ALJs serve as independent impartial triers of fact in formal proceedings requiring a decision on the record after the opportunity for a hearing. In general, ALJs prepare for and preside at formal proceedings required by statute to be held under or in accordance with provisions of the Administrative Procedure Act (APA), codified, in relevant part, in sections 553 through 559 of title 5, United States Code (U.S.C.). ALJs rule on preliminary motions, conduct pre-hearing conferences, issue subpoenas, conduct hearings (which may include written and/or oral testimony and cross-examination), review briefs, and prepare and issue decisions, along with written findings of fact and conclusions of law.

The Federal Government employs ALJs in a number of agencies throughout the United States. Previously, appointments to the position of ALJ have been made through competitive examination and competitive service selection procedures. 1 As recognized by the Supreme Court in Lucia v. Securities and Exchange Commission, 138 S. Ct. 2044 (2018) at least some ALJs are “inferior Officers” of the United States and thus subject to the Constitution's Appointments Clause, which governs who may appoint such officials. In accordance with the Constitution, in such instances, Congress has vested the appointment of ALJs in the heads of departments or agencies. Although such department or agency head may rely on agency human resource officials or other staff to assess applications, conduct interviews, and the like, the final appointment must be made or approved by the department or agency head; this authority cannot be delegated. On July 10, 2018, the President signed Executive Order (E.O.) 13843 titled, “Excepting Administrative Law Judges from the Competitive Service” (83 FR 32755). E.O. 13843 states “that conditions of good administration make necessary an exception to the competitive hiring rules and examinations for the position of ALJ. These conditions include the need to provide agency heads with additional flexibility to assess prospective appointees without the limitations imposed by competitive examination and competitive service selection procedures.” Section 2 of the Executive Order specifies that all appointments of administrative law judges made on or after July 10, 2018 must be made under Schedule E of the excepted service. 2 Section 3(a) of the Executive Order amended Civil Service Rule VI to shift new hiring of ALJs from the competitive to the excepted service.

Section 3(b) of the Executive Order directed OPM to issue transitional guidance, and OPM issued explanatory guidance on the E.O. on July 10, 2018. See OPM Memorandum to Heads of Departments and Agencies, Executive Order—Excepting Administrative Law Judges from the Competitive Service, available at https://chcoc.gov/transmittals. OPM later issued more specific guidance to agencies on the ALJ loan program (August 1, 2018), on promotions and reassignments of ALJs (August 27, 2018), and on the termination of the ALJ register and discontinuance of the ALJ examination (Sept. 20, 2018). OPM published a Fact Sheet: Administrative Law Judge (ALJ) Positions on August 19, 2019, available at https://www.opm.gov/services-for-agencies/administrative-law-judges/fact-sheet-administrative-law-judge-alj-positions-posted.pdf.

Section 3(b) of the Executive Order also directed OPM to “adopt such regulations as the Director determines may be necessary to implement this order, including, as appropriate, amendments to or rescissions of regulations that are inconsistent with, or that would impede the implementation of, this order, giving particular attention to 5 CFR part 212, subpart D; 5 CFR part 213, subparts A and C; 5 CFR 302.101; and 5 CFR part 930, subpart B.” OPM is proposing rules for the newly created Schedule E hiring of ALJs. The proposed regulations make several significant changes to the recruitment, appointment, and movement of ALJs based on E.O. 13843 and formalize OPM's prior explanatory guidance. As described in detail below, OPM is also proposing other changes to comply with other recent changes in the law.

OPM is proposing these regulations pursuant to this instruction, the Civil Service Rules, and OPM's own statutory authority to regulate the ALJ program, which includes, inter alia, sections 1103(a)(5)(A), 1305, 3323(b)(2), and 5372(c) of title 5, U.S.C.

In light of the Executive Order, OPM terminated the ALJ competitive service register, its centralized list of eligible ALJ applicants, as the Executive Order ended the need for competitive examination, rating and ranking, and selection from competitive certificates of eligibles issued by OPM. Therefore, OPM proposes to remove references to the ALJ competitive examination throughout subpart B of 5 CFR part 930.

In particular, the text of the current regulations recites that ALJs are appointed in the competitive service and that OPM is responsible for examining ALJ candidates and producing registers of qualified ALJ applicants from which agencies make selections in accordance with the provisions of subpart B of 5 CFR part 930. The proposed rule aligns the text of OPM's regulations to the changes the President effected through E.O. 13843. The proposed rule changes reflect that OPM will no longer conduct recruitment and competitive examinations of ALJ candidates for employment in Federal agencies, and that agencies will no longer select ALJ candidates from competitive certificates of eligibles issued by OPM.

As noted above, the proposed rule removes references to appointments in the competitive service. Instead, the proposed rule, conforming to E.O. 13843, recites that any ALJ selected (with the application of veterans' preference as far as administratively feasible) on or after July 10, 2018, must be appointed by the head of the hiring agency  3 and placed in an ALJ position in the excepted service. Consistent with Civil Service Rule VI, as amended by section 3(a) of the E.O., the proposed rule creates a new Schedule E in the excepted service specific to ALJs, except that an individual encumbering an ALJ position in the competitive service on July 10, 2018, shall remain in the competitive service while he or she remains in the position (and will continue to be subject to the same conditions pertaining to appointment in the competitive service).

OPM's current regulations do not address requirements for job opportunity announcements for ALJs, because the requirements for job opportunity announcements for competitive service positions generally are set forth in 5 U.S.C. 3330 and in 5 CFR part 330, subpart A. OPM's August 17, 2019 transitional guidance explains that although the excepted service has no requirement to post a USAJOBS announcement or to follow the job posting requirements for competitive service positions, the merit system principles (5 U.S.C. 2301) apply to excepted service recruiting. Accordingly, agencies should tell potential applicants about ALJ vacancies, recruit in a manner to attract a sufficient pool of qualified applicants, and recruit in a manner that allows all qualified and eligible employees to apply for higher-level positions.

OPM proposes to codify this guidance in the regulations. We note that this is consistent with E.O. 11478 of August 8, 1969, as amended, Equal Opportunity in the Federal Government, 42 U.S.C. 2000e note and similar to Administrative Conference Recommendation 2019-2, Agency Recruitment and Selection of Administrative Law Judges (para. 1), 84 FR 38927, 38930-31 (Aug. 8, 2019).

OPM is proposing through this rule that an ALJ serving in the competitive service who accepts a new ALJ appointment at another agency on or after July 10, 2018, moves from the competitive service to an ALJ position under Schedule E of the excepted service, instead of transferring to another competitive service position. Likewise, a former ALJ who held a position in the competitive service prior to separation cannot be reinstated to an ALJ position in the competitive service, and must be given a new excepted appointment. The proposed rule recognizes that transfer and reinstatement are no longer available for ALJ appointments because these actions are exclusively competitive service appointment methods and accordingly, are no longer available for ALJ appointments.

Section 1 of the E.O. states that excepting the position of ALJ from the competitive service “will give agencies greater discretion to assess critical qualities in ALJ candidates, such as work ethic, judgment, and ability to meet the particular needs of the agency,” and to conduct assessments “without proceeding through complicated and elaborate examination processes and rating procedures that do not necessarily reflect the agency's particular needs.”

Under the proposed rule, the heads of agencies, not OPM, are authorized to assess prospective appointees for ALJ positions in their respective agencies without consideration of the competitive hiring rules and examination process. This provides agency heads with greater flexibility to assess critical qualities in ALJ applicants and determine whether an ALJ applicant meets the particular needs of the hiring agency. Appointments of ALJs are made pursuant to Schedule E of the excepted service, but are not subject to the provisions of OPM's regulations in 5 CFR part 302 governing appointments in the excepted service, including examination and rating requirements. However, an agency head must apply the principle of veterans' preference “as far as administratively feasible” when filling ALJ positions.

Civil Service Rule VI, as amended by section 3(a) of the E.O., adopts, as a “minimum standard of appointment to the position of administrative law judge,” the bar licensure requirement that OPM previously prescribed through regulation in 5 CFR 930.204(b), and permits “additional agency requirements” for qualifications “where appropriate.” This means the minimum qualification and licensure requirement for an ALJ position is the possession of a professional license to practice law and being authorized to practice law under the laws of a State, the District of Columbia, the Commonwealth of Puerto Rico, or any territorial court established under the United States Constitution at the time of selection and any new appointment (other than of an incumbent ALJ to another ALJ position). Judicial status is acceptable in lieu of “active” status in States that prohibit sitting judges from maintaining “active” status to practice law, and being in “good standing” also is acceptable in lieu of “active” status in States where the licensing authority considers “good standing” as having a current license to practice law.

The proposed rule therefore continues only the existing bar licensure requirement as the minimum standard for appointment and explains that agency heads may prescribe additional requirements as appropriate.

E.O. 13843 provides that “[a]ppointments of ALJs shall be made under Schedule E of the excepted service,” but that “[i]ncumbents of this position who are, on July 10, 2018, in the competitive service shall remain in the competitive service as long as they remain in their current positions.” Thus, as long as an ALJ in the competitive service on July 10, 2018, remains in the position of ALJ, and does not require a new appointment, he or she remains in the competitive service. Under generally-applicable regulations, the internal reassignment or promotion of an officer or employee by his or her agency involves only a position change, and does not involve a new appointment under civil service law. 5 CFR 210.102; see als o 5 CFR 335.101. This rule also applies to ALJs as well as employees in other pay systems. See 70 FR 75745, 75746 (Dec. 21, 2005). Therefore, under the proposed rule, and consistent with OPM's transitional guidance, an ALJ reassigned or promoted within his or her agency remains in the competitive service, as long as he or she remains an ALJ. In this circumstance, an agency must process and record the personnel action as a reassignment or promotion in the competitive service, not as an appointment in the excepted service.

However, because some ALJs were deemed to have constitutional status as inferior officers of the United States under the Supreme Court's decision in Lucia v. Securities and Exchange Commission, OPM's transitional guidance instructed agencies that where a promotion or reassignment would involve a significant position change, such as a promotion to a position classified at a higher level (AL-1 or AL-2), a reassignment to a different bureau within the same department, or a reassignment to perform a significantly different kind of work ( e.g., a change from presiding over ex parte cases to presiding over trials, or from adjudicating benefits cases to adjudicating regulatory enforcement cases), the agency's request for OPM to approve the action must document that the head of the requesting agency approved the promotion or reassignment. OPM's transitional guidance further instructed that this documentation is not necessary for routine geographic reassignments, or for the advancement of an ALJ's rate within pay level AL-3. This documentation requirement also does not require a change in the ALJ's status from the competitive service to the excepted service. The proposed rule formalizes these instructions.

ALJ pay administration and position classification are governed by 5 U.S.C. 5372, which assigns responsibility to OPM and makes no distinction between competitive service and excepted service ALJs. The proposed rule, therefore, makes no distinction between competitive and excepted service ALJs with respect to OPM's pay administration and position classification responsibility.

Adverse actions against ALJs are governed by 5 U.S.C. 7521, subject to regulations issued by the Merit Systems Protection Board (MSPB) under 5 U.S.C. 1305. These provisions likewise make no distinction between competitive service and excepted service ALJs. Therefore, under the proposed rule, the MSPB procedures prescribed in 5 U.S.C. 7521 and 5 CFR part 1201 will apply to an agency action to remove, suspend, reduce in level, reduce pay, or furlough for 30 days or less an ALJ in the competitive or excepted service ( i.e., adverse action).

The current regulations provide that appointment as an ALJ is subject to the competitive service suitability requirements in 5 CFR part 731. OPM is amending these requirements due to changes in the law since the provisions were last amended in 2007. First, E.O. 13764 of January 23, 2017 amended Civil Service Rules II and V, authorizing OPM to prescribe minimum standards of fitness of character and conduct for excepted service appointments, and to require such appointments to be subject to a risk-based position designation and a corresponding background investigation under OPM-prescribed standards. E.O. 13764 also amended Civil Service Rule VI to make excepted service appointments “subject to the suitability and fitness requirements of the applicable Civil Service Rules and Regulations,” namely, Civil Service Rules II and V. (E.O. 13843 subsequently acknowledged that this requirement applies to “the position of administrative law judge.”) Finally, E.O. 13764 amended an earlier executive order, E.O. 13467 of June 30, 2008, to give the Director of National Intelligence, as the Security Executive Agent, the authority to prescribe investigative, adjudicative, and continuous vetting requirements for eligibility for access to classified information and for employment in a sensitive position; and to give the Director of OPM, as the Suitability and Credentialing Executive Agent, the authority to do the same for suitability, fitness, and eligibility for an identity credential. The Executive Order assigns this responsibility to ODNI and OPM for both competitive and excepted service positions, including, inter alia, ALJ positions. The proposed rule incorporates these changes.

