximately 6,000 to 9,000 years ago, presumably as Lake Alvord dried at the end of the last period of glaciation, isolating Borax Lake. The analysis further supports the status of these two as distinct species consistent with past studies of morphological data (Williams and Bond 1980, entire).

The Borax Lake chub is a small minnow (Family: Cyprinidae) endemic to Borax Lake and its outflows. Borax Lake is a 10.2-ac (4.1-ha) geothermally heated, alkaline spring-fed lake in southeastern Oregon. The lake is perched 30 feet (ft) (10 meters (m)) above the desert floor on large sodium-borate deposits (Williams and Bond 1980, p. 297). Water depth averages approximately 3.3 ft (1.0 m), with a maximum measured depth of 88.6 ft (27 m) at the thermal vent (Scheerer and Jacobs 2005, p. 6). The lake bottom includes patches of bedrock and fine gravel, with a sparse growth of aquatic plants, and is covered with thick, fluffy silt. Average lake temperatures range from a high of 39.2 degrees Celsius (°C) (102.6 degrees Fahrenheit (°F)) to a low of 22 °C (71.6 °F) near the shoreline (Scheerer et al. 2013, pp. 3-6). Borax Lake chub prefer the shallow habitats along the margins of the lake (Perkins et al. 1996, p. 8).

The Borax Lake chub is an opportunistic omnivore. The diets of juveniles and adults are very similar and include aquatic and terrestrial insects, algae, mollusks and mollusk eggs, aquatic worms, fish scales, spiders, and seeds (Williams and Williams 1980, p. 113). Males and females can reach reproductive maturity within one year. Spawning occurs primarily in the spring months but can occur year-around (Williams and Bond 1983, pp. 412-413). The reproductive behavior and length of incubation is unknown.

Population abundance estimates for the Borax Lake chub were conducted annually from 1986 to 1997, from 2005 to 2012, and from 2015 to 2017. Over this period, the population abundance has shown a high degree of variability, ranging from a low of 1,242 in 2015, to a record high of 76,931 in 2017 (Scheerer et al. 2015, p. 3; Meeuwig 2017, pers. comm.). A pattern of population reduction followed by a 1- to 5-year period of rebuilding has been observed multiple times during the period of record. The mechanisms contributing to variability in abundance are not entirely clear, but Scheerer et al. (2012, p. 16) surmised that because Borax Lake chub experience water temperatures that are at or near their thermal critical maximum (Williams and Bond 1983, p. 412), survival and recruitment are likely higher during years when water temperatures are cooler in the lake. Water temperatures in Borax Lake are driven by a deep geothermal aquifer with water temperatures up to 40 °C (140 °F) (Perkins et al. 1996, p. 2). Water temperature is also influenced by a variety of other factors, including air temperature, inflow from smaller geothermal and cool water springs, ephemeral thermoclines between areas of relatively cooler and warmer water, and wind.

Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of threatened and endangered species unless we determine that such a plan will not promote the conservation of the species. Recovery plans are not regulatory documents and are instead intended to establish goals for long-term conservation of a listed species; define criteria that are designed to indicate when the threats facing a species have been removed or reduced to such an extent that the species may no longer need the protections of the Act; and provide guidance to our Federal, State, and other governmental and nongovernmental partners on methods to minimize threats to listed species. There are many paths to accomplishing recovery of a species, and recovery may be achieved without all recovery criteria being fully met. For example, one or more criteria may have been exceeded while other criteria may not have been accomplished or become obsolete, yet the Service may judge that, overall, the threats have been minimized sufficiently, and the species is robust enough, to reclassify the species from endangered to threatened or perhaps to delist the species. In other cases, recovery opportunities may have been recognized that were not known at the time the recovery plan was finalized. These opportunities may be used instead of methods identified in the recovery plan.

Likewise, information on the species may subsequently become available that was not known at the time the recovery plan was finalized. The new information may change the extent that criteria need to be met for recognizing recovery of the species. Recovery of species is a dynamic process requiring adaptive management that may, or may not, fully follow the guidance provided in a recovery plan.

The following discussion provides a brief review of recovery planning and implementation for the Borax Lake chub, as well as an analysis of the recovery criteria and goals as they relate to evaluating the status of the taxon.

The Borax Lake Chub Recovery Plan (USFWS 1987, pp. 27-30) described an “interim objective” for potential reclassification to threatened status, as well as a “primary objective” for recovery that could result in removal of the species from the List ( i.e., delisting). It established the following four conditions as criteria for reclassification from endangered to threatened status ( i.e., downlisting):

(1) The presence of a naturally reproducing population of the Borax Lake chub in Borax Lake that is free of exotic species;

(2) Permanent protection of the 160-ac (65-ha) parcel of land surrounding and including Borax Lake (T37S, R33E, sec. 14) by The Nature Conservancy (TNC) or other appropriate public resource agency;

(3) Removal of threats to subsurface waters from geothermal energy exploration or development; and

(4) Reestablishment of ponds and natural marshes adjacent to Borax Lake in order to create more chub habitat, and reestablishment of Lower Borax Lake by waters from Borax Lake in order to create more habitat.

The recovery plan stated that conditions to meet the primary objective of recovery ( i.e., delisting) include the above four downlisting conditions as well as the following six additional conditions:

(1) A viable, self-sustaining population of Borax Lake chub, which is defined as a naturally sustaining population that is free of exotic species and fluctuates in size within the seasonal ranges observed in 1986-1987;

(2) Permanent protection of a second 160-ac (65-ha) parcel of land to the north of Borax Lake (T37S, R33E, sec. 11) by TNC or another appropriate public resource agency;

(3) Withdrawal of Borax Lake waters from appropriations ( i.e., diversion and use under water right);

(4) Establishment of a fence around the 640-ac (259-ha) critical habitat area to prevent vehicle entry;

(5) Establishment of monitoring programs to survey habitat and fish population status; and

(6) Lack of any new threats to the species or ecosystem for 5 consecutive years.

Significant conservation objectives that address the primary threats to the Borax Lake chub have been accomplished through implementing the 1987 recovery plan, including protection of the Borax Lake ecosystem from disturbances through acquisition of key private lands, protection of subsurface and surface waters, closure of fragile lands to vehicle access, removal of livestock grazing, monitoring, and other recovery actions. The following discussion summarizes information on recovery actions that have been implemented under each downlisting and delisting criterion.

In recognition of the fact that we consider the Borax Lake chub to be a conservation-reliant species, the BLM, the ODFW, and the Service developed, and are implementing, the Borax Lake chub CMP (USFWS et al. 2018), and are committed to the continuing long-term management of this species. While the CMP provides agency commitments for long-term stewardship of Borax Lake and Borax Lake chub, the CMP is a voluntary agreement and delisting is not dependent upon implementation of the actions described in the CMP. However, we anticipate the plan will be implemented into the foreseeable future for the following reasons. First, each of the cooperating agencies has established a long record of engagement in conservation actions for the Borax Lake chub, including the BLM's prior contributions through land acquisition and 3 decades of habitat management around Borax Lake; scientific research and monitoring by the ODFW dating back to 1986; and funding support, coordination of recovery actions, and legal obligations by the Service to monitor the species into the future under the Borax Lake chub post-delisting monitoring plan. In addition, all three cooperating agencies are active participants in the Oregon Desert Fishes Working Group, an interagency group facilitated by the Service that meets annually to discuss recent monitoring and survey information for multiple fish species, including Borax Lake chub, as well as to coordinate future monitoring and management activities.

Second, implementation of the CMP is already underway. For example, under the guidance of the CMP, the BLM has conducted quarterly site visits to determine the general health of the Borax Lake ecosystem. The BLM and TNC have maintained the fence and gate around Borax Lake to prevent unauthorized vehicle access. ODFW has maintained water temperature and water elevation monitoring equipment, monitored the State of Oregon's Department of Geology and Mineral Industries (DOGAMI) drilling permits, and conducted regular abundance estimates to assess the status of the population. The Service has continued to provide funding, when available, to support monitoring efforts.

Third, the conservation mission and authorities of these agencies authorize this work even if the species is delisted. For example, the Burns District BLM's resource management plan (RMP) and BLM Manual 6840.06E both provide general management direction for special status species, including the Borax Lake chub. “Special status” species for the BLM include sensitive, proposed for listing, threatened, and endangered species. When delisted, the Borax Lake chub will still be considered a “special status” species, as it meets the criteria to be “sensitive” for the BLM. According to the BLM's Criteria for determining FS R6 and OR/WA BLM Sensitive and Strategic Species (July 13, 2015), all federally delisted species that are suspected or documented on BLM or U.S. Forest Service lands are considered “sensitive” for the duration of their post-delisting monitoring plan unless the species meets some of the other criteria for being “sensitive.” In this case, being a State/Oregon Biodiversity Information Center (ORBIC) rank 1 species, with a Heritage program/NatureServe rank of S1 puts the Borax Lake chub firmly in the “sensitive” category (Huff 2019, pers. comm.; ORBIC 2016, p. 5). Special status species lists and criteria are updated and transmitted to the BLM Districts approximately every 3 years through the State Director, who then directs the Districts to use the new list (Huff 2019, pers. comm.). The Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq. ) directs the BLM to manage public land to provide habitat for fish and aquatic wildlife and to protect the quality of water resources. The ODFW's State of Oregon Wildlife Diversity Plan (Oregon Administrative Rule (OAR) 635-100-0080), Oregon Native Fish Conservation Policy (OAR 636-007-0502), and the Oregon Conservation Strategy (ODFW 2016) each provide protective measures for the conservation of native fish including the Borax Lake chub, which will remain to the best of our knowledge on the ODFW's sensitive species list even when the species is removed from the Federal List. The Service is authorized to assist in the protection of fish and wildlife and their habitats under authorities provided by the Act (16 U.S.C. 1531 et seq. ), the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq. ), and the Fish and Wildlife Act of 1956 (16 U.S.C. 742a-742j, not including 742d-l).

Fourth, there is a practical reason to anticipate implementation of the CMP into the foreseeable future: The CMP actions are technically not complicated to implement, and costs are relatively low. We also have confidence the actions called for in the CMP will be effective in the future because they have already proven effective as evidenced by the information collected from recent actions and associated monitoring such as the annual downloading of air and water temperature loggers at Borax Lake and conducting site evaluations consistent with the guidelines in the CMP.

Lastly, the Service, ODFW, and BLM collaboratively developed the Borax Lake chub CMP to outline individual agency roles and responsibilities, and commitments into the future, regarding Borax Lake chub, the Borax Lake ecosystem, and surrounding lands (USFWS et al. 2018). If an evaluation by the Service suggests the habitat and population are at risk, the Service will evaluate the need to again add the species to the List ( i.e., “relist” the species) under the Act. Taken together, it is therefore reasonable to conclude that the CMP will be implemented as anticipated, and that the long-term recovery of the Borax Lake chub will be maintained and monitored adequately.

Downlisting Criterion 1: The presence of a naturally reproducing population of Borax Lake chub in Borax Lake that is free of exotic species.

This criterion has been met. To be considered naturally reproducing, Borax Lake chub need to reproduce in their natural habitat in Borax Lake with no human intervention, such as supplementation with hatchery- or aquarium-raised fish. The Borax Lake chub population has never been supplemented with hatchery- or aquarium-raised fish and continues to reproduce naturally on an annual basis. In the 3 decades Borax Lake chub have been monitored, there has been only one documented occurrence of an exotic fish species. In 2013, an ODFW biologist observed a nonnative fish that was believed to be a bass given observed morphology (Scheerer et al. 2013, pp. 2-3, 9-10). Subsequent efforts to capture or observe this fish or other nonnative fishes were unsuccessful, and none has been seen in subsequent monitoring. The survival in Borax Lake of this nonnative fish, or of any other commonly introduced nonnative fishes, is unlikely given the geothermally heated high water temperatures.

We consider this criterion met based on the lack of need for conservation actions supporting the species' reproductive success and the fact that only a single occurrence of a nonnative species has been documented. As noted above, we determined the likelihood of survival of this nonnative fish was low, and no observations or detections of this or other nonnative fishes have been made during subsequent surveys. See “Delisting Criterion 1” and C. Disease or Predation for additional discussion regarding the potential for exotic species introduction into Borax Lake.

Downlisting Criterion 2: Permanent protection for the 160-acre parcel of land surrounding and including Borax Lake (T37S, R33E, sec. 14) by TNC or other appropriate public resource agency.

This criterion has been met. In 1983, TNC leased two 160-ac (65-ha) private land parcels, one surrounding Borax Lake and the other immediately to the north. In 1993, TNC acquired both parcels. TNC also acquired subsurface mineral rights to the land surrounding Borax Lake. TNC designated the land surrounding Borax Lake, and the 160-ac (65-ha) parcel to the north, as a preserve for the purpose of conserving the Borax Lake ecosystem. With the purchase of the two parcels by TNC, all lands designated as critical habitat for the Borax Lake chub are in public or conservation ownership. The diversion of water for irrigation and livestock grazing within designated critical habitat ceased. TNC no longer permits vehicular access to the preserve except for access for people with disabilities or for scientific research.

In addition to the above, in 1983, the BLM designated 520 ac (210 ha) of public land surrounding Borax Lake as an “area of critical environmental concern” (ACEC) to protect Borax Lake chub and its habitat. In 2005, the record of decision for the resource management plan for the Andrews Resource Area added 80 ac (32 ha), for a total 600-ac (243-ha) Borax Lake ACEC (BLM 2005, p. 70). Following this designation, the area was fenced to exclude livestock from entering the ACEC and discourage grazing in the area, as closing critical habitat to livestock grazing was called for in the recovery plan in order to decrease disturbance to soils, marsh vegetation and outflow channels (USFWS 1987, pp. 4, 31, 39). The lake is now completely enclosed by fencing, including most of the 640 ac (259 ha) of designated critical habitat, except for a small portion that serves as a parking area for pedestrian access to the lake.

Downlisting Criterion 3: Removal of threats to subsurface waters from geothermal energy exploration or development.

This criterion has been met. While this criterion does not identify a geographic area for which threats of geothermal energy exploration or development should be removed, the recovery plan's step-down outline and narrative describing recovery actions clearly identify this criterion as pertaining to Borax Lake and two 160-ac (65-ha) parcels of private land surrounding Borax Lake (USFWS 1987, pp. 30-45). These lands were eventually purchased by TNC and designated as critical habitat for Borax Lake chub, thereby removing the threat of geothermal development within close proximity to Borax Lake. Although the recovery plan did not explicitly call for removal of potential geothermal development threats outside of designated critical habitat, the Service has acknowledged that geothermal development outside critical habitat, but in proximity to Borax Lake, may constitute a potential threat (USFWS 2012, p. 24).

Numerous geologic studies have been conducted in the vicinity of Borax Lake, yet there is limited detailed information regarding the extent of the geothermal aquifer and the configuration of geothermal fluid flow pathways surrounding Borax Lake (Schneider and McFarland 1995, entire; Fairley et al. 2003, entire; Fairley and Hinds 2004, pp. 827-828; Cummings 1995, pp. 12-19). As such, the best available scientific information does not allow us to determine the precise geographic distance over which geothermal development may represent a threat to the Borax Lake chub and the Borax Lake ecosystem. Given the lack of scientific information ( i.e., depth, extent, source of water, etc.) on the Borax Lake aquifer, a reasonable position is that geothermal development outside of critical habitat may represent a potential threat to Borax Lake chub and that the closer the development is to critical habitat, the greater the likelihood that development could affect the Borax Lake chub and the Borax Lake ecosystem.