OPM's current regulations state that a removal or other action against an ALJ on grounds of suitability under part 731 is not subject to the statutory removal procedure in 5 U.S.C. 7521. OPM is eliminating this provision. In Archuleta v. Hopper, 786 F.3d 1340 (Fed. Cir. 2015), the Court of Appeals for the Federal Circuit ruled that, where an employee is covered by the statutory removal procedure in 5 U.S.C. chapter 75, subchapter II, that procedure governs his or her removal even if it is on grounds of suitability under the Civil Service Rules and OPM's regulations in 5 CFR part 731, because (at the time of the court's decision) the definition of an “adverse action” in 5 U.S.C. 7512 did not explicitly exclude a suitability action. Subsequently, in section 1086 of Public Law 114-92, the National Defense Authorization Act for FY 2016, Congress amended 5 U.S.C. 7512 to explicitly exclude an OPM suitability action from the definition of an adverse action in 5 U.S.C. 7512. Accordingly, suitability-based removals of employees who are covered by subchapter II are not subject to the statutory adverse action procedures. However, Congress did not make a corresponding amendment to 5 U.S.C. 7521, defining an “adverse action” for purposes of 5 U.S.C. chapter 75, subchapter III, which covers ALJs. Thus, while an ALJ may be subject to an unfavorable suitability determination, the removal action should follow the statutory procedure. The proposed rule retains references to other exceptions to 5 U.S.C. 7521 that have been prescribed by statute.

OPM's current regulation describes the use of administrative leave when an adverse action is pending. The Administrative Leave Act of 2016, section 1138 of Public Law 114-328, established new types of paid non-duty status in 5 U.S.C. 6389a and 6389b, namely, notice leave and investigative leave. OPM proposes to update the regulation to reflect this change. OPM has proposed separate rulemaking to implement the Administrative Leave Act, at 82 FR 32263 (July 13, 2017).

The regulations in 5 CFR 930.206 currently provide that an agency may not rate the job performance of an ALJ and may not grant any monetary or honorary award or incentive under 5 U.S.C. 4502, 4503, 4504, or any other authority, to an ALJ. Sections 1305 and 4305 of title 5, U.S.C. give OPM the responsibility to regulate the statutory prohibition on appraising the performance of ALJs—found in 5 U.S.C. 4301(2)(D)—without regard to whether ALJs are in the competitive service or the excepted service. Accordingly, under the proposed rule, the prohibition against rating the job performance of an ALJ remains in effect for ALJs in the competitive and excepted service.

OPM proposes revisions to this section, however, to clarify the incentives and similar payments for which an ALJ, whether in the competitive or excepted service, is ineligible. Specifically, the proposed rule clarifies that an ALJ is not eligible for recruitment, relocation, or retention incentives under 5 U.S.C. 5753 and 5754 because the regulations in 5 CFR part 575, subparts A, B, and C, require an eligible employee to have or maintain a rating of record of at least “Fully Successful” or equivalent to receive an incentive. Similarly, the proposed rule further establishes that ALJs are not eligible for the student loan repayment program because, under 5 U.S.C. 5379(d)(2) and 5 CFR 537.108(a)(2), an employee must maintain an acceptable level of performance to receive student loan repayment benefits. An ALJ cannot meet the requirements for these incentives and payments because an agency may not rate the job performance of an ALJ in either the competitive or excepted service.

In accordance with 5 U.S.C. 3344, OPM administers an Administrative Law Judge Loan Program that coordinates the loan/detail of an administrative law judge from one agency to another. Section 3344 makes no distinction between competitive service and excepted service ALJs. The proposed rule, like OPM's transitional guidance, makes clear OPM continues its responsibilities under this Program whether ALJs are in the competitive or excepted service. However, because some ALJs were deemed to have constitutional status as inferior officers of the United States under the Supreme Court's decision in Lucia, OPM's transitional guidance instructed agencies that, upon accepting the services of a loaned ALJ, the receiving agency must provide to OPM, as soon as practicable, documentation that the head of that agency made, approved, or ratified the loan of the ALJ. Likewise, the agency lending the ALJ must provide OPM with documentation that the ALJ's appointment was originally made or approved, or later ratified, by the head of that agency. This documentation requirement does not require a change in the ALJ's status from the competitive service to the excepted service. The proposed rule formalizes these instructions.

The Senior ALJ Program allows retired ALJs to be reemployed on a temporary or irregular basis to complete hearings of one or more specified case(s). Upon appointment, and while reemployed, the retired ALJ is referred to as a Senior ALJ. The proposed rule clarifies that an agency that temporarily reemploys a retired ALJ must use the newly created Schedule E excepted service appointment. It also clarifies that Senior ALJs appointed prior to July 10, 2018 remain in the competitive service for the duration of their appointment, including any extension periods authorized by OPM. OPM approval procedures have not otherwise changed with respect to reemploying retired ALJs, since the statute governing the Senior ALJ Program, 5 U.S.C. 3323(b)(2), assigns program responsibility to OPM and makes no distinction between competitive service and excepted service senior ALJs after they have been appointed.

The proposed rule amends the ALJ reduction in force (RIF) regulations currently described at 5 CFR 930.210. When implementing a reduction in force, the provisions in this section are a supplement to the RIF provisions in 5 CFR part 351 that have separate provisions for the treatment of competitive service and excepted service positions. The existing rule, which references part 351, makes clear that competitive service ALJs are subject to the provisions of 5 CFR part 351 that apply to competitive service employees and that excepted service ALJs are subject to the provisions of 5 CFR part 351 that apply to excepted service employees.

The proposed amendment establishes procedures for placement assistance for ALJs reached in an agency's reduction in force for those in both the competitive and excepted service. Under the proposed changes, an agency is required to establish an administrative law judge priority reemployment list and provide consideration to ALJs on its administrative law judge priority reemployment list before it may consider candidates on its regular employment lists, with certain exceptions.

We propose to amend the authority citation to add a reference to E.O. 13843. OPM is retaining the existing reference to E.O. 10577, but adding a corresponding reference to 5 CFR part 6. From 1954 until the early 1980s, the organic Civil Service Rules were set forth in E.O. 10577 and amended from time to time by the President. However, in recent decades, the practice has been for the President to amend the Civil Service Rules and, at the same time, directly amend a corresponding part in chapter I, subchapter A of title 5, Code of Federal Regulations without also further amending E.O. 10577. Since the Civil Service Rules are the product of both of these methods of presidential rulemaking, both E.O. 10577 and the corresponding part in 5 CFR chapter I, subchapter A should be cited as authority for OPM's regulation.

Proposed § 212.401(b) adds the newly established Schedule E in the excepted service to the list of Schedules already in the rule. This provides that an employee in the competitive service at the time his or her position is first listed in schedule A, B, C, or E remains in the competitive service while occupying the position.

The authority citation is revised to include E.O. 13843 and 5 CFR part 6, and to correct the citation to E.O. 13562.

Subpart A of 5 CFR part 213 General provisions is revised to include the Schedule E authority in § 213.102, and to clarify that appointments to Schedule E must be made on a permanent basis in accordance with part 930.

Subpart C of 5 CFR part 213 Excepted schedules is revised by establishing Schedule E as a new schedule in part 213. Proposed § 213.3501 is labeled “Positions of administrative law judge appointed under 5 U.S.C. 3105.” This proposed section explains the reasoning and basis for appointments under Schedule E and requires that all appointments of ALJs on or after July 10, 2018 must be made under this excepted service authority in accordance with the provisions in subpart B of 5 CFR part 930.

The authority citation is revised to include references to 5 U.S.C. 3317, 3318, and 3320 (in accordance with recent case law arising in a different context, see 81 FR 86290, 86291 (Nov. 30, 2016)), and to E.O. 13843 and 5 CFR part 6.

We propose to add ALJs to the list of positions in § 302.101(c) that are exempt from the appointment procedures of 5 CFR part 302, and for which agencies shall apply the principle of veterans' preference as far as administratively feasible.

The proposed rule makes extensive changes to 5 CFR part 930.

The proposed rule revises the authority citation for subpart B of part 930 by adding references to E.O. 13843 and 5 CFR parts 2, 5, and 6, as well as to 5 U.S.C. 1103(a)(5)(A) (OPM's general substantive rulemaking authority) and 5 U.S.C. 4305 (which, together with 5 U.S.C. 1305, authorizes OPM to regulate the exception from performance appraisals for ALJs).

The proposed rule deletes, from the authority citation, references to 5 U.S.C. 1104(a) (pertaining to the ALJ examination) and 1302(a) (pertaining to competitive examinations).

Proposed § 930.201 is revised throughout to add references to the excepted service. Paragraph (b) is revised to make clear that, as of July 10, 2018, appointments of ALJs must be made under Schedule E of the excepted service in § 213.3501. Paragraph (c) makes clear that ALJs appointed prior to July 10, 2018, remain in the competitive service as long as they remain in their positions, including when they are subject to actions within their agencies that do not result in a new appointment (including details, assignments, reassignments, pay adjustments, and promotions). The proposed rule also states that no new appointments of ALJs may be made to the competitive service after July 9, 2018. Paragraph (e) establishes OPM's authority with respect to the ALJ program. This paragraph is revised to delete references to OPM's authority to recruit and examine ALJ applicants, to approve transfers and reinstatements to competitive service positions, and to maintain a central priority reemployment list, and to clarify that OPM's authority to classify positions under 5 U.S.C. 5372 includes the authority to approve classifications.

We propose to change the text in paragraphs (e) and (f), stating that OPM has “the authority to . . . [e]nsure the independence of the administrative law judge” and that the employing agency has “[t]he responsibility to ensure the independence of the administrative law judge.” The revised text states that OPM has the authority, and the agency has the responsibility, to “[e]nsure the qualified independence of the administrative law judge, and to faithfully administer the structural protections designed to ensure the impartiality of the administrative law judge.” This is a clarifying change because the current reference to “ensuring the independence of the administrative law judge” encompasses two concepts: qualified decisional independence, and the statutory, structural protections designed to ensure judges' impartiality by limiting agency control in matters of position classification, pay, performance management, case assignment, and tenure. See, e.g., Ramspeck v. Fed. Trial Examiners Conf., 345 U.S. 128 (1953).

We propose removing and reserving § 930.203 Cost of competitive examination, since OPM no longer conducts the examination. Under the current regulation each agency is charged a pro rata share of the examination cost, based on the actual number of administrative law judges the agency employs; and under OPM's Revolving Fund statute each agency is also charged a corresponding share for program administration costs ( e.g., for administering the ALJ Loan and Senior ALJ programs, review of position descriptions and job opportunity announcements, approval of noncompetitive actions, and FOIA/Privacy Act activity). While this funding method for program administration must continue for the time being as a matter of appropriations law, the end of the examination has prompted OPM to rethink its funding method for the program. OPM is considering requesting the use of appropriated funds, instead of agency payments under the Revolving Fund, to fund its program costs. OPM seeks comment on the appropriate funding method and plans to amend this section after careful consideration of the feasibility of a new funding method and consideration of public comments.

In § 930.204 Appointments and conditions of employment, paragraph (a) is revised to make clear that ALJs are appointed on a permanent full-time basis, with the exception of appointments to the Senior ALJ Program, and to address requirements for excepted service appointments. Paragraph (a)(1) includes information on ALJ appointments under Schedule E, and paragraph (a)(2) clarifies that ALJs appointed prior to July 10, 2018, remain in the competitive service under the conditions described in § 930.201(c). Information about hiring from competitive certificates is removed.

Section 930.204(b), Licensure, continues the existing licensure requirement for competitive service ALJ appointments, which E.O. 13843 has now extended to excepted service as the minimum standard for ALJ appointments. New § 930.204(c) sets forth the qualification requirements for competitive service and excepted service ALJs. Paragraph (c)(1) addresses the qualifications for competitive service ALJs. OPM is retaining this information, even though E.O. 13843 does not permit new competitive service appointments, because it may be relevant to reconstructing past selections. Paragraph (c)(2) addresses the agency-specific requirements permitted by E.O. 13843 for excepted appointments. Existing provisions are renumbered accordingly.

Current § 930.204(g), Reinstatement, is proposed to be redesignated and recaptioned as § 930.204(j) Appointment of a former administrative law judge. The proposed revisions to paragraph (j) make clear that any reappointments of ALJs must be made under Schedule E of part 213 in the excepted service. Current § 930.204(h)— Transfer, is proposed to be redesignated as § 930.204(k) and recaptioned as Movement between agencies. The proposed revisions to paragraph (k) make clear that any movements of ALJs between agencies must be made to positions under Schedule E of part 213 in the excepted service in the gaining agency. The proposed revisions to this paragraph also require that the hiring agency inform an ALJ that such a move will place him or her in the excepted service, and requires the gaining agency to obtain a written statement from the ALJ that the ALJ understands he or she will be leaving the competitive service for an appointment in the excepted service.

Proposed § 930.204(g), Promotion to a higher level, is currently § 930.204(e). The text is amended to address promotions of excepted-service ALJs, including application of agency policies and the need to document agency head approval in a request to OPM; and to ensure that incumbent ALJs have an opportunity to be considered for promotion to higher-level positions when the agency considers external applicants.

Reclassification of ALJs is addressed in proposed § 930.204(h).

Reassignment of ALJs, currently addressed in § 930.204(f), is addressed in proposed § 930.204(j). The text is amended to explain the circumstances when an agency's request to OPM for approval of the reassignment must document that the head of the requesting agency approved it.

Paragraph (l) is added to § 930.204 to address recruitment and vacancy announcements.

The proposed rule amends § 930.205, Administrative law judge pay system, by including a statement that makes clear this section applies to ALJ positions in both the competitive and excepted services. The proposed rule modifies paragraph (b) by removing the reference to ALJ positions “filled through a competitive examination,” and replacing it with the words “at the entry level.” The proposed rule amends paragraph (f)(2)(i) by removing the words “who is within reach for appointment from an administrative law judge certificate of eligibles” and replacing them with “who meets the minimum qualification and licensure requirement in paragraph (b) and any agency-specific requirements established under paragraph (c)(2).” The proposed rule amends paragraph (f)(2)(ii) by removing the words “who is eligible for reinstatement” and replacing them with “who is eligible for appointment under Schedule E and meets the minimum qualification and licensure requirement in paragraph (b) and any agency-specific requirements established under paragraph (c)(2).”

The proposed rule modifies § 930.206, Performance rating and awards, by inserting the words “in the competitive or excepted service.” Paragraph (b) is proposed to be modified by adding 5 U.S.C. 4505, 4505a, 5379, 5753, and 5754 to the list of provisions under which ALJs may not be granted “any monetary or honorary award, incentive, or similar payment.”

The proposed rule modifies § 930.207, Details and assignments to other duties within the same agency, to clarify that details that will last more than 120 days, and details exceeding more than a total of 120 days in a 12-month period, require OPM approval regardless of whether the ALJs are in the competitive or excepted service.

The proposed rule modifies § 930.208, Administrative law judge loan program-detail to other agencies, to make clear that OPM administers the ALJ loan program for loans/details of an ALJ in both the competitive and excepted services. The proposed rule also adds two new paragraphs to § 930.208. New paragraph (e) requires the loaning agency to furnish OPM with documentation stating that the loaned ALJ's appointment was originally made, approved, or later ratified by the head of the agency. New paragraph (f) similarly requires the receiving agency of a loaned ALJ to provide documentation to OPM, as soon as practicable, stating that the head of the agency made, approved, or ratified the loan of the ALJ.

The proposed rule modifies several provisions in § 930.209, Senior Administrative Law Judge Program. The proposed rule modifies paragraph (b)(2) by removing the current language and replacing it with a reference to the licensure, qualification, and vetting requirements prescribed under § 930.204(b) through (g). The proposed rule amends paragraph (c) by adding the phrase “under Schedule E of § 213.3501 of this chapter” to make clear that reemployed ALJ annuitants are appointed to positions in the excepted service. The proposed rule amends paragraph (d) to specify that an agency's request to OPM for a senior ALJ must document that the appointment will be made or approved by the head of the requesting agency.

OPM is proposing to amend § 930.210, Reduction in force. ALJs serving in Schedule E appointments in the excepted service will be subject to the provisions of 5 CFR part 351 specific to excepted service employees. ALJs in the competitive service remain subject to the provisions of 5 CFR part 351 specific to competitive service employees. Thus, the existing rule makes clear that for RIF purposes agencies use competitive service procedures for ALJs in the competitive service and excepted service procedures for ALJs in the excepted service to determine who will remain in their current positions. In either case, the rule makes clear that an agency may not use performance as a factor for purposes of retention standing in subpart E of 5 CFR part 351.

The proposed rule also requires agencies to establish procedures for placement assistance for ALJs reached in an agency's RIF. Agencies are required to establish a priority reemployment list and provide consideration to ALJs on its priority reemployment list before it may consider candidates on its regular employment lists, with certain exceptions. This will replace the current procedure under which OPM maintains a central, government-wide priority referral list. The agency-specific approach we are proposing is more in keeping with the excepted hiring model established by E.O. 13843. There are currently no names on the OPM list, so no individuals will be adversely affected by this change.

These new placement procedures will apply to ALJs in positions in both the competitive and the excepted service. However, the proposed rule also clarifies that displaced competitive service ALJs also will be eligible for consideration for non-ALJ competitive service positions pursuant to 5 CFR part 330, subpart B.

Lastly, OPM proposes to amend § 930.211, Actions against administrative law judges. The proposed rule amends paragraph (b)(4) to reference the use of notice leave, investigative leave, or administrative leave under the Administrative Leave Act of 2016, and amends paragraph (c) to remove a reference to actions taken under 5 CFR part 731.

I certify that this regulation will not have a significant impact on a substantial number of small entities because it applies only to Federal agencies and employees.

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” under Executive Order 12866 and has been reviewed by OMB.

This proposed rule is not expected to be subject to the requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because it is expected to impose no more than de minimis costs.

This rule will not 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 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 regulation will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant preparation of a Federalism Assessment.

This regulation meets the applicable standard set forth in section 3(a) and (b)(2) of Executive Order 12988.

This action pertains to agency management, personnel, and organization and does not substantially affect the rights or obligations of nonagency 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 (SBREFA)). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act.

Accordingly, the Office of Personnel Management proposes to amend title 5, Code of Federal Regulations parts 212, 213, 302, and 930 as follows:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2020-0847; Product Identifier 2018-SW-087-AD” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this NPRM because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The FAA will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Scott Franke, Aviation Safety Engineer, International Validation Branch, General Aviation & Rotorcraft Unit, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone 817 222-5110; email scott.franke@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The European Aviation Safety Agency (now European Union Aviation Safety Agency) (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0206, dated September 20, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Helicopters Model AS350B, AS350BA, AS350BB, AS350B1, AS350B2, AS350B3, and AS350D helicopters; Model AS355E, AS355F, AS355F1, AS355F2, AS355N, and AS355NP helicopters; and Model EC130 B4 and EC130 T2 helicopters. Model AS355BB helicopters are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this proposed AD therefore does not include those helicopters in the applicability. EASA advises that during a scheduled inspection on an Airbus Helicopters Model AS350B3 helicopter, one of the two retaining rings of the inner race of the MRM upper bearing was found missing. These two retaining rings ensure that the inner race is correctly positioned with respect to the rollers, and, if one or both of these retaining rings are missing, it can lead to an unlimited shift of the inner race and compromise the function of the MRM upper bearing. This condition, if not detected and corrected, can lead to damage to the MRM and surrounding elements, possibly resulting in loss of control of the helicopter.

Airbus Helicopters developed an inspection to check that the upper and lower retaining rings of the inner race of the MRM upper bearing are present and correctly installed. EASA determined that the same condition may exist or develop on Airbus Helicopters Model AS350 helicopters, Model AS355 helicopters, and Model EC130 helicopters because they share a similar design and supply chain. Until the check of the upper and lower bearing retaining rings is accomplished, EASA specifies that repetitive inspections of the MRM upper bearing sealant bead (sealant bead) should be accomplished to ensure the MRM remains serviceable. EASA considers the actions specified in the MCAI an interim measure pending further investigation results, and notes that further AD action may follow.

You may examine the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0847.

Airbus Helicopters has issued the following service information.

• Airbus Helicopters Alert Service Bulletin AS350-62.00.42, Revision 0, dated September 17, 2018.

• Airbus Helicopters Alert Service Bulletin AS355-62.00.37, Revision 0, dated September 17, 2018.

• Airbus Helicopters Alert Service Bulletin EC130-62A017, Revision 0, dated September 17, 2018.

This service information describes procedures for a one-time inspection to verify presence and correct installation of the MRM upper bearing retaining rings, a repetitive inspection of the sealant bead on the MRM for damage, and corrective actions. Damage of the sealant bead includes flaws, cracks, folds, separation, or absence of the sealant bead. Corrective actions include repair and replacement. These documents are distinct since they apply to different helicopter models.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI and service information referenced above. The FAA is proposing this AD after evaluating all the relevant information and determining the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this Proposed AD and the MCAI.”

Although the MCAI specifies accomplishing the inspection of the installation of the MRM upper bearing inner race retaining rings within 660 hours time in service (TIS) or 24 months, whichever occurs first, the FAA has determined that interval would not address the identified unsafe condition soon enough to ensure an adequate level of safety for the affected fleet. In developing an appropriate compliance time for this AD, the FAA considered the degree of urgency associated with the subject unsafe condition and the manufacturer's recommendation. In light of all of these factors, the FAA finds that a compliance time of within 660 hours TIS or 6 months, whichever occurs first, represents an appropriate interval of time for affected helicopters to continue to operate without compromising safety.

Although paragraph (5) of the MCAI specifies that operators may contact the manufacturer for instructions if there are signs of degradation on the MRM inner race, paragraph (i)(3) of this proposed AD would require operators to repair or replace the MRM if there is any degradation as indicated by damage to the retaining rings (including but not limited to cracks, scratches, and gouges), deterioration, or wear.

The FAA estimates that this proposed AD affects 1,212 helicopters of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

Authority for This Rulemaking

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

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2020-0823; Airspace Docket No. 20-AAL-49) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2020-0823; Airspace Docket No. 20-AAL-49.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the office of the Western Service Center, Operations Support Group, Federal Aviation Administration, 2200 South 216th St., Des Moines, WA 98198.

This document proposes to amend FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 12, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

A final rule was published in the Federal Register for Docket No. FAA-2006-25852 under Airspace Docket No. 06-AAL-29 (72 FR 31714; June 8, 2007; as corrected 72 FR 37430, July 10, 2007), this action amended the following offshore airspace areas: Norton Sound Low, Woody Island Low, Control 1234L, and Control 1487L Offshore Airspace Areas; Alaska, to include terminal airspace previously thought to be excluded in the Code of Federal Regulations. The exclusionary language was misinterpreted including all airspace West of Longitude 160°. The FAA found this interpretation to be in error as the exclusion only pertains to the area West of Longitude 160° for the Alaska Peninsula. The Alaska Peninsula does not include the Aleutian Islands nor preclude the establishment of airspace under CFR 71.71(c). This action proposes to correct this error and reverse the final rule. Offshore Airspace areas are reserved for those areas that extend from the Territorial Zone to the Flight Information Region boundary, in international airspace, where it is necessary to apply domestic airspace rules.

The FAA also published a final rule in the Federal Register for Docket No. FAA-2006-26164 under Airspace Docket No. 06-AAL-34 (72 FR 5611; February 7, 2007). This action revoked the Class E Airspace for Adak, Atka, Cold Bay, Nelson Lagoon, Saint George Island, Sand Point, Shemya, St. Paul Island, and Unalaska, AK as it was thought that because these locations were within Control 1234L they should be contained in the offshore airspace description. This was in error as offshore airspace cannot be established within 12 nautical miles of a coastline of the United States (U.S.). This action would also correct that error. This proposed technical amendment would separate Offshore Airspace and terminal class E airspace to provide pilots with an accurate legal description in the appropriate sections of the regulation.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 to modify the Norton Sound Low, Woody Island Low, Control 1234L, and Control 1487L Offshore Airspace areas by removing 33 terminal facilities, five NAVAIDS, and three sets of geographic coordinate assigned airspace included in the Offshore Airspace areas legal description contained in FAA Order 7400.11 Section 6007. The vertical and lateral boundaries would remain as published.