With the passage of the Steens Mountain Cooperative Management and Protection Act of 2000 (Steens Act; 16 U.S.C. 460nnn et seq. ) and the completion of the Steens Andrews Resource Management Plan (BLM 2005), the BLM has withdrawn the Alvord Known Geothermal Resource Area from mineral and geothermal exploration and development (BLM 2005a, p. 49). The Steens Act congressionally designated a “mineral withdrawal area” encompassing approximately 900,000 ac (364,217 ha) on BLM-administered lands. The mineral withdrawal area contains the majority of the Alvord Known Geothermal Resource Area (Alvord KGRA), including Borax Lake and surrounding public lands, with the exception of 332 ac (134 ha) of BLM-administered land located approximately 4.5 mi (7.2 km) from Borax Lake (BLM 2005a, p. I-2; BLM 2005b, p. 4).

Private lands within the vicinity of Borax Lake are not affected by the mineral withdrawal. Approximately 2,000 ac (809 ha) of privately owned lands occur within a radius of approximately 1 to 3 miles (mi) (1.6 to 4.8 kilometers (km)) from Borax Lake. Based on geothermal development investigated by various entities over the last 3 decades, it is reasonable to assume that future geothermal development may be explored on private land in the vicinity of Borax Lake. However, as of 2018, there are no active proposals in place for such development.

The most recent exploration for geothermal resource development occurred in 2008, when the BLM received an inquiry from Pueblo Valley Geothermal LLC regarding permitting processes for geothermal exploratory drilling and the potential for developing a geothermal electrical generation plant in the Alvord Lake basin potentially within 3 to 5 mi (4.8 to 8.0 km) of Borax Lake. Pueblo Valley Geothermal LLC submitted a proposal to the BLM on January 31, 2012, for a binary geothermal plant that would produce 20 to 25 megawatts. Pueblo Valley Geothermal LLC also sought to acquire approximately 3,360 ac (1,360 ha) of BLM land via land exchange in order to develop their project. The BLM responded with a letter (Karges. 2012, pers. comm.) explaining that the BLM-managed lands surrounding the private lands under lease are part of the Leasable and Saleable mineral withdrawal enacted by the Steens Act and implemented under the Steens Mountain Cooperative Management and Protection Area Resource Management Plan. The BLM informed Pueblo Valley Geothermal LLC that they would not be able to complete an exchange for various reasons, including: (1) Difficulties in proposing and mitigating a project that would alter land designated as Visual Resource Management Class 2 (the visual resource management objective for class 2 is to retain the existing character of the landscape, and the level of change to the characteristic landscape should be low); (2) the lack of time and staffing to complete a feasibility analysis; and (3) the BLM's requirement that the exchange demonstrate a clear public benefit. The BLM suggested the best route would be to find a geothermal resource outside of the mineral withdrawal area and pursue exploration and development there. Pueblo Valley Geothermal LLC subsequently has become inactive and filed to dissolve their LLC status in the State of Oregon on December 26, 2013.

As stated previously, although the passage of the Steens Act designated a mineral withdrawal area on public lands surrounding Borax Lake, it does not include 322 ac (134 ha) of BLM-administered lands and 2,000 ac (809 ha) of private land located within a radius of approximately 1 to 4.5 mi (1.6 to 7.24 km) from Borax Lake. Therefore, while we view this criterion as having been met, we acknowledge there remains a potential for geothermal development on lands not formally withdrawn from geothermal or mineral development in the Alvord Basin and that future development of these resources constitutes a potential threat to Borax Lake chub. That said, we have determined the likelihood of this threat becoming operative in the foreseeable future is low.

See “Delisting Criterion 3” and D. The Inadequacy of Existing Regulatory Mechanisms for additional discussion regarding the threat of geothermal resource development.

Downlisting Criterion 4: Reestablishment of ponds and natural marshes adjacent to Borax Lake in order to create more chub habitat, and reestablishment of Lower Borax Lake by waters from Borax Lake in order to create more habitat.

The intent of this criterion was to restore natural processes and maximize habitat for Borax Lake chub, and that has been accomplished. Although the reestablishment of Lower Borax Lake has not occurred, the Service determined subsequent to the development of the recovery plan that the reestablishment of the lake was not necessary for the recovery of the species. The 5-year review in 2012 (USFWS 2012, pp. 7, 26) concluded that Lower Borax Lake does not provide suitable habitat for Borax Lake chub due to desiccation during summers with low precipitation and to unsuitable habitat in the winter due to freezing. As a result, we no longer consider reestablishment of Lower Borax Lake to be a necessary action for Borax Lake chub recovery.

Numerous actions to maintain lake levels and restore natural outflows (and thereby reestablish ponds and natural marshes) have occurred at Borax Lake since the Borax Lake chub was listed. Beginning in 1983, TNC, with assistance from the BLM and the ODFW, repaired holes in the northern and eastern shorelines of the lake, and deepened the outflow channel on the southwestern shoreline to promote flow to Lower Borax Lake (USFWS 1987, p. 23). In 1984, the Service and TNC manually constructed several channels diverting water from the southwestern outflow channel into the adjacent marsh (USFWS 1987, p. 25). By 2003, there was no open-water connection between Borax Lake and Lower Borax Lake, but Lower Borax Lake did contain water at that time (Williams and Macdonald 2003, p. 7).

The only habitat outside of Borax Lake that provides habitat for Borax Lake chub is the wetland (referred to as “the marsh” in the 1982 listing rule (47 FR 43957; October 5, 1982)) to the south of Borax Lake, the overflow channel that connects the wetland to Borax Lake, and a second overflow channel on the northern end of the lake. Although the wetland at times maintains water year-round, water levels are variable and are influenced by a groundwater vent in the wetland and overflow from Borax Lake. The seasonal pattern and overall contribution of groundwater inputs to the wetland are not understood. In September 2015, the wetland was dry, due in part from reduced flow from Borax Lake caused by a vegetation plug in the overflow channel and presumably no or reduced contribution from groundwater. Later that fall, the wetland was observed to be full, presumably due to increased groundwater inputs. In response to the reduced flow in the overflow channel, the ODFW manually removed vegetation in spring 2016, to provide a more consistent flow through the overflow channel (Scheerer 2016, pers. comm.). Therefore, while groundwater inputs to the wetland are unpredictable, the increased flow through the overflow channel due to manual vegetation removal by the ODFW is anticipated to increase the likelihood of maintaining habitat in the wetland for the Borax Lake chub. While the wetland and several overflow channels do not represent a large amount of habitat for the Borax Lake chub, they are potentially important cool-water refuge habitats during periods of above-average air temperatures when suitable cool-water habitat in Borax Lake may be reduced. An associated discussion can be found under “Delisting Criterion 1” and A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range in this final rule.

In addition to the four downlisting criteria, the recovery plan also identified six additional criteria for delisting.

Delisting Criterion 1: A viable, self-sustaining population of Borax Lake chub, which is defined as a naturally sustaining population that is free of exotic species and fluctuates in size within the seasonal ranges observed in 1986 to 1987.

This criterion has been met. Data collected from 1986 through 2019 show a self-sustaining population persists at Borax Lake. The population is naturally sustaining without the need for supplementation, such as propagation in a hatchery or in aquaria.

The Borax Lake chub is a species that demonstrates high annual variability in population abundance, ranging from a low of 1,242 estimated fish in 2015, to a high of 76,931 in 2017 (see table, below). As recently as 2010 and 2011, the population estimates were 25,489 and 26,571, respectively. The latest population estimate was 44,933 in 2019. Prior to 2015, the lowest population estimate was 4,132 in 1988. Such population variability, with opportunistic demographic resilience, is relatively common for small desert fishes (Winemiller 2005, pp. 878-879). In the case of the Borax Lake chub, population variation likely results from a combination of factors including short life span, seasonal and annual variability in habitat conditions, and occurrence in water temperatures at the edge of the species' thermal tolerance. Given our improved knowledge of natural variability as described above, we have concluded that the portion of this delisting criterion that called for population levels to fluctuate within the narrow range of population estimates conducted in 1986 and 1987 is unrealistic, and is no longer reasonable to maintain as a recovery goal for this species.

Since the time of listing, two known mortality events occurred during periods when high air temperature and water coincided; during these events, maximum air and water temperatures exceeded 37 °C and 41 °C, respectively (Williams et al. 1989 p. 8-10, Scheerer et al. 2016, p. 9). Despite dramatic declines, population abundance quickly rebounded following these two mortality events. In the summer of 1987, a significant portion of larger adult fish were lost during a heat-related mortality event; however, juvenile fish were plentiful during a fall sampling event using fine meshed traps, leading researchers at the time to conclude that smaller fish were less susceptible to heat-related mortality (Williams et al. 1989, p. 14, Scoppetone et al. 1995, p. 43). In later years, traps were used with larger mesh that did not allow researchers to capture juvenile fish. Between 2005 and 2016, ODFW noted a significant negative relationship between water temperature and population abundance (Scheerer et al. 2016, p. 9), noting the duration of days higher than the suggested thermal tolerance of the species. Daily maximum water temperatures recorded during this period often exceeded the suggested Borax Lake chub thermal tolerance by a wide margin (Scheerer et al. 2016, p. 7). However, in the summer of 2017, water temperature was higher than the suggested thermal tolerance for a longer duration than any period in the 2005-2016 record, although peak daily maximum temperatures were lower than some years (ODFW 2020, in prep). June-August maximum air temperatures were similar to maximum air temperatures observed during the mortality events observed in 1989 (NW Climate Toolbox). Rather than the expected results of a decline in population abundance, the estimated population abundance in the fall of 2017 was twice as high as any previous estimate. Thus, while the 2015 estimate of 1,242 fish represents the lowest estimate on record, the pattern of variability observed over 3 decades of monitoring population abundance underscores the resiliency of this species and its ability to rebound quickly (see table, above).

With one exception, periodic surveys since 2005 have not identified any exotic species within Borax Lake (Scheerer and Jacobs 2005, 2006, 2007, 2008, 2009, and 2010; Scheerer and Bangs 2011; Scheerer et al. 2012, 2015, and 2016). However, in 2013, during shoreline surveys conducted by the ODFW, biologists noted a large fish with paired dorsal fins (presumably a bass) (Scheerer et al. 2013, p. 10). No additional sightings of the bass occurred during the ODFW surveys (Hurn 2014, pers. comm.) or during subsequent efforts to capture the bass (see C. Disease or Predation, below). Survival of the bass is believed to be unlikely given the high water temperatures in Borax Lake. No known occurrence of disease or predation affecting the population of Borax Lake chub has occurred since the time of listing (47 FR 43957; October 5, 1982). The best available scientific data indicate Borax Lake chub are a viable, self-sustaining population in habitat currently free from exotic species.

Delisting Criterion 2: Permanent protection for the 160-acre parcel of land to the north of Borax Lake (T37S, R33E, sec. 11) by TNC or other appropriate public resource agency.

This criterion has been met. In 1983, TNC leased two 160-ac (65-ha) private land parcels, one surrounding Borax Lake and the other immediately to the north of the lake. TNC purchased these two parcels in 1993, placing both parcels in public or conservation ownership and protection.

Delisting Criterion 3: Withdrawal of Borax Lake waters from appropriations.

This criterion has been met. With the acquisition of Borax Lake by TNC, surface waters on their land cannot be appropriated by others. Additionally, in 1991, the ODFW filed an application for the water rights to Borax Lake for conservation purposes. The water right was certified and issued to the Oregon Water Resources Department on December 16, 1998, for the purpose of providing habitat for the Borax Lake chub (OWRD 1998, entire).

Delisting Criterion 4: Establishment of a fence around the 640-acre critical habitat area to prevent vehicle entry.

This criterion has been mostly met. The Andrews/Steens Resource Area, Burns District BLM, has constructed facilities to modify public access and enhance public understanding of the Borax Lake area. The Burns District BLM closed access roads in the vicinity of Borax Lake, realigned the fence surrounding Borax Lake to limit vehicle access, and designated visitor parking. Partial funding for the fencing project came from the BLM's Threatened and Endangered Species Recovery Fund, an initiative started in 2010 that supports projects targeting key recovery actions for federally listed and candidate species occurring on BLM lands. The BLM plans to install interpretive signs at the designated parking area (USFWS et al. 2018, p. 7). The lake is now completely enclosed by fencing, although approximately 30 ac (12 ha) of critical habitat remains outside the fenced portion of the critical habitat, leaving approximately 0.6 mi (1 km) of road accessible to vehicles within designated critical habitat. The remaining area of the critical habitat will remain unfenced to provide for vehicle access, parking, and interpretative signs, while still protecting the Borax Lake environment. The BLM and ODFW will continue to assess the effectiveness of the vehicle closure for protection of the Borax Lake area. Barring any new information indicating that the existing fencing is insufficient to protect the Borax Lake chub, fencing of the remaining critical habitat appears to be unnecessary.

Delisting Criterion 5: Establishment of monitoring programs to survey habitats and fish population status.

This criterion has been met. Numerous studies of the ecology and habitat of Borax Lake have been conducted (Salzer 1992; Scoppettone et al. 1995; Furnish et al. 2002; Scheerer and Jacobs 2005, 2006, 2007, 2008, 2009, 2010; Scheerer and Bangs 2011; Scheerer et al. 2012, 2013). TNC conducted abundance estimates from 1986 through 1997. The ODFW conducted mark-recapture population surveys from 2005 through 2012, and again in 2015 and 2016; developed a survey protocol; and recommended a long-term monitoring strategy (Scheerer and Jacobs 2005, 2006, 2007, 2008, 2009, 2010; Scheerer and Bangs 2011; Scheerer et al. 2012, 2013, 2015, 2016). The ODFW also conducted surveys to monitor the condition of the lake shoreline, outflows, and adjacent wetlands. Additional physical data, including hydrologic information, substrate mapping, outflow monitoring, tracking of water levels, and geological and slope stability, were gathered in the 1990s (Scoppettone et al. 1995; Wilson 2000).

Following delisting, the Borax Lake chub post delisting monitoring (PDM) plan will facilitate the implementation of annual monitoring, except for surveys to estimate population abundance, which will be conducted once every 3 years over a 10-year period (four population surveys total), which will begin following the effective date of this rule (see DATES , above). Given the Borax Lake chub is a short-lived fish (few survive beyond 1 year; Scoppettone et al. 1995, p. 36), periodic monitoring over this time period will allow us to address any possible negative effects to the Borax Lake chub. Additionally, the chub experienced wide fluctuation in its population year-to-year. Limited point estimates for a widely fluctuating population can lead to difficulty assessing long-term trends. Therefore, although the minimum PDM period required by the Act is 5 years, as described above, we chose to extend the population abundance monitoring cycle to once every 3 years and the total monitoring period to 10 years to ensure we can accurately measure changes in trends.

Furthermore, with the understanding that the Borax Lake chub is a conservation-reliant species, the BLM, ODFW, and Service developed a CMP (USFWS et al. 2018) that outlines long-term management actions necessary to provide for the continued persistence of habitats important to Borax Lake chub. The CMP was agreed to, finalized, and signed by the BLM, ODFW, and Service in June 2018. The cooperating parties committed to the following monitoring actions: (1); Borax Lake chub population monitoring; (2) habitat and shoreline monitoring; (3) water temperature monitoring and assessment of potential impacts from climate change; and (4) lake-level monitoring and management to assure ODFW's water right is maintained (USFWS et al. 2018, p. 1). The CMP has no termination date. While the CMP provides agency commitments for long-term stewardship of Borax Lake and Borax Lake chub, the CMP is a voluntary agreement, and delisting is not dependent upon implementation of the actions described in the CMP.

Delisting Criterion 6: Lack of any new threats to the species or ecosystem for 5 consecutive years.