Additionally, the FAA proposes to define the legal descriptions of the terminal facilities in section 6002 and 6005 in FAA Order 7400.11. The proposed actions are described below.

Shemya, AK: Shemya is currently published in 1234L as Eareckson AS. This action proposes to remove Eareckson AS description from 1234L legal description and add it to section 6005 in FAA Order 7400.11 labeled under the correct identifier as Shemya, AK. This proposed action would retain the same legal description for the Class E5 airspace.

Adak, AK: Adak, AK is currently published in the 1234L legal description. This proposed action would remove the Adak class E legal description from 1234L and relocate it to section 6005 without changing the boundaries.

Atka, AK: Atka, AK is currently published in the 1234L legal description. This proposed action would remove the Atka class E legal description from 1234L and relocate it to section 6005 with no change to the boundaries.

Cold Bay, AK: Cold Bay, AK is currently published in the 1234L legal description. This proposed action would remove the Cold Bay class E2 and E5 legal descriptions from 1234L and relocate them to sections 6002 and 6005 with no change to the boundaries.

Perryville, AK: Perryville, AK is currently published in the Norton Sound Low legal description. This proposed action would remove the Perryville class E legal description from Norton Sound Low and relocate it to section 6005 with no change to the boundaries.

Nikoloski, AK: Nikoloski, AK is currently published in the 1234L legal description. This proposed action would remove the Nikoloski class E legal description from 1234L and relocate it to section 6005 with no change to the boundaries.

Manokotak, AK: Manokotak, AK is currently published in the Norton Sound Low, 1234L legal description. It is also published in section 6005, but has an outdated legal description. This proposed action would remove the Manokotak class E legal description from Norton Sound Low, and 1234L and relocate it to section 6005 with the correct boundaries and coordinates for the airport location. It would also correct the current legal description, removing the word New from Manokotak/New Airport, to reflect proper airport identification.

Clarks Point, AK: Clarks Point, AK is currently published in the Norton Sound Low and 1234L legal descriptions. This proposed action would remove the Clarks Point class E legal description from Norton Sound Low and 1234L and relocate it to section 6005 with no change to the boundaries.

Port Heiden, AK: Port Heiden, AK is currently published in the Norton Sound Low, Woody Island Low, and 1234L legal description. This proposed action would remove the Port Heiden class E legal description from Norton Sound Low, Woody Island Low, and 1234L and relocate it to section 6005 with no change to the boundaries.

St. George, AK: St. George, AK is currently published in the 1234L legal description. This proposed action would remove the St. George class E legal description from 1234L and relocate it to section 6005 with no change to the boundaries.

St. Paul Island, AK: St. Paul Island, AK is currently published in the 1234L legal description. This proposed action would remove the St. Paul Island class E legal description from 1234L and relocate it to section 6005 with no change to the boundaries.

Unalaska, AK: Unalaska, AK is currently published in the 1234L legal description. This proposed action would remove the Unalaska class E legal description from 1234L and relocate it to section 6005 with administrative changes correcting the word bearing to radial and adding the reference for the Dutch Harbor NDB, AK. The rest of the airspace legal description would remain unchanged.

Sand Point, AK: Sand Point, AK is currently published in the 1234L legal description. This proposed action would remove the Sand Point class E legal description from 1234L and relocate it to section 6005 with administrative changes correcting either to each, mail to mile, and adding the reference to Borland NDB/DME. The rest of the legal description would remain unchanged.

Chignik, AK: Chignik, AK is currently published in the Norton Sound Low, Woody Island Low, and 1234L legal description. This proposed action would remove the Atka class E legal description from Norton Sound, Woody Island Low, and 1234L and relocate it to section 6005 with no change to the boundaries.

King Cove, AK: King Cove, AK is currently published in the 1234L legal description. This proposed action would remove the King Cove class E legal description from 1234L and relocate it to section 6005 with an administrative changing either to each, and no change to the boundaries.

Nelson Lagoon, AK: Nelson Lagoon, AK is currently published in the 1234L legal description. This proposed action would remove the Nelson Lagoon class E legal description from 1234L and relocate it to section 6005 with no change to the boundaries.

Chevak, AK: Chevak, AK is currently published in the Norton Sound Low legal description. This proposed action would remove the Chevak class E legal description from Norton Sound Low and relocate it to section 6005 with no change to the boundaries.

Elim, AK: Elim, AK is currently published in the Norton Sound Low legal description. This proposed action would remove the Elim class E legal description from Norton Sound Low and relocate it to section 6005 with no change to the boundaries.

Hooper Bay, AK: Hooper Bay, AK is currently published in the Norton Sound Low legal description. This proposed action would remove the Hooper Bay class E legal description from Norton Sound Low and relocate it to section 6005 with no change to the boundaries.

King Salmon, AK: King Salmon, AK is currently published in the Norton Sound Low, legal description. This proposed action would remove the King Salmon class E legal description from Norton Sound Low and correct the legal description in section 6005 with an administrative change replacing the word either to each, removing duplicate name in header line two, and no change to the boundaries.

Kivalina, AK: Kivalina, AK is currently published in the Norton Sound Low legal description. This proposed action would remove the Kivalina class E legal description from Norton Sound Low and correct the legal description contained in section 6005, replacing the word either to each, removing the duplicate name header in line two, and no change to the boundaries.

Kwethluk, AK: Kwethluk, AK is currently published in the Norton Sound Low legal description. This proposed action would remove the Kwethluk class E legal description from Norton Sound Low and correcting the legal description located in section 6005 with an administrative change, removing the double name header in line two, with no change to the boundaries.

Napakiak, AK: Napakiak, AK is currently published in the Norton Sound Low legal description. This proposed action would remove the Napakiak class E legal description from Norton Sound Low and correcting the legal description located in section 6005 with an administrative change, correcting duplicate name in heading line two with no change to the boundaries.

New Stuyahok, AK: New Stuyahok, AK is currently published in the Norton Sound Low legal description. This proposed action would remove the New Stuyahok class E legal description from Norton Sound Low and correct legal description contained in section 6005 with an administrative change, removing duplicate name in heading line two with no change to the boundaries.

Noatak, AK: Noatak, AK is currently published in the Norton Sound Low legal description. This proposed action would remove the Noatak class E legal description from Norton Sound Low and retain it in section 6005 with no change to the boundaries.

Red Dog, AK: Red Dog, AK is currently published in the Norton Sound Low legal description. This proposed action would remove the Red Dog class E legal description from Norton Sound Low and correct the legal description in section 6005 with an administrative change correcting the word either to each and no change to the boundaries.

Scammon Bay, AK: Scammon Bay, AK is currently published in the Norton Sound Low legal description. This proposed action would remove the Scammon Bay class E legal description from Norton Sound Low and correct the legal description located in section 6005 with an administrative change correcting the word either to each and no change to the boundaries.

Shaktoolik, AK: Shaktoolik, AK is currently published in the Norton Sound Low legal description. This proposed action would remove the Shaktoolik class E legal description from Norton Sound Low and retaining it in section 6005 with no change to the boundaries.

Selawik, AK: Selawik, AK is currently published in the Norton Sound Low legal description. This proposed action would remove the Selawik class E legal description from Norton Sound Low and correct the legal description located in section 6005 with an administrative change removing the duplicate name in heading line two with no change to the boundaries.

St. Michael, AK: St. Michael, AK is currently published in the Norton Sound Low legal description. This proposed action would remove the St. Michael class E legal description from Norton Sound Low and correcting the legal description located in section 6005 with an administrative change removing the duplicate name in heading line two with no change to the boundaries.

Toksook Bay, AK: Toksook Bay, AK is currently published in the Norton Sound Low legal description. This proposed action would remove the Toksook Bay class E legal description from Norton Sound Low and retain it in section 6005 with no change to the boundaries.

Nome, AK: Nome, AK and Nome VORTAC is currently published in the Norton Sound Low legal description. This proposed action would remove the Nome VORTAC and Nome class E legal description from Norton Sound Low and add the Nome VORTAC to the Nome, AK legal description located in section 6005 with no change to the boundaries.

Kodiak, AK: Kodiak, AK is currently published in the Control 1487L legal description. This proposed action would remove the Kodiak class E legal description from Control 1487L and correct the legal description located in section 6005 with an administrative change replacing the word either to each with no change to the boundaries.

Homer, AK: Homer, AK is currently published in the Control 1487L legal description. This proposed action would remove the Homer class E legal description from Control 1487L and retain the legal description in section 6005 with an administrative change correcting the word either to each and no change to the boundaries.

Anchorage, AK: Anchorage, AK is currently published in the Control 1487L legal description. This proposed action would remove the Anchorage class E legal description from Control 1487L and retain the legal description in section 6005 with no change to the boundaries.

Class E Airspace Areas Designated as Surface Areas, Class E Airspace Areas Extending Upward from 700 feet or more Above the Surface of the Earth, and Offshore Airspace Areas are published in paragraphs 6002, 6005, and 6007 of FAA Order 7400.11E dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR part 71.1. The Airspace listed in this document will be subsequently published in the Order.

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

As part of this proposal relates to navigable airspace outside the U.S. this notice is submitted in accordance with the International Civil Aviation Organization (ICAO) International Standards and Recommended Practices. The application of International Standards and Recommended Practices by the FAA, Office of Policy, Rules and Regulations Group, in areas outside the U.S. domestic airspace, is governed by the Convention on International Civil Aviation. Specifically, the FAA is governed by Article 12 and Annex 11, which pertain to the establishment of necessary air navigational facilities and services to promote the safe, orderly, and expeditious flow of civil air traffic. The purpose of Article 12 and Annex 11 is to ensure that civil aircraft operations on international air routes are performed under uniform conditions.

The International Standards and Recommended Practices in Annex 11 apply to airspace under the jurisdiction of a contracting state, derived from ICAO. Annex 11 provisions apply when air traffic services are provided and a contracting state accepts the responsibility of providing air traffic services over high seas or in airspace of undetermined sovereignty. A contracting state accepting this responsibility may apply the International Standards and Recommended Practices that are consistent with standards and practices utilized in its domestic jurisdiction.

In accordance with Article 3 of the convention, state-owned aircraft are exempt from the Standards and Recommended Practices of Annex 11. The United States is a contracting state to the Convention. Article 3(d) of the Convention provides that participating state aircraft will be operated in international airspace with due regard for the safety of civil aircraft.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

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

Section 615(d) of the FCRA  1 requires that any person who uses a consumer report in order to make an unsolicited firm offer of credit or insurance to the consumer (“prescreened offer” or “prescreened solicitation”) shall provide with each written solicitation a clear and conspicuous statement that: (A) Information contained in the consumer's consumer report was used in connection with the transaction; (B) the consumer received the offer of credit or insurance because the consumer satisfied the criteria for credit worthiness or insurability under which the consumer was selected for the offer; (C) if applicable, the credit or insurance may not be extended if, after the consumer responds to the offer, the consumer does not meet the criteria used to select the consumer for the offer or any applicable criteria bearing on credit worthiness or insurability or does not furnish any required collateral; (D) the consumer has a right to prohibit information contained in the consumer's file with any consumer reporting agency from being used in connection with any credit or insurance transaction that is not initiated by the consumer; and (E) the consumer may exercise the opt-out right by notifying a notification system established under section 604(e) of the FCRA.

The Fair and Accurate Credit Transactions Act of 2003 (“FACT Act”) was signed into law on December 4, 2003. Public Law 108-159, 117 Stat. 1952. Section 213(a) of the FACT Act amended FCRA section 615(d) to require that the statement mandated by section 615(d) “be presented in such format and in such type size and manner as to be simple and easy to understand, as established by the Commission, by rule, in consultation with the Federal banking agencies and the National Credit Union Administration.” On August 1, 2005, the FTC issued its Prescreen Opt-Out Notice Rule. 2

The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) was signed into law in 2010. 3 The Dodd-Frank Act substantially changed the federal legal framework for financial services providers. Among the changes, the Dodd-Frank Act transferred to the Consumer Financial Protection Bureau (“CFPB”) the Commission's rulemaking authority under portions of the FCRA. 4 Accordingly, in 2012, the Commission rescinded several of its FCRA rules, which had been replaced by rules issued by the CFPB. 5 The FTC retained rulemaking authority for other rules to the extent the rules apply to motor vehicle dealers described in section 1029(a) of the Dodd-Frank Act  6 that are predominantly engaged in the sale and servicing of motor vehicles, the leasing and servicing of motor vehicles, or both (“motor vehicle dealers”). 7 The retained rules include the Prescreen Opt-Out Notice Rule, which now applies only to motor vehicle dealers. 8 Consumer report users originally covered by the Prescreen Opt-Out Notice Rule that are not motor vehicle dealers are now covered by the CFPB's rule. 9

On May 22, 2019, the FTC rescinded several FCRA model notices and forms that were no longer necessary because of the Dodd-Frank Act's change to its rulemaking authority. 10 The prescreen opt-out model notice was included in this rescission.

The Commission promulgated the Prescreen Opt-Out Notice Rule at a time when it had rulemaking authority for a broader group of consumer report users. While the Dodd-Frank Act did not change the Commission's enforcement authority for the Prescreen Opt-Out Notice Rule, it did narrow the Commission's rulemaking authority with respect to the Rule. It now covers only motor vehicle dealers. 11 The amendments in the Dodd-Frank Act necessitate technical revisions to the Prescreen Opt-Out Notice Rule to ensure that the regulation is consistent with the text of the amended FCRA. Accordingly, the Commission proposes to modify the Prescreen Opt-Out Notice Rule to reflect the Rule's actual scope.

The proposed amendment to § 642.1 narrows the scope of the Prescreen Opt-Out Notice Rule to those entities set forth in the Dodd-Frank Act that are predominantly engaged in the sale and servicing of motor vehicles, excluding those dealers that directly extend credit to consumers and do not routinely assign the extensions of credit to an unaffiliated third party. 12 It does so by replacing the general term “person” with the term “motor vehicle dealers,” as defined in amended § 642.2.

The proposed amendment to § 642.2 adds a definition of “motor vehicle dealer” that defines motor vehicle dealers as entities excluded from CFPB jurisdiction as described in the Dodd-Frank Act. 13

The proposed amendment also reinstates the model prescreen opt-out notice as Appendix C to Part 698. The model form is unchanged from the previous model notice and is identical to the CFPB's model notice. 14 The proposed amendment also revises § 698.2 to include Appendix C in the list of model notices.

The amendments make no substantive changes to the Rule.

In addition to proposing the changes described above, the Commission seeks information about the costs and benefits of the Rule, and its regulatory and economic impact. It has been fifteen years since the Rule was enacted. Consistent with its practice of reviewing all of its rules and guides periodically, the Commission seeks to ascertain whether changes in technology, business models, or the law warrant modification or rescission of the Rule. As part of this review the Commission solicits comments on, among other things, the economic impact and benefits of the Prescreen Opt-Out Notice Rule; possible conflict between the Prescreen Opt-Out Notice Rule and state, local, or other federal laws or regulations; and the effect on the Prescreen Opt-Out Notice Rule of any technological, economic, or other industry changes.

The Commission requests written comment on any or all of the following questions. These questions are designed to assist the public and should not be construed as a limitation on the issues about which public comments may be submitted. The Commission requests that responses to its questions be as specific as possible, including a reference to the question being answered, and refer to empirical data or other evidence upon which the comment is based whenever available and appropriate.

1. Is there a continuing need for specific provisions of the Prescreen Opt-Out Notice Rule? Why or why not?

2. What benefits has the Prescreen Opt-Out Notice Rule provided to consumers? What evidence supports the asserted benefits?

3. What modifications, if any, should be made to the Prescreen Opt-Out Notice Rule to increase the benefits to consumers?

a. What evidence supports the proposed modifications?

b. How would these modifications affect the costs imposed by the Prescreen Opt-Out Notice Rule?

4. What significant costs, if any, has the Prescreen Opt-Out Notice Rule imposed on consumers? What evidence supports the asserted costs?

5. What modifications, if any, should be made to the Prescreen Opt-Out Notice Rule to reduce any costs imposed on consumers?

a. What evidence supports the proposed modifications?

b. How would these modifications affect the benefits provided by the Prescreen Opt-Out Notice Rule?

6. What benefits, if any, has the Prescreen Opt-Out Notice Rule provided to businesses, including small businesses? What evidence supports the asserted benefits?

7. What modifications, if any, should be made to the Prescreen Opt-Out Notice Rule to increase its benefits to businesses, including small businesses?

a. What evidence supports the proposed modifications?

b. How would these modifications affect the costs the Prescreen Opt-Out Notice Rule imposes on businesses, including small businesses?

c. How would these modifications affect the benefits to consumers?

8. What significant costs, if any, including costs of compliance, has the Prescreen Opt-Out Notice Rule imposed on businesses, including small businesses? What evidence supports the asserted costs?

9. What modifications, if any, should be made to the Prescreen Opt-Out Notice Rule to reduce the costs imposed on businesses, including small businesses?

a. What evidence supports the proposed modifications?

b. How would these modifications affect the benefits provided by the Prescreen Opt-Out Notice Rule?

10. What evidence is available concerning the degree of industry compliance with the Prescreen Opt-Out Notice Rule?

11. What modification, if any, should be made to the Prescreen Opt-Out Notice Rule to account for changes in relevant technology or economic conditions? What evidence supports the proposed modifications?

12. Does the Prescreen Opt-Out Notice Rule overlap or conflict with other federal, state, or local laws or regulations? If so, how?

a. What evidence supports the asserted conflicts?

b. With reference to the asserted conflicts, should the Prescreen Opt-Out Notice Rule be modified? If so, why, and how? If not, why not?

13. The Commission proposes to amend the Rule to reflect that the Commission's rulemaking authority has been revised by statute to apply exclusively to motor vehicle dealers. Are the proposed modifications appropriate? Should additional amendments be made? Would these amendments create conflicts with any other federal, state, or local regulations or laws?

14. The Commission proposes to provide a model prescreen opt-out notice that motor vehicle dealers may use. Should the model be modified?

a. What evidence supports the proposed modifications?

b. How would these modifications affect the benefits provided by the Prescreen Opt-Out Notice Rule?

You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before December 7, 2020. Write “Prescreen Opt-Out Notice Rule, 16 CFR part 642, Project No. P205408” on the comment. Your comment, including your name and your state, will be placed on the public record of this proceeding, including the https://www.regulations.gov website.

Because of the public health emergency in response to the COVID-19 outbreak and the agency's heightened security screening, postal mail addressed to the Commission will be subject to delay. We strongly encourage you to submit your comment online through the https://www.regulations.gov website. To ensure the Commission considers your online comment, please follow the instructions on the web-based form.

If you file your comment on paper, write “Prescreen Opt-Out Notice Rule, 16 CFR part 642, Project No. P205408” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex B), Washington, DC 20580; or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex B), Washington, DC 20024. If possible, please submit your paper comment to the Commission by courier or overnight service.

Because your comment will be placed on the publicly accessible website, https://www.regulations.gov, you are solely responsible for making sure your comment does not include any sensitive or confidential information. In particular, your comment should not include sensitive personal information, such as your or anyone else's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure your comment does not include sensitive health information, such as medical records or other individually identifiable health information. In addition, your comment should not include any “trade secret or any commercial or financial information which . . . is privileged or confidential,” as provided by section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2), including in particular, competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. Your comment will be kept confidential only if the FTC General Counsel grants your request in accordance with the law and the public interest. Once your comment has been posted on https://www.regulations.gov, we cannot redact or remove your comment from that website unless you submit a confidentiality request that meets the requirements for such treatment under FTC Rule 4.9(c), and the General Counsel grants that request.

Visit the Commission website at https://www.ftc.gov to read this document and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before December 7, 2020. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

Written communications and summaries or transcripts of oral communications respecting the merits of this proceeding, from any outside party to any Commissioner or Commissioner's advisor, will be placed on the public record. 15

Under the Paperwork Reduction Act of 1995 (PRA), 16 federal agencies are generally required to seek Office of Management and Budget (“OMB”) approval for information collection requirements prior to implementation. Under the PRA, the FTC may not conduct or sponsor an information collection—and, notwithstanding any other provision of law, a person is not required to respond to one—unless the information collection displays a valid control number assigned by OMB.

This proposal would amend 16 CFR part 642. The Rule does not contain information collection requirements as defined by the PRA. The rule requires certain motor vehicle dealers using consumer reports to provide consumers with opt-out notices, and the proposed amendments include a model notice motor vehicle dealers may use. Public disclosure of information originally supplied by the federal government for the purpose of disclosure to the public is not included within the definition of the collection of information. 17 Therefore, the Commission does not believe the proposed amendments would add any “collections of information” as defined by the PRA.

The Regulatory Flexibility Act (“RFA”), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires an agency to either provide an Initial Regulatory Flexibility Analysis (“IRFA”) with a proposed rule, or certify that the proposed rule will not have a significant impact on a substantial number of small entities. 18 The Commission does not expect that the proposed changes to this Rule, if adopted, would have the threshold impact on small entities. The Commission does not expect the proposal to impose costs on small motor vehicle dealers because the amendments are primarily for clarification purposes and should not result in any increased burden on any motor vehicle dealer. Thus, a small entity that complies with current law need not take any different or additional action if the proposal is adopted.

Therefore, based on available information, the Commission certifies that amending the Address Discrepancy Rule as proposed will not have a significant economic impact on a substantial number of small businesses. Although the Commission certifies under the RFA that the proposed amendment would not, if promulgated, have a significant impact on a substantial number of small entities, the Commission has determined, nonetheless, that it is appropriate to publish an IRFA to inquire into the impact of the proposed amendment on small entities. Therefore, the Commission has prepared the following analysis:

To address the Dodd-Frank Act's changes to the Commission's rulemaking authority, the Commission proposes to clarify that the Rule applies only to motor vehicle dealers and to reinstate a model form.

The objectives of the proposed Rule are discussed above. The legal basis for the proposed Rule is 15 U.S.C. 1681m(d).

Determining a precise estimate of the number of small entities  19 is not readily feasible. Financial institutions covered by the Rule include certain motor vehicle dealers. A substantial number of these entities likely qualify as small businesses. The Commission estimates that the proposed amendment will not have a significant impact on small businesses because it imposes no new obligations.

The proposed amendments would impose no new reporting, recordkeeping, or other compliance requirements. The small entities potentially covered by the proposed amendment will include all such entities subject to the Rule.

The Commission has not identified any other federal statutes, rules, or policies that would duplicate, overlap, or conflict with the proposed amendment. Nonetheless, the Commission requests comment on the extent to which other federal standards involving consumer reports may duplicate, satisfy, or potentially conflict with the Rule's requirements for any covered financial institutions.

The Commission has not proposed any specific small entity exemption or other significant alternatives because the proposed amendment would not impose any new requirements or compliance costs. Nonetheless, the Commission welcomes comment on any significant alternative consistent with the FCRA that would minimize the impact of the proposed Rule on small entities.

For the reasons stated above, the Federal Trade Commission proposes to amend title 16 of the Code of Federal Regulations as follows:

In 1990, section 554 of the Cranston Gonzalez National Affordable Housing Act (Pub. L. 101-625, approved November 28, 1990) amended the United States Housing Act of 1937 by adding a new Section 23 (42 U.S.C. 1437u) to create the FSS program. The FSS program requires that PHAs) and Indian Housing Authorities (IHAs)  1 use Public and Indian Housing assistance and Section 8 Housing assistance rental voucher programs, together with public and private resources, to provide supportive services, case management, and an escrow account to participating families, with the intent to help families achieve economic independence and self-sufficiency. The goal of the program is to enable participating low-income families to increase their earned income and reduce their dependency on welfare assistance and rental subsidies. FSS program coordinators create plans with participating families to achieve goals and connect them with services that will assist the family in making progress toward economic security. As the family's earnings increase, the difference between the original rent and the rent that increases due to increased earned income is credited to an interest-bearing escrow account on behalf of the family. Families that meet program requirements and successfully complete the FSS program receive their accrued FSS escrow funds, plus interest. No formal restrictions exist on the use of the escrowed funds, but many families use the funds to help with the purchase of a home, debt reduction, post-secondary education, or to start a new business.