This criterion has been met. Although this final rule identifies climate change as a new potential stressor in the future, we have determined it is not operative on the species or its habitat currently, and is not anticipated to negatively affect the species in the foreseeable future. Increases in ambient air temperatures have caused impacts to Borax Lake chub when they coincided with periods of elevated temperatures from the geothermal inflow to the lake. The frequency of these impacts may potentially increase in the future. Subsequent to the publication of the proposed rule to delist Borax Lake chub (84 FR 6110; February 26, 2019), additional analyses of available 2017 data were conducted that resulted in a slightly modified interpretation (from that presented in the proposed rule) of the relationship between air and water temperature (ODFW 2020, in prep). The new analyses indicate that increased air temperature may slow the cooling of the geothermal waters at Borax Lake, and we anticipate that thermal refuge associated with shallow margin habitat and cool and cold water vents in the lake, along with the species' ability to rebound quickly following periods of elevated water temperatures, will provide resilience against any future potential effects of climate change. See our discussion under A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range, below, for a more detailed description on potential effects of climate change.

We considered all comments and information we received during the comment period for the proposed rule to delist Borax Lake chub (84 FR 6110; February 26, 2019). This resulted in the following changes from the proposed rule in this final rule:

• We made minor editorial changes and reorganized various sections of the rule to increase readability.

• We conducted additional analyses of available climate information.

• We revisited and reanalyzed available species life-history information along with air and water temperature data.

• We added additional details regarding the PDM and Borax Lake chub CMP.

This also resulted in the following changes to the PDM plan:

• We modified and extended the PDM from 5 years to 10 years and increased the frequency and type of information scheduled to be collected in order to increase our ability to detect changes in habitat or population abundance that may be attributed to climate change.

• We assessed the opportunities for a second population. Based in part on concerns expressed by public and peer reviewers regarding potential impacts of climate change, we determined establishing a secondary refuge population of Borax Lake chub through translocation would increase population redundancy, and spread risk inherent to any naturally rare or endemic species. Therefore, in addition to monitoring Borax Lake, the Service and our partners will evaluate the feasibility of establishing a secondary refuge population of Borax Lake chub at a yet-to-be-determined location in the Alvord Basin during the PDM period as a long-term conservation measure for the species. Although the species does not require this action to persist long-term, establishment of a secondary refuge population would provide additional assurance and conservations benefits. Similar steps have been taken for other naturally rare or endemic species.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species on the List, or removing species from listed status. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). The Act defines an endangered species as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether any species is an “endangered species” or a “threatened species” because of any of the following factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.

However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species—such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.

We must consider these same five factors in delisting a species. We may delist a species according to 50 CFR 424.11(e) if the best available scientific and commercial data indicate that: (1) The species is extinct; (2) the species does not meet the definition of an endangered or a threatened species; or (3) the listed entity does not meet the statutory definition of a species.

A recovered species is one that no longer meets the Act's definition of endangered or threatened. For species that are already listed as endangered or threatened, this analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following delisting or downlisting ( i.e., reclassification from endangered to threatened) and the removal or reduction of the Act's protections.

The Act does not define the term “foreseeable future.” Our proposed rule described “foreseeable future” as the extent to which we can reasonably rely on predictions about the future in making determinations about the future conservation status of the species. The Service since codified its understanding of foreseeable future in 50 CFR 424.11(d) (84 FR 45020). In those regulations, we explain the term “foreseeable future” extends only so far into the future as the Service can reasonably determine that both the future threats and the species' responses to those threats are likely. The Service will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species' life-history characteristics, threat-projection timeframes, and environmental variability. The Service need not identify the foreseeable future in terms of a specific period of time. These regulations did not significantly modify the Service's interpretation; rather they codified a framework that sets forth how the Service will determine what constitutes the foreseeable future based on our long-standing practice. Accordingly, though regulations do not apply to the final rule for the Borax Lake chub because it was proposed prior to their effective date, they do not change the Service's assessment of foreseeable future for the Borax Lake chub as contained in our proposed rule and in this final rule. We think it is reasonable to define the foreseeable future for Borax Lake chub to be a range of 20 to 30 years based on the following analysis. In considering the foreseeable future as it relates to the status of the Borax Lake chub, we consider the factors affecting the species, historical abundance trends, and ongoing conservation efforts. Our period of record for monitoring the Borax Lake chub and its associated habitat extends back more than 30 years, which, when combined with our knowledge of factors affecting the species, allows us to reasonably predict future conditions, albeit with diminishing precision over time. We also expect the ODFW, BLM, and TNC to continue to manage Borax Lake and to conserve Borax Lake chub. This expectation is based on both the fact that for over 3 decades, the ODFW, BLM, and TNC have taken actions benefiting the Borax Lake chub and the Borax Lake ecosystem, as well as the lack of termination date on the CMP signed by the three entities that facilitates conservation for the Borax Lake chub into the future. Furthermore, ODFW's water right for Borax Lake that protects water levels for the Borax Lake chub is held in perpetuity (OWRD 1998, entire). Finally, as discussed below, our understanding of the potential future effects of climate change on Borax Lake chub and its habitat is based on downscaled climate change projections that extend out approximately 30 years, to the year 2049 (Alder and Hostetler 2016, entire).

In examining threats to narrowly distributed endemic species such as the Borax Lake chub, we must consider that natural rarity ( i.e., a species that only exists in one or a few locations, though it may be abundant there), in and of itself, does not constitute a threat under the Act. Natural rarity may increase risk or vulnerability if threats are operative on the species or its habitat now or in the foreseeable future, but rarity, in and of itself, does not constitute a threat under the Act.

In the following analysis, we evaluate the status of the Borax Lake chub through the five-factor analysis of threats currently affecting the species, or that are likely to affect the species within the foreseeable future.

At the time of listing in 1982 (47 FR 43957; October 5, 1982), the primary threats to the Borax Lake chub consisted of potential impacts from geothermal energy development on BLM and private lands near Borax Lake, diversion of the lake's outflows by alteration of the shoreline crust, and potential development of a recreation facility. Since the time of listing, actions have been taken to reduce or eliminate these threats, as discussed below. We also include an analysis of the effects of climate change as a potential threat to habitat in the foreseeable future.

The recreation facility discussed in the 1982 listing rule was never developed, and acquisition of the property by TNC eliminated the potential for development of a recreation facility at the Borax Lake site (Williams and Macdonald 2003, p. 12).

The ODFW filed for water rights at Borax Lake in 1991, and that water right is now certified and held in trust by the Oregon Water Resources Department (OWRD 1998, entire), to prevent further attempts at diverting the water and to ensure maintenance of the water elevation in Borax Lake (see “Delisting Criterion 3” discussion, above). The purpose of the water right is to provide the required habitat conditions for Borax Lake chub. The right is established under Oregon Revised Statute 537.341, with a priority date of August 21, 1991. The right is limited to the amount of water necessary to maintain a surface water elevation of 4,081 ft (1,244 m) above mean sea level. The certificate will remain in place in perpetuity. The certificate does not need beneficial use ( i.e., actively used) every 5 years like many other water right certificates. As long as Borax Lake chub exist in Borax Lake, the use is being applied as intended in the water right (J. Anthony 2020, pers. comm.). The right has been recorded in the State record of Water Right Certificates as 75919 (OWRD 1998, entire).

The 160-ac (65-ha) private land parcel containing Borax Lake was purchased by TNC in 1993 (Williams and McDonald 2003, p. 2). Subsurface mineral rights are included. Since TNC acquisition, surface waters on their land, upon which Borax Lake is located, can no longer be appropriated by others. Additionally, TNC ended the practice of actively diverting surface water from the eastern side of the lake to reduce the impact from prior water diversions (Williams and McDonald 2003, p. 7). The BLM designated the adjacent 600 ac (243 ha) of public lands as an ACEC for the conservation of Borax Lake chub, and the area was fenced to exclude livestock from entering the ACEC (see “Downlisting Criterion 2” discussion, above; BLM 2005a, p. 70).

Off-road vehicle damage along the lake shoreline has been documented in the past (Scheerer and Jacobs 2005, p. 6; 2006, p. 7; 2007, p. 6; 2008, p. 6; 2009, p. 8; 2010, p. 4; Scheerer and Bangs 2011, p. 9; Scheerer et al. 2012, p. 13; Scheerer et al. 2013, p. 6). As a result, in 2011, the BLM and TNC completed fencing the remaining perimeter of the lake and most of the associated critical habitat to exclude unauthorized vehicles (Scheerer and Bangs 2011, p. 11), and in 2013, they installed locks on all access gates (Scheerer et al. 2013, pp. 9-10). Due to the completion of the perimeter fence, the threat to Borax Lake chub and its habitat from shoreline habitat alteration by vehicles has been addressed.

Geothermal exploration and development has been pursued in the Alvord Known Geothermal Resource Area and specifically in the vicinity of Borax Lake from the early 1970s (Wassinger and Koza 1980, p. 1) to 2013. The Alvord Known Geothermal Resource Area is a 176,835-ac (71,563-ha) area within the Alvord Basin (Wassinger and Koza 1980, p. 7). Development of geothermal resources was considered in 1980, and exploratory wells were drilled in 1982 (47 FR 43957; October 5, 1982). In 1994, Anadarko proposed additional geothermal exploration and development, and the BLM prepared a notice of intent to prepare an environmental impact statement (EIS). After receiving public scoping comments, Anadarko withdrew its development proposal, and no EIS was written (Geisler 2009, pers. comm.).

The passage of the Steens Act in 2000, and the finalization of the BLM resource management plan (RMP) (BLM 2005a, p. 71), withdrew mineral and geothermal resources from development on Federal lands within the Alvord Known Geothermal Resource Area. The BLM retained 332 ac (134 ha) of land with high potential for geothermal resources west of Fields and within 4.5 mi (7.2 km) of Borax Lake open for leasable mineral and geothermal development (BLM 2005a, p. I-2). Private lands within this area are not affected by the mineral withdrawal.

In 2008, the BLM and DOGAMI received inquiries on behalf of private landowners in Alvord Basin regarding the development of geothermal resources. The BLM was contacted regarding electrical transmission and right-of-way (ROW) access to cross BLM lands in order to explore and develop commercial geothermal electrical power (Bird 2008, pers. comm.). The developer, Pueblo Valley Geothermal LLC, met with the BLM in 2008, to discuss their interest in obtaining an ROW permit to access private land and construct a power plant. Although the Steens Act and subsequent RMP withdrew the Alvord Known Geothermal Resource Area from geothermal development, the RMP could allow an ROW permit because the area in question is not within the Cooperative Management and Protection Area boundary. ROWs are a valid use of public lands under sections 302 and 501 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq. ), as amended (BLM 2005a, p. 59). The BLM would be responsible under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) to analyze any proposed ROW project, including the connected actions, such as exploratory well drilling and power line construction.

The proposed power plant was anticipated to generate 1 to 10 megawatts (Hall 2011, pers. comm.). Pueblo Valley Geothermal LLC acquired a 53-year lease on approximately 2,000 ac (809 ha) from landowners located south of Alvord Lake, and within 3 mi (4.8 km) and as close as 1 mi (1.6 km) from Borax Lake (Hall 2009, pers. comm.). Pueblo Valley Geothermal LLC also placed an advertisement in the publication “Geothermal Energy Weekly” seeking investors for a 20- to 25-megawatt geothermal facility (Geothermal Energy Association 2010, no pagination). The developer indicated in 2011 that they were progressing with resource assessments regarding the total megawatt and economic potential (Hall 2011, pers. comm.). No formal permit applications were received by the BLM or DOGAMI in 2011 (Houston 2008, pers. comm.; Houston 2010, pers. comm.; Houston 2011, pers. comm.), and as of 2018, we are not aware of any such applications.

Pueblo Valley Geothermal LLC submitted an informal proposal to the BLM on January 31, 2012, seeking to acquire 3,360 ac (1,360 ha) of BLM land in the vicinity of the Borax Lake geothermal aquifer in the interest of developing an air-cooled binary geothermal plant to produce 20 to 25 megawatts of electricity (McLain 2012, pers. comm.). The BLM responded with a letter on March 14, 2012, explaining that due to various reasons including resource concerns, funding, and staffing priorities, such a land exchange was not feasible at that time (Karges 2012, pers. comm.). Pueblo Valley Geothermal LLC indicated to us that the proposal to develop geothermal energy on private land in the vicinity of Borax Lake was not active (Hall 2014, pers. comm.). The Oregon Secretary of State Office maintains an online business registry of Limited Liability Company (LLC) companies (Oregon Secretary of State 2019). The list was consulted, and we found that the company, Pueblo Valley Geothermal LLC, filed an article of dissolution on December 26, 2013. A review of the Harney County Assessor's property records show that 320 ac (129 ha) of land previously leased by Pueblo Valley LLC, which is approximately 1 mi (1.6 km) west of Borax Lake, is now owned by Oregon Geothermal LLC. We do not have any new information on permit applications from Oregon Geothermal LLC or any other new geothermal proposals that may arise in the foreseeable future.

Potential impacts resulting from geothermal development that were identified at the time of listing include effects to water elevation in Borax Lake due to the interconnecting aquifers or springs. Drilling could disrupt the hot water aquifer that supplies Borax Lake. Potential impacts from geothermal energy drilling could include changes to the aquifer pressure or temperature, and the potential to lessen or eliminate inflows to the lake from the geothermal aquifer. Changes to water flow and water temperature may have an adverse impact on the Borax Lake chub. Although the species tolerates thermal waters, excessive warming of the lake's water could cause adverse physiological effects, and, at extremes, would be lethal to the Borax Lake chub.

In summary, proposals to develop geothermal energy resources in the Borax Lake vicinity have occurred sporadically in the 1970s, in the 1980s, in 1994, and in 2008 through 2012. However, none of these proposals has moved forward with permitting and implementation over a 4-decade period, and this history leads us to conclude that the likelihood of geothermal energy development now and in the foreseeable future is low. Furthermore, while geothermal development in the vicinity of Borax Lake is considered a potential threat to the Borax Lake chub, the precise effects of possible geothermal development on the species are uncertain and unpredictable. The potential effects to the species would depend upon the specifics, such as the scale of the project and proximity to Borax Lake, of any geothermal energy development that might proceed to the implementation phase. Depending on the particular circumstances of any particular project, such development could potentially have a negative effect on the species, or it might have no or negligible effects. The effects of any future geothermal project proposal on Borax Lake chub would be assessed based on specific project details and other data available at the time. If an assessment suggested a future geothermal project would likely cause significant risk to Borax Lake and the well-being of Borax Lake chub, and existing regulatory mechanisms did not deter or result in modifications to the development to minimize or eliminate likelihood of impacts to the chub, we have the discretion to use the emergency listing authorities under section 4(b)(7) of the Act, such as we used in the May 28, 1980, emergency listing of Borax Lake chub (45 FR 35821). The possibility of geothermal development in the vicinity of Borax Lake will continue to represent a potential threat to Borax Lake chub and its habitat, but we have determined the likelihood of this threat becoming operative in the foreseeable future is low.

The Intergovernmental Panel on Climate Change (IPCC) concluded that the evidence for warming of the global climate system is unequivocal (IPCC 2013, p. 3). Numerous long-term climate changes have been observed including changes in arctic temperatures and ice, widespread changes in precipitation amounts, ocean salinity, wind patterns, and aspects of extreme weather including droughts, heavy precipitation, and heat waves (IPCC 2013, p. 4). The general climate trend for North America includes increases in mean annual temperatures and precipitation and the increased likelihood of extreme weather events by the mid-21st century (IPCC 2014, pp. 1452-1456). Changes in climate can have direct or indirect effects on species; may be positive, neutral, or negative; and may change over time, depending on the species and other relevant considerations such as the effects of interactions of climate with other variables ( e.g., habitat fragmentation) (IPCC 2007, pp. 8-14, 18-19).

Global climate projections are informative and, in some cases, the only or the best scientific information available for us to use. However, projected changes in climate and related impacts can vary substantially across and within different regions of the world ( e.g., IPCC 2007, pp. 8-12). Therefore, we use “downscaled” projections when they are available and have been developed through appropriate scientific procedures, because such projections provide higher resolution information that is more relevant to spatial scales used for analyses of a given species (see Glick et al. 2011, pp. 58-61, for a discussion of downscaling).

Downscaled projections as of 2016 were available for our analysis from the U.S. Geological Survey (Alder and Hostetler 2016, entire). The National Climate Change Viewer is based on the mean of 30 models, which can be used to predict changes in air temperature and precipitation for the Alvord Lake basin in Harney County, Oregon, based on two emission scenarios, RCP4.5 and RCP8.5. Scenario RCP4.5 is a moderate emissions scenario (where atmospheric concentrations of greenhouse gases are expected to equal approximately 650 parts per million (ppm) after the year 2100), and RCP8.5 is the most aggressive emissions scenario (in which greenhouse gases continue to rise unchecked through the end of the century) (Alder and Hostetler 2016, entire).

With regard to our analysis for the Borax Lake chub, we used both the RCP8.5 and RCP4.5 emission scenarios to evaluate projected air temperature increases. Given the timeframe of our analysis (through 2049), both models predicted similar temperature projections. The RCP8.5 emissions scenario predicted that during the period from 2025 to 2049, the July mean model maximum air temperature will increase by 2.4 °C (4.3 °F) from the historical mean as compared to projected increase of 1.9 °C (3.3 °F) under the RCP4.5 emissions scenario. The models predict very little change in the mean annual precipitation and runoff for the Alvord Lake basin (Alder and Hostetler 2016, entire).

The relationship between air temperature, water temperature, and habitat suitability at Borax Lake is highly dynamic and not fully understood. As a geothermal hot spring, water temperatures at Borax Lake are likely influenced by the temperature and the rate of outflow from the primary hot water vent and the other secondary cool water vents, ephemeral thermoclines between areas with relatively cool and warm water, and wind direction and velocity. A seasonal component exists in both the magnitude and temperature of inflow from the main spring vent, and these relationships are correlated with seasonal runoff in the Alvord Basin (Cummings et al. 1993, p. 120) and seasonal air temperature (Williams et al. 1989, p. 16). Water temperature from the main vent can vary from 40 to 148 °C (104 to 298 °F; Perkins et al. 1996, p. 2), and air temperature likely reduces the water temperature at the surface of the lake.

The effects that future increases in air temperature may have on Borax Lake water temperatures is unknown. Although surface water at the lake appears to be cooled by the air, an increase in air temperature does not necessarily correspond to an increase in water temperatures at Borax Lake over a short-term time scale as other factors may impact lake temperature, including wind, temperature of water from the vent, and ephemeral thermoclines (Perkins et al. 1996, p. 15). Climate change predictions for the region show an increase in wind velocity, but the uncertainty surrounding the relationship between wind velocity, air temperature, and water temperature prevent predictions on the effects of such an increase on the temperature of Borax Lake. Currently, water temperatures often exceed the suggested (Williams and Bond 1983. p. 412) thermal maximum of the species by a wide margin.

The lake experiences high spatial variability in water temperatures, caused in part by multiple small cold and cool water vents, besides the main vent. Borax Lake chub seek out relatively cooler water during high temperature events (Williams et al. 1989, p. 17). However, water temperature has periodically exceeded the suggested thermal tolerance of the species across all monitoring locations. Since the time of listing, two known mortality events occurred during periods when high air and water temperature coincided. Although the abundance declines associated with these events were substantial, the population quickly rebounded. Water temperature monitoring between 2005 and 2016 showed a potential negative relationship between abundance and water temperature. However, in the summer of 2017, water temperature was higher than the suggested thermal tolerance for a longer duration than any period in the 2005-2016 record, although peak daily maximum temperatures were lower than some years (ODFW 2020, in prep). June-August maximum air temperatures were similar to maximum air temperatures observed during the mortality events observed in 1989 (Alder and Hostetler 2019, unpaginated). Rather than the expected results of a decline in population abundance, the estimated population abundance in the fall of 2017 was twice as high as any previous estimate.

Borax Lake chub may be adapted to thermal tolerance, and suggested that annual progressive acclimation to increased temperature may aid survival during periods of high temperature (Williams et al. 1989, p. 17). Smaller fish appear to be less susceptible to heat-related mortality (Williams et al. 1989, p. 14). The rapid maturity of juvenile fish and prolonged spawning period (Williams and Bond 1983, p. 413; Scoppetone et al. 1995, p. 41; Perkins et al. 1996, p. 18) may enable successful spawning during consecutive hot years, even if the population of larger, and presumably older, fish is reduced.

Although a specific analysis has not been conducted to determine the amount and suitability of thermal refuge habitat that may be available under various lake and air temperature conditions, the availability of shallow margin habitat around the perimeter of the lake, along with the outflow channel and wetland, likely provides thermal refuge ( i.e., cooler water) habitat for the species during periods when warm air and water temperatures coincide (Scheerer and Bangs 2011, pp. 5-8; Scheerer et al. 2012, pp. 7-11). In addition, cool and cold water vents within portions of the lake that likely contribute to moderating lake temperatures and provide additional areas of thermal refuge (Scheerer 2018, pers. comm.). While there is evidence these cool and cold water vents, as well as warm and hot vents within the lake (in addition to the primary vent) vary in temperature year to year, the aggregate of these thermal refuge habitats, along with the species' ability to rebound quickly following periods of higher than normal air and water temperatures, are anticipated to provide resilience against potential future effects of climate change.

Although there are no currently available climate projections on the persistence of springs into the future, changes to precipitation, drought, aquifer recharge, or vegetative community around Borax Lake as a result of climate change would not likely have an impact on the Borax Lake chub. Borax Lake is perched above the valley floor, there is no inflow of water from above-ground sources, and the vegetative community is not likely to change due to the temperature increases predicted.

Since the time of listing in 1982 (47 FR 43957; October 5, 1982), actions have been taken to reduce or eliminate the destruction and modification of Borax Lake chub habitat. This includes the acquisition of Borax Lake and surrounding lands by TNC, the BLM's designation of adjacent lands as an ACEC, protection of subsurface and surface waters, protection from mineral withdrawal, and closure of fragile lands to livestock grazing and unauthorized vehicle access. Although these measures have removed and minimized various threats to Borax Lake and surrounding lands, the potential for geothermal development, and consequent possible impacts to Borax Lake chub and its habitat, remains. The possibility of geothermal development in the vicinity of Borax Lake will continue to represent a potential threat to Borax Lake chub and its habitat, but we have determined the likelihood of this threat becoming operative in the foreseeable future is low.

Increases in the ambient air temperature from climate change could slow the cooling of the geothermal waters in Borax Lake. Cooling of the waters of Borax Lake, especially the shallow margin areas including several overflow channels and the wetland, is important to the Borax Lake chub during warm times of the year given that temperatures in some areas of the lake often exceed the thermal maximum for this species (Scheerer and Bangs 2011, p. 8) reported as 34.5 °C (94 °F) (Williams and Bond 1983, p. 412).

Two previous mortality events were observed following periods when high water temperature and air temperature coincided. It is reasonable to assume the frequency of these events due to climate change may increase such that there is a possibility for consecutive year events of adult population abundance decline associated with abnormally warm air and water temperatures. We anticipate that thermal refuge associated with shallow margin habitat and cool and cold water vents in the lake, along with the species' ability to rebound quickly following periods of higher than normal air and water temperatures, will provide resilience against potential future effects of climate change.

Overutilization for commercial, recreational, scientific, or educational purposes was not a factor in listing (47 FR 43957; October 5, 1982) and is currently not known to be a threat to the Borax Lake chub, nor is it likely to become so in the foreseeable future.

Disease was not a factor in listing of the Borax Lake chub (47 FR 43957; October 5, 1982) and is currently not known to be a threat to Borax Lake chub, nor is it likely to become so in the foreseeable future.

Likewise, predation was not noted as a factor in the listing of Borax Lake chub (47 FR 43957; October 5, 1982). Several native species that are likely predators of the Borax Lake chub, such as garter snakes and common grebes, are found in and around Borax Lake. The Borax Lake chub evolved in this habitat in the presence of these predatory species, and the species has persisted in the presence of these predators. Although we do not believe predation is a threat currently or in the foreseeable future, a single observation of an exotic fish did occur in 2013 (see “Delisting Criterion 1,” above, for more discussion). Exotic fish were not observed in repeated surveys, and no known impacts to Borax Lake chub occurred. The high water temperatures and water chemistry in Borax Lake, which likely limited the long-term survival of this exotic fish, also limit the overall likelihood of establishment of exotic species in Borax Lake. The establishment of a perimeter fence around Borax Lake by the BLM and TNC in 2011 further reduced the likelihood of purposeful or accidental introductions of exotic species to the extent that we conclude that the threat of predation has been addressed.

As noted previously in this rule, the BLM, ODFW, and the Service developed a CMP that will guide future monitoring for nonnative species, monitoring of Borax Lake chub, vehicle access restrictions, and public outreach and education (USFWS et al. 2018). While the CMP provides agency commitments for long-term stewardship of Borax Lake and Borax Lake chub, this delisting is not dependent upon implementation of the actions described in the CMP.

Under this factor, we examine the stressors identified within the other factors as ameliorated or exacerbated by any existing regulatory mechanisms or conservation efforts. Section 4(b)(1)(A) of the Act requires that the Service take into account “those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species.” In relation to Factor D under the Act, we interpret this language to require the Service to consider relevant Federal, State, and Tribal laws, regulations, and other such binding legal mechanisms that may ameliorate or exacerbate any of the threats we describe in threat analyses under the other four factors or otherwise enhance the species' conservation. Our consideration of these mechanisms is described in detail within each of the threats or stressors to the species (see full discussion under this section, Summary of Factors Affecting the Species). For currently listed species that are being considered for delisting, we consider the adequacy of existing regulatory mechanisms to address threats to the species absent the protections of the Act. We examine whether other regulatory mechanisms would remain in place if the species were delisted, and the extent to which those mechanisms will continue to help ensure that future threats will be reduced or minimized.

The following provides an overview of the existing regulatory protections that protect the Borax Lake ecosystem and Borax Lake chub.

The 160-ac (65-ha) private land parcel containing Borax Lake and the 160-ac (65-ha) parcel to the north of the lake were purchased by TNC in 1993. Subsurface mineral rights are included in the deed. Since TNC acquisition, surface waters on their land, upon which Borax Lake is located, can no longer be appropriated by others. Additionally, TNC ended the practice of actively diverting surface water from the eastern side of the lake to reduce the impact from prior water diversions.

The passage of the Steens Act of 2000 and the completion of the Steens Andrews RMP withdrew the Alvord KGRA from mineral and geothermal exploration and development (BLM 2005a). The Steens Act congressionally designated a mineral withdrawal area encompassing 900,000 ac (364,217.1 ha) of the planning area on BLM-administered lands. The mineral withdrawal area contains the majority of the Alvord KGRA, including Borax Lake and surrounding public lands, with the exception of 332 ac (134.4 ha) located approximately 4.5 mi (7.242 km) from Borax Lake (BLM 2005a). Private lands within this area are not affected by the mineral withdrawal. Approximately 2,000 ac (809.4 ha) of privately owned land occur within a 3-mi (4.83-km) radius of Borax Lake and are not subject to BLM's withdrawal. The BLM has responsibility to review all applications for geothermal development within the Alvord KGRA that occur on BLM lands and some applications for development on private lands if the development requires an ROW for access or transmission lines across BLM-managed lands. ROWs are a valid use of public lands under sections 302 and 501 of the Federal Land Policy and Management Act of 1976 (BLM 2005a). The BLM would be responsible under the National Environmental Policy Act to analyze the environmental impacts of any proposed ROW project including the connected action ( i.e., energy development on private lands). By seeking an ROW, the development of geothermal energy or mineral withdrawal on private lands would be subject to consultation. All the private land in proximity to Borax Lake is surrounded by BLM land; thus any development on these private lands would require a BLM ROW to move energy out of the development area. The application for an ROW would trigger consultation with the Service, and therefore potential impacts of the development to Borax Lake chub would be assessed.

In 1983, the BLM designated 520 ac (210 ha) of public land surrounding Borax Lake as an ACEC to protect Borax Lake chub and its habitat. In 2005, the record of decision for the RMP for the Andrews Resource Area added 80 ac (32 ha), for a total 600-ac (243-ha) Borax Lake ACEC (BLM 2005a, p. 70). Despite being delisted, the Borax Lake chub still meets the BLM's special status species criteria and thus the ACEC will still meet all ACEC designation criteria. While an ACEC designation can be removed or modified through a land and resource management plan (RMP) update, the Burns District currently has no plans to modify the boundary or change the ACEC in any way (M. Anthony 2020, pers. comm.).

Off-road vehicle damage along the lake shoreline was documented in the past (Scheerer and Jacobs 2005, p. 6; 2006, p. 7; 2007, p. 6; 2008, p. 6; 2009, p. 8; 2010, p. 4; Scheerer and Bangs 2011, p. 9; Scheerer et al. 2012, p. 13; Scheerer et al. 2013, p. 6). As a result, in 2011, the BLM and TNC completed a perimeter fence surrounding the lake and most of the associated critical habitat to exclude unauthorized vehicles, and in 2013, they installed locks on all access gates. Due to the completion of the perimeter fence, the threat to the Borax lake chub from shoreline habitat alteration by vehicles has been addressed.

Oregon Revised Statute (ORS) chapter 522 authorizes DOGAMI to control drilling, re-drilling, and deepening of wells in Oregon for the discovery and production of geothermal resources. Under this authority, a developer undertaking geothermal exploration on all land (public and private) must first obtain a permit from DOGAMI (Oregon Administrative Rule (OAR) 632-020-0028). DOGAMI process requires circulation of any permit application to other State agencies that manage natural resources such as the Water Resources Department, ODFW, Department of Environmental Quality, State Parks and Recreation Department, Department of Land Conservation and Development, Department of State Lands, and the governing body of the county and geothermal heating district in which the well will be located (ORS 522.125(1)). Any of these agencies can suggest conditions under which a permit should be granted or denied. DOGAMI is required to take State agency comments into consideration when deciding to grant a permit (OAR 632-020-0170). As part of the conditions for geothermal development on private land, a developer is required by DOGAMI to provide baseline information needed to show there would be no connection to geothermal or groundwater continuity in areas of environmental concern ( i.e., Borax Lake or the BLM's designated ACEC near Borax Lake). Therefore, the DOGAMI is required to accept comment, and consider protective measures. This additional review through the DOGAMI process may benefit the Borax Lake chub through the addition of conservation measures necessary to obtain a permit for geothermal exploration.

The EFSC has regulatory and siting responsibility for proposed generating facilities greater than 35 megawatts in Oregon. The OAR-345-022-0040 prohibits the EFSC from issuing site certificates for energy development in protected areas such as BLM's ACECs and State natural heritage areas such as TNC's Borax Lake Preserve. For proposed energy developments in unprotected areas, the EFSC applies Division 22 siting standards for fish and wildlife habitat (OAR 345-022-0060), threatened and endangered species (OAR 345-022-0070), and general standards of review (OAR 345-022-000). Specific to Borax Lake chub, OAR 345-022-0060 requires that a proposed facility comply with the habitat mitigation goals and standards of the ODFW as defined in OAR 635-415-0025. The ODFW defines Borax Lake chub habitat as a Habitat Category 1 under the habitat mitigation standard. Habitat Category 1 is defined as irreplaceable, essential habitat for a species regardless of listing status, and will not change when the species is delisted. The mitigation goal for Habitat Category 1 is no loss of either habitat quantity or quality. The ODFW is required to protect habitats in Category 1 by recommending or requiring: (1) Avoidance of impacts through alternatives to the proposed development action, or (2) no authorization of the proposed development action if impacts cannot be avoided. To issue a site certificate, the EFSC must find that the design, construction, and operation of the facility, taking into account mitigation, are consistent with the fish and habitat mitigation goals and standards of OAR 635-415-0025 (OAR 345-022-0060 Fish and Wildlife Habitat).