In September 1991, HUD initially implemented the FSS program by notice  2 and the following year made several additional changes to the FSS program to implement amendments made by the Housing and Community Development Act of 1992 (Pub. L. 102-550), approved October 28, 1992 (the 1992 Act). (See section 106 of the 1992 Act.) On May 27, 1993, HUD issued an interim final rule implementing the FSS program in its Indian Housing program at 24 CFR part 905, Public Housing program regulations at 24 CFR part 962, and Section 8 program regulations at 24 CFR part 984. 56 FR 49588. On March 5, 1996, HUD streamlined the FSS program by consolidating the Public Housing and the Section 8 FSS regulations and by eliminating redundant or otherwise unnecessary provisions into 24 CFR part 984. 61 FR 8814.

On October 26, 1996, the Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA) (25 U.S.C. 4101 et seq. ) amended the United States Housing Act of 1937 by removing the language applying the FSS program to IHAs. HUD subsequently removed the FSS regulations applicable to the Indian Housing program. 63 FR 12334. Lastly, on March 29, 2000, HUD implemented changes to the FSS program made by the Quality Housing and Work Responsibility Act of 1998 (title V of the FY 1999 HUD Appropriations Act, Pub. L. 105-276, 112 Stat. 2518, approved October 21, 1998), which amended the United States Housing Act of 1937 (42 U.S.C. 1437, et seq. ) by changing the definition of welfare assistance, the minimum program size, action plan, and portability. 65 FR 16691.

More recently, the 2015 Consolidated Appropriations Act (Pub. L. 113-235), approved December 26, 2014, authorized a demonstration of the FSS program for multifamily assisted housing owners. In August 2016, HUD provided the requirements for multifamily assisted housing owners seeking to implement a voluntary FSS program by notice. See Family Self-Sufficiency Program in Multifamily, Housing Notice: H-2016-08, August 26, 2016. The notice incorporated many of the definitions and requirements that are found in 24 CFR part 984 and applied them to the voluntary FSS program for multifamily owners.

On May 24, 2018, the Economic Growth, Regulatory Relief, and Consumer Protection Act (the “Economic Growth Act”) was signed into law (Pub. L. 115-174), and section 306 of title III, Protection for Veterans, Consumers and Homeowners, amended the United States Housing Act of 1937 (42 U.S.C. 1437, et seq. ), FSS program. The changes include updating the mandatory size of a PHA's required FSS program and available exceptions; updating definition of eligible families; allowing family members other than the Head of Household to sign the Contract of Participation (CoP) and to meet the employment obligation; amending the process for providing supportive services; expanding the time period for participating in the FSS program; amending the requirements pertaining to the management of the escrow account, including the requirements for forfeiture of the escrow funds; amending the Program Coordinating Committee (PCC) functions; and, establishing new reporting requirements. Also, the Economic Growth Act provided new provisions for private owners of multifamily assisted housing to set up their own FSS program or enter into a Cooperative Agreement with another private owner or PHA to offer an FSS program to the owner's assisted residents.

This proposed rule implements changes and streamlines the FSS program, removes any reference to the certificate program and updates definitions, as required by the Economic Growth Act. HUD makes changes to the existing FSS regulations at 24 CFR part 984 and adds a new 24 CFR part 887 to address the FSS program for owners of multifamily assisted housing. HUD also updates references to PHAs and owners and clarifies the provisions that would apply to both when operating an FSS program. Owners would be subject to the requirements only if they are operating a voluntary program pursuant to cross-references in 24 CFR part 887. The following describes the significant changes to the regulation:

The purpose and applicability in § 984.101 has minor technical changes. The scope of the regulations, paragraph (c), is amended by removing subsections (1), (2), (3)(i), and (3)(ii) and by adding a generic reference to § 984.105, which provides that PHAs must continue an FSS program if they were required to have one as of May 24, 2018. Therefore, the citation to specific fiscal year (FY) funding is removed and replaced by a general requirement that PHAs receiving funding under section 8(o) and section 9 are required to comply with § 984.105. A non-participation paragraph is also added to this section, to clarify that a family's rental assistance shall not be delayed or terminated by reason of a family electing not to participate in an FSS program.

HUD makes a minor amendment to this section, including a change clarifying that HUD will evaluate the performance of a local FSS program using a scoring system that measures graduation from the program, increased earned income, program participation, and similar factors, as provided by HUD through a Federal Register notice.

The proposed rule streamlines and adds clarity to the definition of eligible families. The term “eligible families” is defined under the proposed rule as current Public Housing residents and families receiving tenant-based or project-based assistance under section 8(o). This means that participants in the Housing Choice Voucher (HCV) homeownership program (under section 8(y) of the U.S. Housing Act of 1937) are not eligible to participate in the FSS program. However, participants in the Project Based Voucher (PBV) program (under section 8(o)(13) of the U.S. Housing Act of 1937) are eligible to participate. The proposed regulations include definitions for “owner” and “multifamily assisted housing” to clarify the newly expanded applicability of regulations for owners of multifamily assisted housing (also known as Project-Based Rental Assistance (PBRA)) under section 8 of the 1937 Act.

Similarly, the following terms have been added to provide clarity to the process of calculating an FSS family's escrow: “baseline annual earned income”; “baseline monthly rent”; “current annual earned income”; and “current monthly rent.” In the definition of baseline annual earned income, the proposed rule instructs PHAs and owners to add back any disregard of earned income associated with self-sufficiency initiatives that may be applicable in the determination of family income. This will help ensure that escrow amounts are the result of increases in earned income while the family is in the FSS program (as opposed to credit for progress made before entering the FSS program). Additionally, the definitions of “baseline monthly rent” and “current monthly rent” take into account the use of flat rents and ceiling rents for Public Housing families. This ensures that families paying a flat rent or ceiling rent that is less than their income-based rent will escrow only up to the amount of rent that they are actually paying (flat/ceiling rent). A definition for the term “FSS family in good standing” has been added because this term is used in § 984.305(c)(1) and (f)(2) of the proposed rule.

Section 306 of the Economic Growth Act changes the requirement that a PHA directly deliver supportive services, to requiring that a PHA or owner must only coordinate the availability of supportive services but not directly deliver. Also, section 306 makes slight changes to the list of supportive services that may be coordinated through the FSS program. The proposed rule revises the definition of supportive services to conform to these statutory changes.

The following terms have been revised to conform to changes described later in this preamble: “FSS family,” “FSS slots,” “head of the FSS family,” and “Individual Training and Services Plan” (ITSP). In addition, the following terms have been removed because they refer to obsolete programs that are no longer referenced in the regulation: Job Opportunities and Basic Skills Training (JOBS) and Jobs Training and Partnership Act (JTPA) programs. The Economic Growth Act changed the term of the FSS contract so an FSS family will be required to fulfill their obligations under the CoP no later than 5 years after the first recertification of income after the execution date of the contract. HUD is revising the definition of the effective date of the CoP from the first day of the month following the month in which the parties executed the contract to the date the parties execute (sign) the contract.

Question 1: HUD requests feedback on how the proposed rule defines the effective date of the CoP. Specifically, are there rent or other implications which would cause the proposed definition to be an issue?

The proposed rule revises § 984.104 to add reference to the regulatory citations for the program.

Some PHAs are statutorily required to operate an FSS program as a result of accepting increased funding for vouchers and Public Housing between the inception of the FSS program in 1990 and the Quality Housing and Work Responsibility Act in 1998. Current regulation addresses the minimum program size separately for the Public Housing FSS and the Section 8 FSS programs; however, FSS funding streams have been combined since the Consolidated Appropriations Act, 2014, Public Law 113-76, 128 Stat. 5, enacted January 17, 2014. This unification of the FSS program is further reflected in section 306 of the Economic Growth Act. The proposed rule revises the provisions concerning the determination of the minimum program size to conform to the unified FSS program. Specifically, the proposed rule clarifies that when determining the minimum program size ( i.e., the minimum number of families that a PHA must serve in its FSS program), the relevant figure is the total number of Public Housing units plus the total number of Section 8 units. The provisions concerning how to calculate the reduction in the total number of Public Housing units and Section 8 units over time, as used to determine the minimum FSS program size, remain the same. Therefore, the proposed rule replaces the complex formula for determining a PHA's program size with the language from the statute indicating that a PHA's program size must equal the total number of families required to be served as of May 24, 2018, as a starting point.

PHAs should continue to use the formula that HUD issued in its final rule on March 5, 1996, 61 FR 8815, consistent with the statutory requirement that as of October 1, 1992, the Secretary shall require PHAs that administer assistance under subsection (b) or (o) of 42 U.S.C. 1437f or makes available new public housing dwelling units, to carry out a local FSS program.

The proposed rule maintains reference to the reduction of the minimum program size in § 984.105(b)(2). Specifically, the proposed rule revises that paragraph to allow for a reduction of the minimum program size by one slot for each family that graduates from the FSS program, from either rental assistance program (Public Housing or Section 8) by fulfilling its FSS CoP on or after October 21, 1998. This change conforms to section 306 and to HUD's implementation of FSS alternative requirements in the Waivers and Alternative Requirements for the FSS Program Federal Register Notice (79 FR 78100, December 29, 2014).

The proposed rule also conforms to the list of local circumstances that make it unfeasible for a PHA to operate an FSS program and for which the PHA may get HUD approval for an exception to program operation or an exception to operate a smaller program. HUD has taken this opportunity to change the duration of any HUD-approved exception from 3three years to five years. HUD proposes that an increase of HUD-approved exceptions to five years is a more reasonable timeframe and provides for PHAs at the end of such period, to restart the exception approval process (if seeking to continue the exception). Additionally, if circumstances change within those five years, PHAs are not required to carry through the exception for the full five years.

Question 2: HUD welcomes feedback regarding this change. Specifically, do commenters agree that five years is a more reasonable duration for a HUD-approved exception? Or is there another timeframe that would more accurately balance changes in circumstances and the PHA's administrative responsibilities at the end of the exception?

Section 306 of the Economic Growth Act provides that a PHA may enter into a Cooperative Agreement with one or more owners of multifamily properties to voluntarily make an FSS program available to the owner's assisted tenants. The PHA would manage the service coordination for eligible families that are covered under the Cooperative Agreement. This new section would provide that in addition to complying with the rest of part 984, the PHA administering the FSS program must do so in accordance with the requirements in this section. Those requirements are as follows: (1) FSS program waiting lists must be open to all eligible families residing in the multifamily properties covered by the Cooperative Agreement; (2) escrow amounts must be managed by each owner, including calculating and tracking of the escrow must be done in accordance with § 984.305; (3) an owner's assisted families covered by the Cooperative Agreement may be part of the calculation of the FSS award under §§ 984.107 and 984.302; (4) FSS funds awarded to the PHA may be used by the PHA to serve an owner's assisted families covered by the Cooperative Agreement; and (5) the Cooperative Agreement must clearly specify the terms and conditions of such agreement.

Question 3: HUD specifically requests comments on whether this list is comprehensive or if other items should be required of PHAs and owners entering into a Cooperative Agreement.

Section 306 of the Economic Growth Act provides the Secretary the authority to award funds by formula and set forth new procedures and processes. This section incorporates the statutory language providing that the Secretary may establish a formula by which funds for administration of the FSS program are awarded and indicating any changes to such formula, as permitted by statute, are accomplished by notice in the Federal Register .

Technical revisions to the list of parties who should be consulted in developing an action plan and the contents of the plan are included in this section of the proposed rule, to conform with the slight changes under section 306 of the Economic Growth Act. Additionally, since all PHAs would have already submitted an FSS Action Plan, HUD has taken this opportunity to remove the reference to the initial submission of an FSS Action Plan for PHAs with mandatory programs. The section also indicates that owners operating a voluntary FSS program would be required to have an approved FSS Action Plan but distinguishes the level of consultation required of PHAs versus owners. This distinction, on FSS requirements for owners in 24 CFR part 887, is discussed further below.