The Borax Lake chub was listed as endangered in 1987, and then reclassified to threatened in 2017, under the Oregon Endangered Species Act (Oregon ESA; ORS 496.012), which prohibits the “take” (killing or obtaining possession or control) of listed species without an incidental take permit. The State of Oregon determined that Borax Lake chub fit the definition of threatened rather than endangered due to substantial progress in conservation and recovery of the species. The State criteria for recovery of Borax Lake chub are met due to the following: (1) TNC owns and protects the parcel containing Borax Lake and the parcel to the north of the lake; (2) natural reproductive potential is not endangered; (3) primary habitat is protected; (4) habitat is protected from commercial use; (5) public access is restricted to foot traffic; (6) no harvest is allowed; (7) only infrequent scientific or educational use occurs; (8) most surrounding land is protected from geothermal development on Federal lands; and (9) water rights of the lake were obtained by the ODFW for the purpose of conserving Borax Lake chub.

The Oregon ESA applies to actions of State agencies on State-owned or -leased land, and does not impose any additional restrictions on the use of private lands (ORS 496.192). The Oregon ESA is implemented by the State independently from the Federal Endangered Species Act; thus, this final rule does not directly impact the current State listing of Borax Lake chub. Under the Oregon ESA, State agencies (other than State land-owning or land-managing agencies) determine the role they may serve in contributing toward conservation or take avoidance (OAR 635-100-0150). The Oregon Endangered Species List is a nonregulatory tool that helps focus wildlife management and research with the goal of preventing species from declining to the point of extinction (ORS 496.171, 496.172, 496.176, 496.182, and 496.192). The ODFW commission reviews Oregon ESA-listed species at least once every 5 years to assess status relative to the recovery criteria (OAR 635-100-0120). If the ODFW commission determines that removal from the Oregon ESA list is warranted, the commission is required to consult with relevant State and Federal agencies, cities and counties, federally recognized tribes, the Natural Heritage Advisory Council, and other States, organizations, or individuals that have a common interest in the species before making a final decision (OAR 635-100-0105). While a Federal delisting under the Act does not inherently lead to a delisting under the State ESA, it is reasonable to assume this may be considered by the ODFW commission in the future. Given the Oregon ESA does not impose regulations on private lands, the Service does not anticipate that a potential Oregon ESA delisting would alter or reduce current or future regulatory protections for the Borax Lake chub.

Per OAR 635-415-0025 (Habitat Mitigation Policy), the ODFW would provide comments and recommendations on risks to all native fish and wildlife from a proposed geothermal development project in the Alvord Basin through all State and county permitting processes. If there was any indication that a proposed geothermal development project would have a geothermal or groundwater connection with Borax Lake, the ODFW would recommend that alternatives be developed or that the action not be permitted.

The ODFW filed for water rights at Borax Lake in 1991, and that right is now certified to the Oregon Water Resources Department (OWRD 1998, entire) to prevent further attempts at diverting the water and to ensure maintenance of the water elevation in Borax Lake (see “Delisting Criterion 3” discussion, above). The purpose of the water right is to provide the required habitat conditions for the Borax Lake chub. The right is established under ORS 537.341, with a priority date of August 21, 1991. The right is limited to the amount of water necessary to maintain a surface water elevation of 4,081 ft (1,244 m) above mean sea level. The right has been recorded in the State record of Water Right Certificates as 75919 (OWRD 1998, entire). The certificate will remain in place in perpetuity. The certificate does not need beneficial use ( i.e., actively used) every 5 years like many other water right certificates. As long as Borax Lake chub exist in Borax Lake, the use is being applied as intended in the water right (J. Anthony 2020, pers. comm.).

The ODFW's Native Fish Conservation Policy calls for the conservation and recovery of all native fish in Oregon (ODFW 2002, entire), including Borax Lake chub. The Native Fish Conservation Policy requires that the ODFW prevent the serious depletion of any native fish species by protecting natural ecological communities, conserving genetic resources, managing consumptive and non-consumptive fisheries, and using hatcheries responsibly so that naturally produced native fish are sustainable (OAR 635-007-0503). The policy is implemented through the development of collaborative conservation plans for individual species management units that are adopted by the Oregon Fish and Wildlife Commission. To date, the ODFW has implemented this policy by following the federally adopted recovery plan and will continue to conserve Borax Lake chub according to the State rules for conserving native fish and more specifically the commitments made by the ODFW in the CMP. The State of Oregon Wildlife Diversity Plan (OAR 635-100-0080), Oregon Native Fish Conservation Policy (OAR 636-007-0502), and the Oregon Conservation Strategy (ODFW 2016) provide additional authorities and protective measures for the conservation of native fish, including the Borax Lake chub.

Thus, the protections of ODFW's Native Fish Conservation Policy, and policy on geothermal development permitting, as well as the establishment of a dedicated water right for conservation at Borax Lake, provide for significant ongoing protection and allow for critical review of future development projects. In the event ODFW delists the species under the State ESA, we conclude that none of these protections will be weakened due to the fact Borax Lake chub will still meet criteria under these policies.

Additionally, although not a regulatory mechanism, the CMP, which was prepared jointly and signed by the BLM, ODFW, and Service, is a conservation measure that will guide future management and protection of the Borax Lake chub, regardless of its State or Federal listing status. The CMP, as explained in more detail under Recovery and Recovery Plan Implementation, above, identifies actions to be implemented by the BLM, ODFW, and Service to provide for the long-term conservation of the Borax Lake chub. The approach of developing an interagency CMP for the Borax Lake chub to promote continued management post-delisting is consistent with a “conservation-reliant species,” described by Scott et al. (2005, pp. 384-385) as those that have generally met recovery criteria but require continued active management to sustain the species and associated habitat in a recovered condition.

Significant regulatory protections are provided to the Borax Lake ecosystem from the conservation ownership of Borax Lake and surrounding lands by TNC (320 ac; 129 ha), withdrawal of Borax Lake waters from appropriation, the mineral withdrawal within the Alvord KGRA under the 2000 Steens Act, and the mineral withdrawal and management guidelines under the BLM's ACEC around Borax Lake (600 ac; 243 ha); these protections remain unchanged with the delisting of the Borax Lake chub under the Act. While State and Federal regulatory mechanisms exist that would protect the Borax Lake ecosystem from potential effects of development of geothermal resources on 2,000 ac (809 ha) of private land in proximity to Borax Lake, they do not guarantee a development proposal would not legally proceed to implementation. They do, however, ensure State and Federal natural resource agencies will be made aware of any proposals moving forward for permitting ( e.g., DOGAMI) and that comments by applicable State and Federal resource agencies will be considered. As noted previously, DOGAMI requires geothermal developers to provide baseline information to show there would be no connection to geothermal or groundwater in areas of environmental concern ( e.g., Borax Lake or the BLM's designated ACEC near Borax Lake). Similarly, the EFSC requires that a proposed facility comply with the habitat mitigation goals and standards of the ODFW as defined in OAR 635-415-0025. These regulatory mechanisms do not completely remove potential risk to the Borax Lake chub from geothermal development, but they do reduce the likelihood of impact from development on private lands in the vicinity of Borax Lake.

The 1982 listing rule (47 FR 43957; October 5, 1982) did not identify any other natural or human-caused factors affecting the Borax Lake chub or its habitat. No threats have arisen under this threat factor since that time, and none are anticipated in the foreseeable future. Potential impacts of climate change are addressed in this final rule under A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range, above.

The primary factors that threatened the Borax Lake chub at the time of listing (47 FR 43957; October 5, 1982) were potential impacts from geothermal energy development, diversion of the lake's outflows by alteration of the shoreline crust, and potential development of a recreation facility. Most of these threats or potential threats have been removed or ameliorated by the implementation of actions identified in the Borax Lake Chub Recovery Plan (see the discussion of downlisting criteria under Recovery and Recovery Plan Implementation, above). Actions that have been taken to reduce or eliminate the destruction and modification of Borax Lake chub habitat (Factor A) include acquisition of Borax Lake by TNC, the BLM's designation of adjacent lands as an ACEC, protection of subsurface and surface waters, protection from mineral withdrawal, and closure of fragile lands to livestock grazing and unauthorized vehicle access.

Proposals to develop geothermal energy resources in the vicinity of Borax Lake have occurred sporadically over the last 4 decades, and for that reason, it is reasonable to expect additional proposals to develop geothermal energy are likely in the foreseeable future. However, none of these proposals has moved forward with implementation over a 4-decade period, and this history leads us to conclude that the likelihood of geothermal energy development in the vicinity of Borax Lake in the foreseeable future is low. Furthermore, while geothermal development in the vicinity of Borax Lake is considered a potential threat to the Borax Lake chub, the precise effects of possible geothermal development on the species are uncertain and unpredictable given the unknown nature of geothermal fluids and their behavior deep underground. The response of the species would depend upon the specifics ( e.g., scale of the project and proximity to Borax Lake) of any geothermal energy development that might proceed to the implementation phase. Depending on the circumstances of any particular project, such development could potentially have a negative effect on the species, or it might have no or negligible effects. The possibility of geothermal development in the vicinity of Borax Lake will continue to represent a potential threat to Borax Lake chub and its habitat, but we have determined the likelihood of this threat becoming operative in the foreseeable future is low.

Climate change may increase the frequency and duration of above average air temperatures; when these periods coincide with warm geothermic water temperature, the combined effect may lead to reductions in the amount and suitability of habitat for Borax Lake chub. Water temperatures regularly exceed the proposed thermal maximum for the species, and above average air temperatures may reduce the cooling of the water at the surface. However, shallow-water thermal refuge habitats around the margins of Borax Lake (the overflow channel and wetland), cool and cold water vents within the lake, increased wind velocity predicted through climate change, along with the species' ability to rebound quickly following periods of low population abundance, are expected to provide resilience against potential future effects of climate change to the Borax Lake chub.

Factor B (overutilization for commercial, recreational, scientific, or educational purposes), Factor C (disease or predation), and Factor E (other natural or manmade factors affecting its continued existence) were not identified as threat factors in the listing of Borax Lake chub in 1982 (47 FR 43957; October 5, 1982), and these factors are currently not known to be threats to the Borax Lake chub now or in the foreseeable future.

We conclude that existing regulatory mechanisms (Factor D) provide significant protections to Borax Lake chub and its habitat, especially on Federal lands, and address most of the reasons that the species was listed; we have no information to suggest that these regulatory mechanisms will change in the foreseeable future. No regulatory mechanisms are in place that fully prevent geothermal development on private lands in the vicinity of Borax Lake. However, we determined that this potential threat is not likely to manifest in the foreseeable future; therefore, we find that there is no need for additional regulatory mechanisms to address geothermal development.

In our proposed rule published on February 26, 2019 (84 FR 6110), we requested that all interested parties submit written comments on the proposal by April 29, 2019. We also requested public comments on the draft post-delisting monitoring plan. We contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. We did not receive any requests for a public hearing.

During the comment period, we received 22 letters or statements directly addressing the proposed action, including 3 from peer reviewers, 1 from the State, and 18 from the public. All comments are posted at http://www.regulations.gov under Docket No. FWS-R1-ES-2017-0035. Some public commenters and the State support the delisting of the Borax Lake chub, some did not state whether or not they support the delisting, and others do not support delisting, although a subset of these would support downlisting to threatened status. The 3 peer reviewers do not support the delisting; however, two peer reviewers would support the species' downlisting to threatened status under the Act.

We reviewed all comments we received from the peer reviewers, the State, and the public for substantive issues and new information regarding the Borax Lake chub. Substantive comments we received during the comment period are addressed below and, where appropriate, are incorporated directly into this final rule and the post-delisting monitoring plan.

Section 4(b)(5)(A)(ii) of the Act states that the Secretary must give actual notice of a proposed regulation under section 4(a) to the State agency in each State in which the species is believed to occur, and invite the comments of such agency. Section 4(i) of the Act directs that the Secretary will submit to the State agency a written justification for his or her failure to adopt regulations consistent with the agency's comments or petition. We solicited and received comments from the Oregon Department of Fish and Wildlife (ODFW). The ODFW supports our delisting of the Borax Lake chub.

Comment (1): Three peer reviewers and four public commenters identified climate change as a potential threat to the long-term persistence of the species and stated that Federal protection under the Act should be maintained until we have a complete understanding of the potential impacts of climate change. The peer reviewers and commenters identified multiple potential effects of climate change, primarily the influence of increased air temperature on water temperature, and its influence on the long-term persistence of Borax Lake chub due to impacts on survival, recruitment, and habitat suitability.

Response: Climate change remains a concern for the long-term conservation of many aquatic species, including the Borax Lake chub. However, in the case of the Borax Lake chub, we do not find this concern rises to the level of justifying the retention of the species' status as endangered, or reclassifying it to threatened status. Although we do not fully understand the relationship between air temperature and other factors influencing water temperature at Borax Lake, nor the mechanisms that enable Borax Lake chub to persist during periods of high water temperature, the species has shown tremendous capacity to recover from periods of thermal stress, as we have detailed above under Summary of Factors Affecting the Species and the “Delisting Criterion 1” discussion. While our lack of complete knowledge of the mechanisms at work does not prohibit us from determining if the species requires protection under the Act, we acknowledge the concerns of the reviewers about how the impacts of climate change may impact the species in the future. We have modified the PDM to expand and extend the temperature monitoring currently conducted by ODFW, as suggested by several reviewers, to gain more knowledge on trends in water temperature in Borax Lake over time. We included a threshold in the PDM that would trigger the need to visit Borax Lake and assess the condition of the species and the habitat during high temperature periods; staff from BLM or ODFW would conduct this assessment. In addition, during the PDM period, the Service and our partners will evaluate the feasibility of establishing a refuge population of Borax Lake chub at a yet-to-be-determined location in the Alvord Basin as a long-term conservation measure for the species. Lastly, if climate change degrades habitat to the point that the likelihood of the species' persistence into the foreseeable future is low, we have the discretion to use the emergency listing authorities under section 4(b)(7) of the Act, such as we used in the May 28, 1980, emergency listing of the Borax Lake chub (45 FR 35821), and will exercise it as appropriate.

Comment (2): Two peer reviewers and one public commenter highlighted that the uncertainty of factors influencing spawn timing, recruitment success, and age structure impedes the accurate prediction of the effects of climate change on the species and its habitat.

Response: Early work on the Borax Lake chub focused heavily on determining life-history characteristics of the species and evaluating the factors identified by the commenters. We acknowledge that we do not have a complete understanding of these factors, but determine that the best available scientific and commercial information supports our conclusion that the species has sufficient resiliency to withstand the predicted temperature increases, and we do not need complete clarity regarding these factors before we can assess the potential impacts of climate change. As discussed above under Summary of Factors Affecting the Species, the Borax Lake chub has demonstrated flexibility and variability in its life history, and the ability to quickly rebound following mortality events, which will make the species resilient to climate change.

Borax Lake chub have a prolonged spawning period, approximately October through April, although spawning appears to be infrequent through the winter. Although it is possible that increased temperatures in the fall and spring due to climate change may alter spawn timing, given the long duration over which spawning currently occurs, increased temperatures during these periods are not expected to impact the species. We have no information to determine if spawning is more successful in the fall or spring.

Comment (3): One peer reviewer identified the potential risk of habitat loss due to a possible collapse of the lake shore in the event of an earthquake.

Response: While we acknowledge there is scientific evidence the lake shore has collapsed from past earthquake activity, these catastrophic events happen on geologic timescales that far exceed our predictive capabilities. In addition, despite evidence of past lake shore collapse, the Borax Lake chub has continued to persist. In acknowledgement of the species' rarity and potential vulnerability to catastrophic events, the Service and our partners will evaluate, during the PDM period, the feasibility of establishing a refuge population of Borax Lake chub at a yet-to-be-determined location in the Alvord Basin as a long-term conservation measure for the species.

Comment (4): One peer reviewers noted that the impacts of disease are not clear, and the species may be more susceptible to disease under increased thermal stress caused by climate change.

Response: We are not aware of any impacts to the persistence of the species due to disease. Following periods of increased water temperature, we have not observed changes to the biology, condition, or population abundance of the species that would lead us to conclude that stress from increased thermal load leaves the species more vulnerable to disease. During a cursory fish health examination, 9 of 114 (7.8 percent) fish examined were found to contain a parasitic nematode (Scoppettone et al. 1995, p. 39), but to our knowledge no other surveys for disease have been performed. As a part of an ongoing investigation of the role of disease and parasites in Oregon's nongame fish species, ODFW plans to study the pathogens in Borax Lake chub during the PDM period. Potential effects on the persistence of the species will be unknown until the prevalence and impacts of disease are manifest.

Comment (5): One peer reviewer and four public commenters identified isolation of Borax Lake as a potential threat to the long-term persistence of the species.

Response: Species with a limited range are inherently more at-risk from threats than species with broad distribution. However, natural rarity ( i.e., a species that only exists in one or a few locations, though it may be abundant there), in and of itself does not constitute a threat under the Act. Natural rarity may increase risk or vulnerability if threats are operative ( i.e., acting) on the species or its habitat now or in the foreseeable future, but rarity alone, in the absence of an operative threat, does not make the species warranted for protection under the Act. In some circumstances, isolation provides refuge from contagions, such as disease and invasive species.

In acknowledgement of the species' rarity and potential vulnerability to a catastrophic event, the Service and our partners will evaluate, during the PDM period, the feasibility of establishing a refuge population of Borax Lake chub at a yet-to-be-determined location in the Alvord Basin as a long-term conservation measure for the species.

Comment (6): One public commenter noted that Borax Lake chub population abundance was generally unstable, and identified the need for population stability prior to delisting.

Response: Population variability, with opportunistic demographic resilience, is relatively common for small-bodied desert fishes in the Cyprinid family of fishes (Winemiller 2005, pp. 878-879). The ability of the population to rapidly respond to changes in habitat condition is likely an adaptation that has made the species resilient in Borax Lake. We do not have concerns that interannual fluctuations in adult abundance pose a threat to the persistence of the species.

Comment (7): One public commenter expressed concern about predation on Borax Lake chub.

Response: Predation was not identified at the time of listing as a threat, and we do not view predation as a threat now or in the foreseeable future. Water temperature and chemistry at Borax Lake create unsuitable habitat conditions for most common aquatic predatory species that might be illegally introduced. Several native species that are likely predators of Borax Lake chub, such as garter snakes and common grebes, are found in and around Borax Lake. The Borax Lake chub both evolved and has persisted in this habitat in the presence of these predatory species.

Comment (8): One public commenter noted that Borax Lake chub are categorized “vulnerable” by the International Union for the Conservation of Nature (IUCN), and this demonstrates the need to maintain protections for the species under the Act.

Response: Although the species is listed as vulnerable by the IUCN, this does not automatically equate to the need for Federal protections under the Act. Like many narrow endemic species, Borax Lake chub will remain vulnerable to threats. However, the threats that led to the Federal listing of the species have been ameliorated to the degree that we have determined protections under the Act are no longer warranted. Monitoring of the status of Borax Lake chub will be maintained following the delisting of the species through the PDM. Additional monitoring and other conservation efforts will be conducted through the CMP, although we do not rely on the CMP for this delisting determination.

Comment (9): Four public commenters expressed concern that the threat of geothermal development in proximity to Borax Lake has not been fully ameliorated, and this threat may increase if Federal protections are removed.

Response: As discussed in detail above under Summary of Factors Affecting the Species, Factors A and D, since the Borax Lake chub was federally listed under the Act, there have been several changes in land ownership and management that greatly reduce the likelihood of geothermal development in proximity to Borax Lake, including passage of the Steens Act of 2000, the BLM's designation of 600 ac (243-ha) around Borax Lake as an ACEC, and the acquisition by TNC of 320 ac (130 ha) that contain and border Borax Lake, which put all critical habitat for the species under public or conservation ownership. The combination of these regulatory and conservation-driven protections greatly reduce the potential for impacts to Borax Lake chub from any future geothermal development.

That said, we acknowledge some privately owned land surrounding Borax Lake is not subject to BLM's withdrawal, and proposals to develop geothermal energy resources in the Borax Lake vicinity occurred sporadically in the past. However, no past proposals have moved forward over a 4-decade period, and the likelihood of geothermal energy development now and in the foreseeable future is low. Furthermore, the precise effects of possible geothermal development on the species are uncertain and unpredictable, depending on the project scale and proximity to Borax Lake. If an assessment suggested a future geothermal project would likely cause significant risk to Borax Lake and the well-being of Borax Lake chub, we have the discretion to use the emergency listing authorities under section 4(b)(7) of the Act. The possibility of geothermal development in the vicinity of Borax Lake will continue to represent a potential threat to Borax Lake chub and its habitat, but we have determined the likelihood of this threat becoming operative in the foreseeable future is low.

Comment (10): Three public commenters noted that there is scientific uncertainty in the Service's decision to delist, and while the species has met recovery criteria, it may become an endangered species again in the future.

Response: There is almost always uncertainty associated with scientific data and predictions of such data into the future. Uncertainty is not a reason to keep a species listed under the Act if it no longer meets the definition of an endangered or a threatened species. We must delist species that we determine no longer meet the Act's definitions of a threatened species or an endangered species. The Borax Lake chub has clearly met recovery criteria and does not have operative threats now or in the foreseeable future. If unforeseen threats arise that are determined to endanger or threaten the long-term persistence of Borax Lake chub, we have the discretion to use the emergency listing authorities under section 4(b)(7) of the Act, such as we used in the May 28, 1980, emergency listing of Borax Lake chub (45 FR 35821).

Comment (11): Four public commenters expressed concerns about land use at and around Borax Lake, and potential impacts to the species. The commenters specifically mentioned development, over-fishing, grazing and livestock use, and vehicle access.

Response: Although signs of historical development, vehicle, and livestock use are present around Borax Lake, this use occurred prior to the construction of a perimeter fence by the BLM and TNC in 2011. Some unauthorized access has occurred since 2011, and the BLM and TNC quickly responded and modified the fence and gate to prohibit further unauthorized vehicle access. There is some use of Borax Lake by the public, but the threat of impacts to the habitat by vehicle use has been mitigated. We are not aware of any harvest of Borax Lake chub by the public and do not agree that over-fishing will threaten this species in the future. Similarly, concerns over development in the region are not likely to manifest themselves in the near future, as the Alvord basin is sparsely populated, and Borax Lake is roughly 3 mi (4.8 km) away from the nearest privately owned property; in addition, the likelihood of geothermal development is considered low. We conclude that land use is not likely to impact Borax Lake chub in the foreseeable future.

Comment (12): Two peer reviewers highlighted the value of water temperature monitoring at multiple locations in Borax Lake during the PDM period to provide information on the impacts of climate change on water temperatures. In addition, the reviewers identified the need for triggers in the PDM in response to high summer water temperatures that would signal the need to assess Borax Lake chub population abundance. One of the reviewers specified the need for a plan to monitor and respond to short-term events that require immediate management.

Response: Although it was not discussed in the draft PDM, ODFW has maintained water temperature monitoring equipment at multiple locations around Borax Lake since 2005. In 2011, ODFW installed additional monitoring equipment to track water depth, air pressure, and air temperature. These data are useful for observing trends in habitat suitability, and provide context for the population monitoring. We have added temperature monitoring as a component of the PDM.

Previous mortality events have occurred during periods when high water and air temperatures coincided. Although we have no plans to remotely monitor water temperatures, monitoring Borax Lake during times of high air temperature may be prudent. To accomplish this, we have added an additional monitoring trigger to the PDM: If maximum daily air temperature is projected to exceed 37.8 °C (100 °F) for 7 consecutive days, or maximum daily air temperature exceeds 45 °C (113 °F) on a single day, based on regional forecasting. The selection of these air temperature thresholds were based on high temperatures observed over the last decade.

In response to this trigger, managers will plan a site visit to assess the health of the chub population. This would include walking the shoreline to check water temperature, and visually detect mortalities and locate live fish. If live fish are not observed, managers will plan to set minnow traps for brief periods ( e.g., 1 to 3 hours) in areas where water temperatures are the coolest. If no fish are captured in minnow traps, managers will conduct an assessment of the population under the protocols described in the PDM at the earliest possible time. This will be done once air and water temperatures cool, to lessen stress to the fish.

Comment (13): One peer reviewer recommended incorporating regular aquatic invasive species monitoring in the PDM.

Response: The draft PDM stated that monitoring should follow the protocols established by ODFW (Scheerer et al. 2012, p. 4), but it did not provide details regarding methodology. We included additional detail in the final PDM to address this issue and provide more clarity. Since 2005, managers have conducted annual shoreline surveys to take pictures of Borax Lake from established photo points, maintain data logging equipment, and assess the condition of the shoreline and extent of vegetative growth in the wetland. The survival of nonnative species in Borax Lake is unlikely given the high water temperatures and water chemistry. We developed an additional PDM trigger if a nonnative species likely to prey on Borax Lake chub, compete with Borax Lake chub, or otherwise negatively impact the habitat suitability of Borax Lake or the life history of Borax Lake chub is detected.

Comment (14): One peer reviewer suggested population monitoring of Borax Lake chub every 2 years, rather than 3 as written in the draft PDM, based on the current demographic information.

Response: Regular population monitoring is important during the PDM period, but we have concluded that sampling every 3 years is prudent. The age structure and life history of Borax Lake chub is poorly understood, and some biologists have speculated that the species might be primarily an annual species (Scheerer et al. 2015, p. 9). Previous mortality events appear to occur during periods when high water and air temperatures coincided, and thus we included a PDM trigger to assess the population following a period of thermal stress, as described under our response to Comment (12). We have concluded that monitoring every 3 years, with additional sampling following of periods of high air temperature, will provide enough information to assess the health of the population during the PDM period.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of an “endangered species” or “threatened species.” The Act defines an “endangered species” as a species that is “in danger of extinction throughout all or a significant portion of its range” and a “threatened species” as a species “that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether a species meets the definition of “endangered species” or “threatened species” because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we found that significant threats identified at the time of listing (47 FR 43957; October 5, 1982) have been eliminated or reduced. We recognize that under Factor A (the present or threatened destruction, modification, or curtailment of its habitat or range), the possibility of geothermal development in the vicinity of Borax Lake will continue to represent a potential threat to the Borax Lake chub and its habitat, but we have determined the likelihood of this threat becoming operative in the foreseeable future is low. We did not identify any other threats from development on private lands in the vicinity of Borax Lake. We have identified climate change as a new potential threat to the Borax Lake chub, but the magnitude and frequency of this potential threat are generally unknown at this time. The largest impact identified by the potential threat of climate change is related to cumulative impacts of increased air temperature and variability in geothermal water temperature, yet the species' capacity to persist through changes in temperatures has been well demonstrated. In the fall of 2017, the estimated population abundance for Borax Lake chub was twice as high as any previous estimate while water temperature was higher than the suggested thermal tolerance for a longer duration than any period in the 2005-2016 record. We conclude that there are no threats to the Borax Lake chub under Factor B (overutilization for commercial, recreational, scientific, or educational purposes), Factor C (disease or predation), or Factor E (other natural or manmade factors affecting its continued existence). We conclude that under Factor D (the inadequacy of existing regulatory mechanisms), the existing regulatory mechanisms provide significant protections to the Borax Lake chub and its habitat, especially on Federal lands, but they do not address potential impacts of geothermal development on private lands. However, the BLM designated 520 ac (210 ha) of public land surrounding Borax Lake as an ACEC to protect Borax Lake chub and its habitat, and regulatory mechanisms exist that would ensure State and Federal natural resource agencies will be made aware of and provide comment on any private development proposals moving forward for permitting. Therefore, we have determined that the likelihood of the threat of geothermal development in the vicinity of Borax Lake becoming operative in the foreseeable future is low; therefore, no regulatory mechanisms are needed to address this potential threat. All of these threats apply similarly throughout the range of the species in Borax Lake.

Thus, after assessing the best available information, we conclude that the Borax Lake chub is not currently in danger of extinction, and is not likely to become so within the foreseeable future, throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range.

Having determined that the Borax Lake chub is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range, we now consider whether it may be in danger of extinction or likely to become so in the foreseeable future in a significant portion of its range. The range of a species can theoretically be divided into portions in an infinite number of ways, so we first screen the potential portions of the species' range to determine if there are any portions that warrant further consideration. To do the “screening” analysis, we ask whether there are portions of the species' range for which there is substantial information indicating that: (1) The portion may be significant; and (2) the species may be, in that portion, either in danger of extinction or likely to become so in the foreseeable future. For a particular portion, if we cannot answer both questions in the affirmative, then that portion does not warrant further consideration and the species does not warrant listing because of its status in that portion of its range. We emphasize that answering both of these questions in the affirmative is not a determination that the species is in danger of extinction or likely to become so in the foreseeable future throughout a significant portion of its range—rather, it is a step in determining whether a more detailed analysis of the issue is required.

If we answer these questions in the affirmative, we then conduct a more thorough analysis to determine whether the portion does indeed meet both of the significant portion of its range prongs: (1) The portion is significant; and (2) the species is, in that portion, either in danger of extinction or likely to become so in the foreseeable future. Confirmation that a portion does indeed meet one of these prongs does not create a presumption, prejudgment, or other determination as to whether the species is an endangered species or threatened species. Rather, we must then undertake a more detailed analysis of the other prong to make that determination. Only if the portion does indeed meet both significant portion of its range prongs would the species warrant listing because of its status in a significant portion of its range.

At both stages in this process—the stage of screening potential portions to identify any portions that warrant further consideration and the stage of undertaking the more detailed analysis of any portions that do warrant further consideration—it might be more efficient for us to address the “significance” question or the “status” question first. Our selection of which question to address first for a particular portion depends on the biology of the species, its range, and the threats it faces. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the second question for that portion of the species' range.

We evaluated the range of the Borax Lake chub to determine if any area may be a significant portion of the range. The Borax Lake chub is a narrow endemic that functions as a single, contiguous population and occurs within a very small area. The species occurs in Borax Lake in the Alvord Basin and its historical known natural range is limited to Borax Lake and associated outflows and wetlands. Based on the small range of the Borax Lake chub, approximately 10.2-ac (4.1-ha), we determined that there are no separate areas of the range that are likely to be of greater biological or conservation importance than any other areas due to natural biological reasons alone. Every threat to the species in any portion of its range is a threat to the species throughout all of its range, and so the species has the same status under the Act throughout its narrow range. Therefore, we conclude, based on this screening analysis, that the species is not in danger of extinction or likely to become so in the foreseeable future in any significant portion of its range. Our conclusion—that we do not undertake additional analysis if we determine that the species has the same status under the Act throughout its narrow range—is consistent with the courts' holdings in Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018); Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017); and Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020).

Our review of the best available scientific and commercial information indicates that the Borax Lake chub does not meet the definition of an endangered species or a threatened species in accordance with sections 3(6) and 3(20) of the Act. Therefore, we are removing the Borax Lake chub from the List of Endangered and Threatened Wildlife.