HUD takes this opportunity to revise the provisions concerning required PCC membership to streamline, simplify, and unify such provisions. Specifically, the proposed rule would continue to require representatives from the participating PHA to be members of the PCC and require an FSS Coordinator or Coordinators to be PCC members as well. Additionally, the proposed rule would require that at least one resident participant from each HUD-assisted program served by FSS is a member of the PCC. PHAs would no longer be required to formally solicit such participants from the resident groups identified in the regulation. Rather, PHAs may seek such group's assistance, if needed, to identify such participants.

The provisions concerning recommended membership in § 984.202(b)(2) and alternative committees in § 984.202(c) have also been revised to conform to changes made in section 306 of the Economic Growth Act. Specifically, reference to the JOBS and JTPA programs have been replaced with reference to programs under the Workforce Innovation and Opportunity Act. In addition, at least one participant of each HUD-assisted program served by FSS must be consulted in determining whether to use an existing entity as the PCC.

This rule adds that a PHA or owner may use FSS funds for costs associated with families who are enrolled in an FSS program under this part, including through a Cooperative Agreement with an owner of multifamily assisted housing in accordance with § 984.106.

The Economic Growth Act revises the requirement that the Head of Household (for rental assistance purposes) must be the person to execute the Contract of Participation (CoP). Instead, it allows any adult member of the FSS family to execute the CoP. The proposed rule revises paragraph (a) to incorporate this change and clarifies that an adult family member, as designated by the FSS family in consultation with the PHA or owner, is eligible to execute the contract.

Question 4: While HUD has carefully considered all areas of the regulation that are impacted by this change, and revised them accordingly, HUD requests comment on whether there are other places that such clarification should be included.

The proposed rule revises the amount of time a family must be independent from welfare assistance prior to expiration of the CoP, in § 984.303 (b)(2). Currently, one of the required goals for a family is that it must be independent from welfare assistance for 12 months before the expiration of the FSS CoP. In this proposed rule, a family must be independent from welfare at the time of graduation from FSS but not independent for a specified time period prior to graduating from the FSS program. This change would ensure that an FSS family's successful graduation, and access to escrow funds, is not jeopardized if they do not meet the 12-month time period, if the family has worked successfully towards all the other goals. It also provides some administrative relief to PHAs and owners who would no longer have to ensure that families have met the 12-month time period. HUD welcomes feedback regarding this change. Specifically:

Question 5: Would commenters recommend giving PHAs the discretion to set a specified time period (up to a maximum)? Is 12 months a reasonable maximum? What are some of the benefits and challenges PHAs face with the current 12-month time period?

Question 6: How would requiring families to be independent from welfare for a specified time period link with Temporary Assistance for Needy Families (TANF) requirements? How would it enhance or obstruct such requirements?

Question X: Would removing the 12-month requirement decrease the incentive for participants to permanently stay off welfare?

HUD adds language in paragraph (b)(2) that the FSS family goals must comply with the parameters of the FSS terms and conditions as prescribed by HUD, and the PHA or owner may not modify or add additional required activities that must be completed by every participant. Specifically, HUD requires that the CoP represent an individualized training and service plan, and, thus, PHAs and owners should not require a certain number of hours, rate of pay, or other mandatory requirements that apply to all participants across the board.

Consistent with the change to paragraph (a), paragraph (b)(4) is changed to reflect that employment must be maintained by the head of the FSS family, not the Head of Household, consistent with the statutory change permitting participation in the FSS program by any adult member of the family. Also, as required by the Economic Growth Act, HUD is deleting § 984.303(b)(5)(iii), which currently indicates that the PHA could terminate or withhold the family's Section 8 assistance for non-compliance with the COP. Eliminating the ability of a PHA to terminate or withhold assistance is expected to incentivize greater participation in the FSS program. With respect to 984.303(d), HUD proposes to expand the definition of “good cause” for a contract extension in paragraph (d), to include the active pursuit of a goal that will further self-sufficiency, such as a college degree or credit repair program. Additionally, any extension of the contract must be made pursuant to a current or additional stated goal for the FSS family.

Question 7: HUD requests comments on whether this definition should be clarified to include additional circumstances, like serious illness or involuntary loss of employment, which are already causes for extension.

Paragraph (g) is amended to remove the provision that automatically completes the FSS contract when thirty percent (30%) of the family's adjusted monthly income equals or exceeds the Fair Market Rent (FMR). HUD believes that the thirty percent (30%) provision no longer aligns effectively with current HCV requirements and creates confusion among FSS coordinators and partners. Removal of this provision would allow FSS families to use the FSS program to its full potential.

Question 8: HUD requests comments on the removal of this automatic completion provision; and, whether there are circumstances where an FSS contract should be automatically completed.

The section has a new paragraph (k) that discusses the nullification of a CoP. Nullification would occur when the PHA or owner determines that services integral to an FSS family's advancement towards self-sufficiency are unavailable or when the head of the FSS family becomes permanently disabled and unable to work or dies during the period of the contract, unless the PHA or owner and the FSS family determine that it is possible to modify the contract to designate a new head of the FSS family. The new paragraph describes the management of the escrow funds in the case of nullification.

Question 9: HUD requests comments about the language added regarding the handling of escrow funds in the case of nullification.

The proposed rule revises the provision concerning increases in family income. Prior to the Economic Growth Act, an FSS family's increases in earned income during their participation in FSS could not be considered as income or a resource for eligibility for other benefits, or amount of benefits payable to the family, under any HUD program, unless the family income equaled or exceeded 80 percent of the area median income. The Economic Growth Act removes this last provision and allows an FSS family's increases in earned income during their participation in FSS to be excluded as income or a resource regardless of whether the family income equals or exceeds 80 percent of the area median income. Additionally, HUD streamlines this section by removing a reference to the calculation of rent for the rental certificate participants because the certificate program is obsolete and adds the regulatory citations for calculation of rent for the PBV program.

Section 984.305(a)(2)(i) of the current regulation requires that, during the term of the FSS contract, the PHA credits the escrow amount to each family's FSS account periodically but not less than annually. The proposed rule revises and clarifies the requirement by differentiating between “determining the FSS escrow amount” and “crediting that FSS escrow amount” to a family's FSS account. Under the proposed change, during the term of the CoP, the PHA must determine the monthly escrow credit amount at each reexamination of income occurring after the effective date of the CoP. That amount is then deposited ( i.e., credited) every month into each family's FSS account. This change aligns the calculation of the FSS escrow amount with the timing of the family's reexamination of income and provides the ability to report real-time information on a family's FSS account. The requirement to provide an FSS escrow account report to the family, at least annually, has not changed; however, a family may inquire about their FSS escrow balance at any time.

Question 10: Is the proposed frequency of depositing escrow amounts to a family's FSS account reasonable? Should HUD consider another frequency, and why?

Question 11: Current regulations do not address whether escrow should be credited to a family's FSS account if the family does not pay rent on time. HUD requests comments on whether the family's FSS account should be credited for late payments. Please provide comments both on regulation and on how the regulation could be implemented, especially in the case of the voucher programs where rent is paid to landlords and not directly to the PHAs.

The proposed rule revises the provision concerning reduction of amounts due by the FSS family under paragraph (a)(2)(iii) of this section. Under current regulation, the balance on a family's FSS escrow account must be reduced before prorating the interest income, by amounts not paid by the family for rent, or any other amounts due by the family under the applicable housing program. Such amounts are also reduced from a family's FSS escrow balance at the time of final escrow disbursement. The proposed rule no longer requires that the balance on a family's escrow account be reduced by these amounts each time interest income is prorated. Instead, the total balance on a family's FSS escrow account (including interest accrued over the life of the escrow account) is reduced by such amounts only at the time of final escrow disbursement in accordance with § 984.305(c). HUD believes that the regulation appropriately addresses amounts due by the family by adjusting the family's FSS escrow balance only at the time of final escrow disbursement. This change also streamlines management of the FSS escrow account and provides administrative relief to FSS PHAs and owners.

HUD is proposing to address the requirements concerning updating income information prior to the execution of an FSS CoP. Current FSS regulations do not address this requirement; however, the FSS CoP (form HUD-52650) requires PHAs to conduct an income recertification if more than 120 days have passed between the effective date of the last income recertification and the effective date of the CoP. HUD believes this is best left to PHA/owner discretion and is adding language to § 984.305(b)(1) to explicitly afford PHAs and owners discretion to decide whether to conduct a new income recertification if more time than the period specified by the PHA or owner has passed between the effective date of the last income recertification and the effective date of the CoP.

Question 12: While HUD recognizes that owners would not have the same flexibility that PHAs have for this type of income recertification, HUD requests comments from the public as to whether this should be available to multifamily owners as it is for PHAs.

Pursuant to the Economic Growth Act, § 984.305(b) is revised to update the calculation of the escrow amount and to remove any language that does not conform with the Act. Specifically, the statute, and the proposed rule, removes any difference in the calculation of escrow between very low-income and low-income families. HUD has also taken the opportunity to further update and streamline the escrow calculation. The proposed rule no longer differentiates in how family rent is defined for the Public Housing and the HCV programs. Instead, the proposed rule adds a new set of definitions, as described in § 984.103 of this preamble, to provide further clarity to the process of calculating the escrow credit. The proposed rule changes the calculation of escrow to the lower of: (i) Thirty (30) percent of one-twelfth (1/12) ( i.e., two and a half (2.5) percent) of the amount by which the family's current annual earned income exceeds the family's baseline annual earned income; or (ii) the amount by which the family's rent has increased. This calculation ensures that the FSS escrow credit is limited to increases in the amount of rent paid by the family that is attributable to increases in earned income. In the first part of the calculation, one-twelfth is used to calculate the growth in monthly, instead of annual, earned income, and 30 percent is used because that's the percentage of adjusted income generally used to determine the family's monthly rent.

The second part of the calculation, which looks at increases in the family's rent, uses the lower of: (A) The amount by which the family's current monthly rent exceeds the family's baseline monthly rent; (B) for HCV families, the difference between the baseline monthly rent and the current gross rent ( i.e., rent to owner plus any utility allowance) or the payment standard, whichever is lower; or (C) for PBV families, the difference between the baseline monthly rent and the current gross rent ( i.e., rent to owner plus any utility allowance). This ensures that families are not escrowing more than the current gross rent for the unit ( i.e., rent to owner plus any utility allowance) or the payment standard (for HCV families). And, it more accurately applies HCV and PBV rent rules to the calculation of escrow.

To put it another way: If a family has no change in earned income, but rent does go up for whatever reason (flat rent is recalculated, a non-income-based rent increase kicks in, an income disregard ends, increase in non-earned income, decrease in deductions, etc.), the paragraph (i) calculation will be lower. Or, a family has a change in earned income, but rent does NOT go up (due to flat rent, ceiling rent, income disregard, or some other non-income-based rent model) then the paragraph (ii) calculation will be lower.

HUD will update the current FSS escrow calculation worksheet applicable to HCV and Public Housing families to conform with the regulatory changes and to provide further clarity. HUD has made available a copy of the revised worksheet with this proposed rule in Appendix A. To review and test the proposed Sample FSS Escrow Calculation Worksheet, please find on the HUD FSS web page: https://www.hud.gov/program_offices/public_indian_housing/programs/hcv/fss. Please submit comments on the proposed worksheet using the same process as commenting on the Proposed Rule. The Housing office will be creating a similar calculation worksheet that reflects any differences in escrow calculation in the multifamily program.

Question 13: Does the streamlined escrow calculation, as reflected in the regulation and the revised escrow calculation form, effectively simplify the calculation of escrow? Are there elements of the calculation that should be done differently? This includes how to address alternatives to income-based rents and any other specific situations you may encounter at your PHA. If so, why and how? For PBRA Owners—please comment on any sections of the escrow calculation worksheet that should be modified for PBRA FSS participants. Please submit proposed edits to the form if needed.

Section 984.305(b)(4) is also revised to address the impact on escrow for HCV families who are in the process of moving to a new unit, in accordance with HCV program requirements, and that are not under a lease during that time. Specifically, § 984.305(b)(4) is revised to clarify that escrow credits cease during the HCV family's search period if the family is not under a lease. Escrow credits resume once the family finds a unit and enters into a lease. HUD interprets the FSS statute as requiring the payment of rent by a family in calculating the amount of the family's escrow credit. Similarly, the FSS statute provides that an eligible entity may use funds it controls under section 8 for purposes of making the escrow deposit for participating families, if those funds are offset by the increase in the amount of rent paid by the family. Such an offset would not be possible if the family is not under a lease and, consequently, not paying rent.