This rule revises 50 CFR 17.11(h) to remove the Borax Lake chub from the Federal List of Endangered and Threatened Wildlife. On the effective date of this rule (see DATES , above), the prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, no longer apply to this species, and Federal agencies are no longer required to consult with the Service under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect the Borax Lake chub. This final rule also revises 50 CFR 17.95(e) by removing the designated critical habitat for Borax Lake chub throughout its range. Current State laws protecting the Borax Lake chub will likely remain enforceable and continue to provide protection for this species.

Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a system to monitor effectively, for not less than 5 years, all species that have been recovered and delisted. The purpose of this post-delisting monitoring is to verify that a species remains secure from risk of extinction after it has been removed from the protections of the Act. The monitoring is designed to detect the failure of any delisted species to sustain itself without the protective measures provided by the Act. If, at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing under section 4(b)(7) of the Act. Section 4(g) of the Act explicitly requires us to cooperate with the States in development and implementation of post-delisting monitoring programs, but we remain responsible for compliance with section 4(g) of the Act and, therefore, must remain actively engaged in all phases of post-delisting monitoring. We also seek active participation of other entities that are expected to assume responsibilities for the species' conservation post-delisting.

We prepared a PDM plan for the Borax Lake chub, building on and continuing the research that has taken place in the time since the species was listed. The PDM plan discusses the current status of the taxon and describes the methods to be used for monitoring after the taxon is removed from the Federal List of Endangered and Threatened Wildlife. Monitoring Borax Lake chub under the PDM will follow the same sampling protocol used by the ODFW prior to delisting. Monitoring will consist of several components: Borax Lake chub abundance, invasions of nonnative species, potential adverse impacts during periods of high air temperature, potential adverse changes to Borax Lake chub habitat, and monitoring DOGAMI for drilling applications. The PDM will consist of annual monitoring of all components, except surveys to estimate population abundance, which will be conducted once every 3 years over a 10-year period (four population surveys total), which will begin following the effective date of this rule (see DATES , above). Given the Borax Lake chub is a short-lived fish (few survive beyond 1 year; Scoppettone et al. 1995, p. 36), periodic monitoring over this time period will allow us to address any possible negative effects to the Borax Lake chub. Additionally, the chub experienced wide fluctuation in its population year-to-year. Limited point estimates for a widely fluctuating population can lead to difficulty assessing long-term trends. Therefore, although the minimum PDM period required by the Act is 5 years, as described above, we chose to extend the population abundance monitoring cycle to once every 3 years and the total monitoring period to 10 years to ensure we can accurately measure changes in trends.

The PDM plan identifies measurable management thresholds and responses for detecting and reacting to occurrence of nonnative species or significant changes in the Borax Lake chub's habitat, distribution, abundance, and persistence. If declines are detected equaling or exceeding these thresholds, the Service, in combination with other PDM participants, will investigate causes of these declines, including considerations of habitat changes, substantial human persecution, stochastic events, or any other significant evidence. The result of the investigation will be to determine if the Borax Lake chub warrants expanded monitoring, additional research, additional habitat protection, or relisting as an endangered or a threatened species under the Act. If such monitoring data or an otherwise updated assessment of threats (such as specific information on proposed geothermal development projects) indicate that relisting the Borax Lake chub is warranted, emergency procedures to relist the species may be followed, if necessary, in accordance with section 4(b)(7) of the Act.

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ), need not be prepared in connection with regulations pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments (59 FR 22951), Executive Order 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes.

We do not believe that any Tribes will be affected by this rule. However, we contacted the Burns Paiute Tribe to coordinate with them regarding the proposed rule to delist the Borax Lake chub. We provided the Tribe with a copy of the proposed rule and draft PDM, but we did not receive any comments from them.

A complete list of all references cited in this final rule is available at http://www.regulations.gov at Docket No. FWS-R1-ES-2017-0035 or upon request from the person listed under FOR FURTHER INFORMATION CONTACT .

The primary authors of this final rule are staff members of the Service's Oregon Fish and Wildlife Office.

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

Between September 2014 and April 2016, the Pacific Fishery Management Council (Council) developed and considered management measures to address a range of vessel and gear movement issues and aggregated these issues under a single vessel movement monitoring agenda item. The Council deemed the proposed regulations consistent with and necessary to implement this action in a July 17, 2019, letter from Council Executive Director, Chuck Tracy, to Regional Administrator Barry Thom. Additional background information on each of the measures included in this final rule are included in the proposed rule, published on October 10, 2019 (84 FR 54579), and is not repeated here.

This section discusses regulatory revisions that are expected to increase NMFS' ability to enforce fishing activity in and around restricted areas, and result in cost savings, increased profitability, and flexibility for the groundfish fishery. This final rule:

• Increases the position transmission rate requirements for certain vessels using NOAA NMFS type-approved vessel monitoring system (VMS) units;

• Amends the definition for continuous transit;

• Allows midwater trawl vessels participating in the Pacific whiting fishery to change their landing declarations while at sea;

• Exempts groundfish trawl vessels from observer coverage while testing authorized fishing gear; and

• Allows shorebased Individual Fishing Quota (IFQ) fixed gear vessels to retrieve pot gear in one management area and deploy that gear in another management area on a single trip.

Vessels participating in the limited entry groundfish fishery (limited entry “A” endorsed permit), any vessels using non-groundfish trawl gear (ridgeback prawn, California halibut, and sea cucumber trawl) in the Exclusive Economic Zone (EEZ), and any vessels that use open access gear to take and retain or possess groundfish in the EEZ or land groundfish taken in the EEZ (salmon troll, prawn trap, Dungeness crab, halibut longline, California halibut line gear, and sheephead trap), are required to install a NMFS Office of Law Enforcement (OLE) type-approved mobile transceiver unit and to arrange for a NMFS OLE type-approved communications service provider to receive and relay transmissions to NMFS OLE prior to fishing. These units automatically record a vessel's position ( i.e., the vessel's geographic location in latitude and longitude coordinates), and transmit those coordinates to a communications service provider. The current regulations require that VMS units transmit a vessel's position once every hour, 24 hours a day throughout the fishing year. Less frequent position reporting, at least once every 4 hours, may be authorized when a vessel has temporarily paused participation in the fishery and remains in port for an extended period of time. The VMS units record vessel positions at a random time during each hour so that vessel operators are unaware of when the vessel position is being recorded.

The Council recommended increasing the vessel position frequency to increase NMFS' ability to enforce fishing activity around restricted areas. This action increases the position transmission rate to every 15 minutes per hour for groundfish vessels required to use NMFS type-approved VMS units. This increase in frequency will produce more course, location, and speed data to improve NMFS' ability to identify whether vessels are continuously transiting in restricted areas or not.

Increasing the VMS position transmission rate from once every hour to every 15 minutes will increase vessel operating costs. While vessels can choose from a variety of VMS service providers, the average monthly operating costs for transmissions every 15 minutes is $105 per month ($69 to $150 range) compared to an average of $50 per month ($37 to $65 range) for a single transmission per hour.

The final rule also adds two exemptions that will reduce redundant reporting and may provide cost savings to some portions of the fleet. For the first exemption, vessels that have installed and are using electronic monitoring (EM) systems for the duration of the fishing year can maintain the current position transmission rate of one transmission per hour. EM systems include a Global Positioning System (GPS) that records the vessel position every 10 seconds. Because EM systems record vessel positions so frequently, it is not necessary to also increase the VMS position transmission rates. The GPS data are recorded to a hard drive, which the captain removes every 10 days and mails to the Pacific States Marine Fisheries Commission. For the second exemption, limited entry trawl vessels fishing with midwater trawl gear can maintain the current position transmission rate of one transmission per hour. Limited entry vessels are only allowed to use midwater trawl gear to target whiting or non-whiting groundfish species during the primary whiting season from May 15 to December 31 each year. These vessels are also limited to using midwater trawl gear seaward of the boundary line approximating the 150 fm (274 m) depth contour (defined at 50 CFR 660.73) south of 40°10′ North (N) latitude (lat.), but can use midwater trawl gear anywhere within the EEZ north of 40°10′ N lat. Because there are only very broad seasonal and area restrictions associated with midwater trawl gear, and because these vessels are not generally subject to smaller geographic areas restrictions such as essential fish habitat conservation areas (EFHCAs), the increased position transmission rate is not necessary for restricted area enforcement for vessels using midwater trawl gear. Limited entry vessel operators are allowed to change their transmission rates or VMS declaration reports on a trip-by-trip basis when necessary.

This rule revises the current definition of “continuous transiting or transit through” to encompass a broader array of vessel activity that is akin to loitering within a restricted area, whether that be by means of a source of power or by drifting with the prevailing water current or weather conditions. Under this revised definition, visual, electronic, or other evidence of vessel activity should provide information on vessel speed and course sufficient to indicate direct and expeditious transiting of a restricted area.

This final rule establishes a definition for gear testing. The definition states that gear testing is the deployment of lawful gear without retaining fish, for purposes, including, but not limited to: Deployment of nets using open codends; calibration of engines and transmission under load ( i.e., towing a net with an open codend); deployment of wire and/or doors; testing new electronic equipment associated with deploying fishing gear; and testing and calibration of newly installed propulsion systems ( i.e., engine, transmission, shaft, propeller, etc.).

This final rule also exempts groundfish vessels participating in the shorebased IFQ, Mothership (MS), and Catcher-Processor (C/P) sectors from the requirement to carry an observer while testing gear. Vessels participating in these sectors are subject to a 100 percent observer requirement while conducting fishing activity. However, a vessel would not need an observer while testing gear because gear testing activity would specifically prohibit retaining fish. In addition to being prohibited from retaining fish while gear testing, vessels would be prohibited from testing experimental gear, testing with a closed codend, terminal gear, or with open pots, and from testing gear in groundfish conservation areas or EFHCAs.

This final rule adjusts the declaration requirements for testing gear. To be exempted from observer coverage while testing gear, vessels need to communicate with both West Coast Groundfish Observer Program (WCGOP) and NMFS OLE. Vessels are required to notify WCGOP by phone or email, of the gear testing activity at least 48 hours prior to departing on a trip to test gear or equipment. This action also adds a VMS declaration code for “Gear testing.” When a vessel operator calls the West Coast Groundfish Declaration Line to declare “Gear testing,” the VMS technician will review the information submitted and determine if the vessel is eligible for this declaration. This measure will result in observer coverage cost savings on trips to test fishing gear or equipment.

This final rule revises restrictions on midwater trawl catcher vessels participating in the Pacific whiting fishery to allow them to change declarations while at sea by calling the West Coast Groundfish Declaration Line. After a vessel offloads onto a mothership, it can immediately change its declaration from one of the “Pacific whiting mothership sector” declarations to one of the “Pacific whiting shorebased IFQ” declarations to make a tow and offload on shore, or vice versa. In the past, midwater catcher trawl vessels participating in the Pacific whiting fishery were restricted to landing either at a mothership or shoreside processor. After Pacific whiting catcher vessels have made their delivery obligation to a mothership, they were not allowed to make a tow for a delivery to a shoreside processor without returning to port first.

Allowing vessels to change their declarations at sea provides vessels the opportunity to optimize available resources before returning to port. As a result, vessels will spend less time at sea, and in transit to and from fishing ports, which will ultimately reduce the cost of fuel and crew.

The final rule allows shorebased IFQ fixed gear vessels retrieving pots from one management area to retain their catch on board and move to a second management area to deploy pots. These pots may be either baited or not baited. The vessel may then return to port to deliver their fish, then return to retrieve their pots from the second management area. Although the adjustment increases operational flexibility in deploying pots, vessels are still only permitted to retain and land fish from a single management area. This will ensure the integrity of data to support stock assessments and catch monitoring for a single management area. Overall, fishing vessels will spend less time at sea, which should reduce the cost of fishing.

NMFS received 13 comment letters during the comment period for the proposed rule. Commenters included Oceana, an environmental organization, the California Department of Fish and Wildlife, seven commercial fishermen, three fishing associations, and a private citizen. Only comments relevant to measures considered in the proposed rule are summarized and addressed below. Comments related to other fishery actions, general fishery management, or unrelated to fisheries are not addressed here. All public comment letters can be viewed along with the proposed rule and supporting documents for this action at www.regulations.gov.

Comment 1: Seven commercial fishermen and three fishing associations opposed increasing the VMS transmission rates from once-per-hour to four times per-hour because increasing the transmission rate will increase VMS operating costs.

Response: The Council recommended increasing the VMS transmission rate frequency to improve NMFS' capacity to enforce fishing activity around restricted areas. The analytic document and the preamble to the proposed rule discuss that the once-per-hour transmission rate is insufficient to prove that a vessel was not operating in continuous transit through a restricted area. The increased transmission frequency provides more course, location, and speed data to improve NMFS' ability to identify whether vessels are continuously transiting restricted areas or not.

In addition, NMFS recently revised the network of groundfish essential fish habitat (EFH) conservation areas, areas closed to either bottom trawling or bottom contact fishing gear, in Amendment 28 to the Pacific Coast Groundfish FMP (84 FR 63966; November 19, 2019). In April 2018, while the Council was developing Amendment 28, its Enforcement Committee evaluated the enforceability of proposed new and revised EFH conservation areas. The evaluation concluded that the once-per-hour transmission rate did not provide sufficient data to enforce 9 of the 46 areas recommended by the Council, noted that a four times-per-hour transmission rate greatly improved monitoring incursions, and recommended that NMFS expedite this action. NMFS estimates, based on the Enforcement Committee's prior evaluation, that three EFH conservation areas may continue to present enforcement challenges under the four times-per-hour transmission rate because of their narrow shape. Ultimately, the Council and NMFS determined that the conservation benefits from increasing our ability to enforce restricted areas justified the potential additional operating cost for fishery participants.

The Council did recommend an option to reduce the operating costs of increasing the VMS transmission rate. As an alternative, commercial fishermen would be allowed to use a non type-approved VMS unit. These units would not be NMFS type-approved, but meet NMFS reporting standards ( e.g., type and frequency of data collected, form of transmittal, ruggedized, and an encrypted format) with a reduced operating cost. NMFS OLE and the West Coast Region identified a number of implementation challenges in creating a non type-approved VMS program for the only the West Coast Region, including lack of funding and staffing resources. Ultimately, the Council withdrew its recommendation to implement a non type-approved VMS unit, but maintained its recommendation to increase the ping rate.

NMFS remains committed to exploring cost-effective solutions to meet regional and national monitoring needs. For example, on February 24, 2020, NMFS published a proposed rule to amend the national type-approval requirements (85 FR 4257). In an effort to improve location reporting and get more data at a lower cost to the fishermen, this proposed rule will allow for fishermen to use cellular-based transceiver types, as opposed to satellite-only models.

As data is much less expensive to send by cellular means than by satellite, this action could provide a more cost-effective option to require and receive beneficial fisheries data. The Council would need to evaluate the use of cellular-based systems for monitoring groundfish fisheries to fully understand coverage limitations and determine whether this tool is appropriate for the fishery.

Comment 2: California Department of Fish and Wildlife (CDFW) requested clarification about the vessels subject to the groundfish VMS requirement. The CDFW commented that the description of the measures in the proposed rule implies that additional vessels or fleets, including salmon troll, prawn trap, Dungeness crab, halibut longline, California halibut line gear, and sheephead trap, that were not previously subject to the requirement will now need to obtain and operate a VMS unit on trips. Two commercial fishermen questioned why the recreational fleet is not required to have VMS.

Response: This rule only modifies the frequency of VMS transmission rates, and does not modify the vessels or fleets that are subject to the VMS requirement. Currently, any vessel with a limited entry “A” endorsed permit, any vessel that uses non-groundfish trawl gear to fish in the EEZ, and any vessel that uses open access gear to take and retain, or possess groundfish, or land groundfish taken in the EEZ, is required to maintain an operational VMS unit. If vessels using open access gear do not take and retain, or possess groundfish, or land groundfish taken in the EEZ, then these vessels are not subject to the VMS requirement. All vessels and fleets that are currently subject to the VMS requirement are subject to the increased transmission rate. The Council did not consider including a VMS requirement for the recreational fishing fleet (including charter and private sectors) in this action.

Comment 3: Two commercial fishermen commented that VMS position transmission rates should be unpredictable so that vessels cannot deliberately evade location monitoring. They also commented that NMFS should work with service providers to develop store and forward capability for VMS software to reduce transmission costs.

Response: Vessels are required to use NMFS type-approved VMS units that have defined standards for basic features, described at 50 CFR 600.1500. These VMS units document a vessel's position a predetermined number of times per hour. For example, a four-times-per-hour requirement would result in positions documented every 15 minutes, and a six-times-per-hour requirement would result in positions documented every 10 minutes. For enforcement effectiveness, vessel operators and NMFS enforcement are unaware of exactly when the VMS unit is transmitting these position signals to the service providers. For example, with a four-times-per-hour requirement, the unit may transmit a position signal during the second minute of the first 15-minute interval of the hour, and during the tenth minute of the second 15-minute interval of the hour. Because operators are unaware of when the VMS units are recording and transmitting position information, it is unlikely that vessel operators will be able to alter their vessel trajectory to conceal prohibited fishing activities.

The National VMS program does not currently permit satellite store and forward for type-approved VMS units. NMFS OLE considered allowing the use of limited store and forward position, but determined that because the magnitude of monthly operating costs is based on the amount of data being transmitted, rather than the frequency of transmission, the potential for cost savings with store and forward for satellite VMS units is insignificant to nonexistent.

Comment 4: Oceana and one unaffiliated private citizen supported the changes to the VMS transmission frequency. They commented that the increased transmission frequency is necessary to adequately monitor and enforce conservation areas in federally managed groundfish fisheries including groundfish conservation areas, rockfish conservation areas and EFH conservation areas.

Response: NMFS agrees. The final rule implements the Council's recommendation to increase the VMS transmission frequency to four-per-hour, which will provide additional information on vessel location to more accurately monitor groundfish fisheries and conservation areas.

Comment 5: Oceana commented that NOAA should expand its use of enhanced electronic monitoring systems, including gear sensors that can indicate when fishing activity is occurring and GPS units that can make detailed and accurate records of vessel positions.

Response: NMFS encourages all fishery stakeholders, including the Fishery Management Councils, to consider implementing electronic technology (ET) options where appropriate to meet science, management, and data needs. NMFS released a national Policy on Electronic Technologies and Fishery-dependent Data Collection in 2013 to provide guidance on the implementation of ET solutions and in fisheries. An updated policy was released in May 2019. In 2015, NMFS implemented regional ET implementation plans informed by a series of national-level planning documents. These plans were created to help move beyond pilot projects by identifying, evaluating, and prioritizing implementation of promising electronic technologies in specific fisheries around the country. We are in the process of updating these plans, highlighting the lessons-learned from the last 4 years, and looking forward to 2024. The Pacific Council is scheduled to review a draft of the new ET plan at their June 2020 meeting. On the west coast, NMFS currently has an electronic monitoring program in place for two sectors of the groundfish fishery. Catcher vessels in the Pacific whiting fishery (shorebased Individual Fishing Quota (IFQ) and at-sea Mothership Catcher Vessels) are exempt from increasing their VMS transmissions to four times-per-hour while using EM. NMFS is also working to increase EM opportunities for the limited entry groundfish trawl fishery (including midwater trawl gear and bottom trawl gear). These EM systems include gear sensors and GPS units that can indicate when and where fishing activity is occurring.

Comment 6: One commercial fisherman commented that, in a personal communication with one of the VMS service providers, the service provider stated that the most frequent transmission rate for VMS systems nationwide is twice-per-hour. The commenter requested that NMFS consider implementing a VMS position transmission frequency of two times-per-hour to be consistent with other fisheries in the U.S., and to help reduce VMS costs.

Response: NMFS agrees that several fisheries in other regions require fewer than four position transmissions per hour but notes that the required position transmission rate for each fishery depends on the location monitoring needs of the fishery. For this reason, there is no standard, nationwide position transmission rate. As described in the response to Comment 1, the Council and NMFS determined that a more frequent position transmission rate is necessary to monitor area incursions for the Pacific Coast groundfish fishery. In its deliberations for this action, the Council did consider implementing position transmission frequencies of two- and three-times per hour. However, these alternatives were rejected because these position transmission frequencies did not provide frequent enough information for enforcement to determine a vessel's course or fishing activity in small restricted areas.

Comment 7: The Ventura County Commercial Fishermen's Association, the San Diego Fishermen's Working Group, and a private citizen commented that the current once per hour ping rate has proved to be an effective deterrent to illegal fishing in EFH Conservation Areas, Rockfish Conservation Areas, Marine Protected Areas and the multitude of other Reserves and Conservation Areas up and down the Pacific West Coast.

Response: VMS is a practical tool for monitoring vessel activity in relation to restricted areas. As described in the response to Comment 1, the new and revised closed areas implemented in Amendment 28 to the Pacific Coast Groundfish Fishery Management Plan require an increased VMS transmission rate to effectively monitor fishing activity. A VMS transmission rate of four-times-an-hour will improve monitoring to deter possible illegal fishing.

Comment 8: One commercial fisherman commented that NMFS should get location data from logbooks.

Response: Although logbooks require vessels to report coordinates for fishing activity, NMFS does not have the opportunity to review these coordinates until after the vessels have returned to port. VMS provides accurate information on the location of the vessel and can be used to identify where fishing activity takes place with a reasonable degree of accuracy while a trip is underway.

The VMS requirement also extends to a broader range of participants in the groundfish fishery than the logbook requirement. Currently, the groundfish trawl fleet is the only groundfish fleet required to submit a Federal logbook. Although trawl vessels are required to submit coordinates for each haul, the information provided in the logbooks only describes tow information, and does not include information about vessel trajectory. The VMS requirement for the groundfish fishery applies to vessels with a limited entry “A” endorsed permit, any vessel that uses non-groundfish trawl gear to fish in the EEZ, and any vessel that uses open access gear to take and retain, or possess groundfish, or land groundfish taken in the EEZ. For these reasons, VMS is currently a more comprehensive tool to monitor vessel movement than logbooks.

Comment 9: The South Bay Cable/Fisheries Liaison Committee and Ventura County Commercial Fishermen's Association believes there are going to be major structural changes to southern California Rockfish Conservation Areas (RCA) and possibly even the elimination of the Cowcod Conservation Areas (CCA) in this next groundfish specifications cycle. The groups requested that the Council reconsider its support for and its recommendation to increase the ping rate for groundfish vessels, and others.

Response: The Council is not planning to consider major adjustments to the non-trawl RCA or CCA in the 2021-2022 specifications action. The Council has, however, indicated it intends to consider changes to these management areas in a future action. The Council can evaluate monitoring needs for the non-trawl portion of the groundfish fleet in conjunction with that action.

Comment 10: Three commercial fishermen commented that due to restrictions on turning off the VMS unit when not fishing, the increase to annual VMS operating costs will be too expensive. The commenters asked NMFS to consider allowing a reduction in transmissions when a vessel is in port.

Response: NMFS acknowledges that there are situations in which fishermen may need to be exempted from operating their VMS units. The existing regulations already include an in port exemption that allows vessels to reduce their signals to at least once every four hours while a vessel remains in port for an extended period of time. In addition, vessels operating with EM and vessels fishing in the limited entry midwater trawl fishery are allowed to maintain at one signal per hour. Additional cost saving exemptions, such as the exemption recommended in the comment, would need to be considered through the Council process.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the Pacific Coast Groundfish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

The Office of Management and Budget has determined that this final rule is not significant for purposes of Executive Order (E.O.) 12866.

This final rule is considered an Executive Order 13771 deregulatory action. This final rule removes restrictions on catcher vessels to allow them to change their declarations while at sea. After a catcher vessel offloads onto a mothership, it can immediately change its declaration from the Pacific whiting mothership sector to Pacific whiting shorebased IFQ sector to make a tow and offload on shore, or vice versa. Removing this restriction creates additional flexibility for vessel operation and may increase revenues. This final rule eliminates the requirement for vessels participating in the shorebased IFQ Program and Mothership or Catcher-Processor cooperatives to carry an observer while testing fishing gear. Removing this restriction reduces operating costs while testing gear. Finally, the revised regulations allow pot gear (fixed gear) vessels retrieving gear from one management area to retain their catch on board and move to a second management area to deploy pots. The vessel may then return to port to deliver their fish, then return to retrieve their pots from the second management area. This change increases operational flexibility, while ensuring the integrity of data to support stock assessments and catch monitoring for a single management area.

Pursuant to Executive Order 13175, this final rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the Pacific Coast Groundfish FMP. Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council must be a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction.

This final rule does not contain policies with Federalism or “takings” implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.

This action is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement in accordance with section 4 of NOAA's Policies and Procedures for Compliance with the National Environmental Policy Act (NEPA) and Related Authorities (Companion Manual for NAO 216-6A). Per section 4B of the Manual, a categorical exclusion (CE) evaluation document has been prepared that evaluates the applicability of the CE.

NMFS prepared a final regulatory flexibility analysis (FRFA) under section 604 of the Regulatory Flexibility Act (RFA), which incorporates the initial regulatory flexibility analysis (IRFA) prepared during the proposed rule stage. A copy of the FRFA and CE memo are available from NMFS (see ADDRESSES ), and, as per the requirements of 5 U.S.C. 604(a), the text of the FRFA follows.

For any rule subject to notice and comment rulemaking, the RFA requires Federal agencies to prepare, and make available for public comment, both an initial and final regulatory flexibility analysis, unless the agency can certify that the proposed and/or final rule would not have a significant economic impact on a substantial number of small entities. These analyses describe impact on small businesses, non-profit enterprises, local governments, and other small entities as defined by the RFA (5 U.S.C. 603). This analysis is to inform the agency and the public of the expected economic effects of the alternatives, and aid the agency in considering any significant regulatory alternatives that would accomplish the applicable objectives and minimized the economic impact on affected small entities. The RFA does not require that the alternative with the least cost or with the least adverse effect on small entities be chosen as the preferred alternative.

The need for and objective of this final rule is described above in the Background section of this preamble and not repeated here.

No public comments were received in response to the IRFA. We received a comment on the economic impact and a response is provided earlier in the preamble under comment 1.

No agency response was required, as no comments were received.

The RFA (5 U.S.C. 601 et seq. ) requires government agencies to assess the effects that regulatory alternatives would have on small entities, defined as any business/organization independently owned and operated, not dominant in its field of operation (including its affiliates).

For RFA purposes only, NMFS established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.

For the purposes of our Regulatory Flexibility Act (RFA) analysis, the final action is considered to regulate ownership entities that are potentially affected by the action. The U.S. Small Business Association (SBA) established criteria for business in the fishery sector to qualify as small entities. Limited entry groundfish vessels directly regulated by this action are required to renew a permit annually, and the application asks for entity size including affiliation. Of those who responded as being large entities, 15 permits owned by 9 large entities were attached to vessels that participated in bottom trawl or fixed gear groundfish fisheries in 2018 and are the most likely to be impacted by the rule.

Of the 856 vessels impacted by this rule, none had annual ex-vessel revenue on the West Coast (participation in other fisheries is not known) greater than the NMFS $11 million size standard. The top three revenue vessels, all in the IFQ fishery, had an average revenue of $1.9 million in 2018 in all West Coast fisheries. In contrast, the bottom 10 earning vessels had revenues in all West Coast fisheries of less than $1,000. While the analysis relies on 2018 data, there have not been significant changes in the number of entities or relative small business size status of the fleet from 2018 to 2019.

This action changes two information collection requirements.

This action adjusts the position transmissions rate for certain vessels using NMFS type-approved vessel monitoring system units, including limited entry groundfish vessels, vessels using non-groundfish trawl gear in the EEZ (ridgeback prawn, California halibut, and sea cucumber trawl), and any vessels that use open access gear targeting groundfish take and retain, possess groundfish or land groundfish taken in the EEZ in the EEZ (salmon troll, prawn trap, Dungeness crab, halibut longline, California halibut line gear, and sheephead trap). Vessel owners are required to increase their position transmission rate from once- per- hour to four times- per hour. Vessels that are operating with electronic monitoring or in port for an extended period of time will be exempt from this increase and allowed to continue with a rate of four-times-per-hour.

The final action adds a declaration for gear testing so vessels will be exempt from observer coverage while testing gear and restricted from harvesting fish, and allow Groundfish midwater trawl vessels participating in the Pacific whiting fishery (shorebased IFQ Sector and the MS Sector), to make a new declaration from sea and allowed to make a tow for a delivery to a shoreside processor without returning to port first. The numbers of declaration reports the vessel operator is required to submit to NMFS would not change under this request. Therefore, no small entity would be subject to additional reporting requirements.

There are no relevant Federal rules that may duplicate, overlap, or conflict with this action.

NMFS considered sub alternatives to the proposed rule that may have minimized significant economic impact, but not meet stated objectives of applicable statutes. The Council briefly considered increasing the position transmission signal to every 30 minutes or every 20 minutes, but rejected those alternatives from further analysis because those position transmission signals may not be frequent enough to provide information to enforce small restricted areas, or provide enough information to calculate a vessel's course for enforcement of continuous transit requirements.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a final regulatory flexibility analysis, the agency shall publish one or more guides to assist small entities in complying with the rules, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the West Coast Regional Office (see ADDRESSES ), and the guide will be included in a notice sent to all members of the groundfish email group. To sign-up for the groundfish email group, click on the “subscribe the the Groundfish Email Group” link on the following website: https://www.fisheries.noaa.gov/species/west-coast-groundfish#commercial. The guide and this final rule will also be available on the West Coast Region's website (see ADDRESSES ) and upon request.

This action contains changes to information collection requirements under OMB Control Number 0648-0573, West Coast Region Vessel Monitoring Requirement in the Pacific Coast Groundfish Fishery, described in this final rule, which have been submitted to the Office of Management and Budget (OMB).

The first change is to adjust the VMS signal transmissions for certain vessels using NMFS type-approved vessel monitoring system units, including limited entry groundfish vessels, vessels using non-groundfish trawl gear in the EEZ (ridgeback prawn, California halibut, and sea cucumber trawl), and any vessels that use open access gear to take and retain, or possess groundfish in the EEZ or land groundfish taken in the EEZ (salmon troll, prawn trap, Dungeness crab, halibut longline, California halibut line gear, and sheephead trap). A NMFS type-approved VMS mobile transceiver unit continuously provides the vessel's position throughout the fishing season. Vessel owners would be required to increase their transmission rates from once-per-hour to four-times-per-hour. Vessels that are operating with electronic monitoring or in port for an extended period of time, will be exempt from this increase and allowed to continue with a rate of one-time-per-hour. The proposed change will not affect the number of entities required to comply with this requirement.

The next change is to adjust notification requirements for groundfish trawl vessels testing gear. Vessels participating in the shorebased IFQ, MS, or C/P Sectors will be able to declare “gear/equipment testing” and receive an exemption from observer coverage. This action would not affect the number of entities required to comply with the declaration requirement. Therefore, the proposed change would not be expected to increase the time or cost burden associated with this requirement. Lastly, this action allows Pacific whiting catcher vessels to change their declarations at-sea. After vessels have met their delivery obligations, they can immediately change their declaration from “Pacific whiting motherships sector” to “Pacific whiting shorebased IFQ” to make a tow and offload on shore. This action would not be expected to change the time or cost burden or number of entities associated with this requirement.

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