Section 984.305(f) currently provides that escrow funds are forfeited when the FSS contract is nullified under § 984.303(e), in cases where supportive services integral to the FSS family are unavailable to the FSS family. HUD proposes to change the policy and allow escrow funds to be disbursed to the FSS family in the case of a nullified contract. HUD believes that disbursement of escrow funds is justified because nullification of the CoP under these circumstances is at no fault of the family. Paragraph (c)(3) has been added to address this change and paragraph (f) has been modified to remove reference to forfeiture of escrow for nullified contracts.

Paragraph (f) is amended to conform with the statutory change under the Economic Growth Act, which provides that forfeited FSS escrow funds must be used for the benefit of FSS participants in good standing. The section provides the following list of activities for which forfeited escrow funds may be used: Support for FSS participants in good standing; training for program coordinators; and, other eligible activities as determined by the Secretary. A list of ineligible uses will be included.

Question 14: HUD requests comment on what definition should apply for “participants in good standing” and whether HUD should add items to the eligible activities list for which forfeited escrow funds may be used?

HUD has taken this opportunity to change several provisions concerning FSS families that move with continued HCV assistance from the jurisdiction of one PHA to the jurisdiction of another PHA under portability. This section of the proposed rule seeks to carefully balance the complexities of a portability move, the shared FSS responsibilities between PHAs, and giving the FSS family that ports the best opportunity to successfully complete the FSS program. In addition to the changes described in the following paragraphs, editorial changes have been made to this section for clarity.

Under the current FSS regulation, a receiving PHA may, at its discretion, enroll into its FSS program an FSS family that ports into its jurisdiction. And, the initial PHA may determine that an FSS family that ports may continue to participate in the initial PHA's FSS program, if the FSS family demonstrates to the satisfaction of the initial PHA that the family will be able to fulfill its responsibilities under the FSS contract. The proposed rule revises this framework, by instead requiring that the receiving PHA enroll into its FSS program FSS families that port, unless the receiving PHA and the initial PHA agree to the family's continued participation in the initial PHA's FSS program. This change facilitates the continuity of services and case management to the family, it facilitates the family's move, and it prevents the potential loss of escrow funds. The change also recognizes that each PHA retains responsibility for certain FSS tasks after a portability move; therefore, receiving PHAs should have input on whether the family may continue to participate in the initial PHA's FSS program. Additionally, since this change is only applicable to families that were already enrolled in FSS prior to the portability move, HUD expects that this change will only impact a small number of families and PHAs.

The proposed rule addresses a scenario, not previously addressed in the regulation, in which a relocating FSS family moves to a receiving PHA that does not administer an FSS program. Under the proposed rule, continued FSS participation under this scenario is not possible. The proposed rule recognizes that there may be several options (for example, modification of the FSS contract to graduate the family, termination of the FSS contract and forfeiture of escrow, or locating a receiving PHA that administers an FSS program) available to the family and requires that the initial PHA discuss those options with the family for them to make a fully informed decision. Continued FSS participation under these circumstances is not possible because the receiving PHA would be responsible for certain FSS tasks after the move (even if the family continues to participate in the initial PHA's FSS program), and it would be burdensome to require a receiving PHA to manage such tasks for a small number of FSS families, especially in light of the administrative complexity of a portability move, which would be further complicated by the shared FSS responsibilities between PHAs.

Another situation not previously addressed in the regulation is also addressed in the proposed rule. That is, when a family who was not enrolled in FSS before the move requests enrollment in the receiving PHA's FSS program. The proposed rule states that if the receiving PHA, at their discretion, absorbs the family into its HCV program, the receiving PHA may, also at their discretion, enroll the family into its FSS program. Receiving PHAs must consistently apply their existing FSS enrollment policies to families who have ported into their jurisdiction and request to enroll in the receiving PHA's FSS program. If the receiving PHA will bill the initial PHA for the housing assistance payments, the family cannot enroll in the receiving PHA's FSS program. This restriction recognizes, as mentioned previously, the administrative complexity of a portability move may be further complicated by the shared FSS responsibilities between PHAs, and the potential inefficiencies in the administration of the FSS contract.

Question 15: HUD requests comment on these proposed changes and additions to the FSS portability provisions and whether there are more effective ways to address the balance between the administrative complexity for the PHA and the family's desire to participate in FSS.

The reporting section is amended to reflect the statutory requirement that reports include the number of families enrolled and graduated, and the number of established escrow accounts and positive escrow balances.

The Multifamily Housing FSS program's new subpart has eight sections that mirror the FSS program in 24 CFR part 984. The sections are listed as the following:

This section provides for the purpose, scope, applicability, and provision on tenant nonparticipation. Consistent with 24 CFR part 984, the purpose of the FSS program for multifamily owners is the same as for PHAs, to promote the development of local strategies to coordinate the use of HUD assistance with public and private resources and to enable families eligible to receive HUD assistance to achieve economic independence and self-sufficiency. The new 24 CFR part 887 regulations provide the requirements that an owner must follow if the owner decides to implement an FSS program independently or by way of a Cooperative Agreement with a PHA or another owner. The new 24 CFR part 887 regulations are not applicable to PHAs that must follow 24 CFR part 984. Lastly, the section provides that tenant participation in an FSS program is voluntary, and an owner must not delay or terminate assistance under Section 8 for a family that elects not to participate in an FSS program.

The definitions for multifamily assisted housing are the same as those for PHAs in § 984.103, except that eligible families in 24 CFR part 887 means tenants of multifamily assisted housing.

HUD implemented a voluntary FSS program for multifamily assisted housing through notice H 2016-08; the notice incorporated many of the provisions of 24 CFR part 984. For consistency among voluntary FSS programs, HUD proposes to make the FSS program requirements for multifamily assisted housing consistent with PHA requirements. These requirements will apply to both existing and new FSS programs. Specifically, an FSS program would be required to operate in conformity with the regulations of 24 CFR part 887 and other Section 8 regulations, as applicable. Those 24 CFR part 984 requirements are as follows: (1) Coordination of supportive services as defined in § 984.103; (2) creation of an approved Action Plan, as described in § 984.201, before operating an FSS program; (3) handling FSS funds consistent with § 984.302; (4) entering into a CoP with eligible families, § 984.303; (5) management of escrow accounts, as described in § 984.305; reporting information pursuant to § 984.401; and (6) operated in compliance with the nondiscrimination and equal opportunity requirements set forth in 24 CFR part 5. This section provides as follows: (1) Owners are permitted to make available and utilize onsite facilities, as set forth in § 984.204; and (2) owners may employ appropriate staff, including a program coordinator to administer its FSS program, and may contract with an appropriate organization to establish and administer parts of the FSS program as provided by § 984.305.

The section requires consultation with a Program Coordinating Committee (PCC) in creating an Action Plan, but it does not require the creation of a PCC under § 984.202. The multifamily assisted housing regulation does not include minimum program size requirements at § 984.105 since FSS programs are voluntary; the formula award section applying only to mandatory programs at § 984.107; the family selection process at § 984.203; and the portability requirements at § 984.306. All other provisions are adopted either in part or in whole in its application to multifamily assisted housing.

Question 16: HUD specifically asks for comments on whether the exclusion or inclusion of certain requirements for the multifamily assisted housing regulation is appropriate. Specifically, HUD excluded the family selection process at § 984.203 because HUD does not believe those requirements would be necessary due to the size of most multifamily assisted housing FSS programs. Additionally, HUD excluded the creation of a PCC because it was not statutorily required for owners in the FSS statute, but HUD does believe that coordination with some of the members of a PCC is essential in developing an Action Plan and successfully implementing an FSS program.

Section 306 of the Economic Growth Act provides that owners may enter into Cooperative Agreements with a PHA or other owner to offer an FSS program to their tenants. An owner entering into a Cooperative Agreement with a PHA must follow the requirements provided in § 984.106. An owner entering into a Cooperative Agreement with another owner must do so in accordance with the requirements in this section. The requirements are as follows: (1) Waiting lists must be open to all eligible families residing in the properties covered by the Cooperative Agreement; (2) provide that escrow amounts are handled by each owner and the calculating and tracking of escrow must be done in accordance with § 984.305; and (3) the Cooperative Agreement must clearly specify the terms and conditions of such agreement.

Question 17: HUD specifically requests comments on whether this list is comprehensive or if other items should be required of owners entering into a Cooperative Agreement.

This section mirrors § 984.304 and provides that housing assistance payments for FSS families are the same as those provided to any other tenant living in the property. Paragraph (b) provides the process for determining total tenant payment. Paragraph (c) provides that when an FSS family's income increases during its participation in an FSS program, the increase may not be considered as income or a resource for purposes of eligibility of the FSS family for other benefits, or amount of benefits payable to the FSS family, under any other program administered by HUD. For multifamily assisted housing, money that goes into escrow is offset by additional housing assistance payment (HAP) to the owner from HUD as a positive adjustment to the monthly voucher.

Section 306 of the Economic Growth Act provides the Secretary the authority to award funds by formula and set forth new procedures and processes. This section incorporates the statutory language providing that the Secretary may establish a formula by which funds for administration of the FSS program are awarded and indicating any changes to such formula, as permitted by statute, are accomplished by notice in the Federal Register . This section mirrors § 984.107.

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

Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and; therefore, subject to review by the Office of Management and Budget (OMB), in accordance with the requirements of the order. This rule was determined to be a “significant regulatory action” as defined in section 3(f) of the Executive Order, but not an economically significant regulatory action, as provided under section 3(f)(1) of Executive Order 12866. Consistent with Executive Order 13563, this rule implements the streamlining requirements of section 306 and provides additional flexibility for PHAs and multifamily owners. HUD has prepared an initial Regulatory Impact Analysis (RIA) that addresses the costs and benefits of the proposed rule. HUD's RIA is part of the docket file for this rule.

The docket file is available for public inspection in the Regulations Division, Office of General Counsel, Room 10276, 451 7th Street SW, Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the docket file by calling the Regulations Division at 202-402-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the Federal Relay Service at toll-free 800-877-8339.

Executive Order 13771, entitled “Reducing Regulation and Controlling Regulatory Costs,” was issued on January 30, 2017. Section 2(a) of Executive Order 13771 requires an Agency, unless prohibited by law, to identify at least two existing regulations to be repealed when the Agency publicly proposes for notice and comment or otherwise promulgates a new regulation. In furtherance of this requirement, section 2(c) of Executive Order 13771 requires that the new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. For the reasons discussed in the Regulatory Impact Analysis, this proposed rule has been determined to be an Executive Order 13771 deregulatory action.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a valid control number. The information collection requirements contained in this proposed rule have been submitted to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB control number 2577-0178.

The proposed rule would require changes to the existing approved paperwork to include multifamily, addition of a Notice of Funding Availability (NOFA) narrative, and the Cooperative Agreement. The overall reporting and recordkeeping burden are estimated as follows:

On May 26, 2020, the Cohasset 250th Anniversary 2020 Committee notified the Coast Guard that it will be conducting a fireworks display from 9 p.m. to 10 p.m. on November 28, 2020, to commemorate the 250th anniversary of Cohasset. The fireworks are to be launched from a barge in the Atlantic Ocean approximately 1000 feet north of the Sandy Beach in Cohasset, MA. Hazards from firework displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The Captain of the Port Boston (COTP) has determined that potential hazards associated with the fireworks to be used in this display would be a safety concern for anyone within a 420-foot radius of the barge.

The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within a 420-foot radius of the fireworks barge before, during, and after the scheduled event. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

The COTP is proposing to establish a safety zone from 9 p.m. to 10 p.m. on November 28, 2020. The safety zone would cover all navigable waters within 420 feet of a barge in the Atlantic Ocean located approximately 1000 feet north of Sandy Beach, Cohasset, MA. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 9 p.m. to 10 p.m. fireworks display. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

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

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

This regulatory action determination is based on this regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic would be able to safely transit around this safety zone which would impact a small designated area of the Atlantic Ocean for one hour during the evening when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

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

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

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting one hour that would prohibit entry within 420 feet of a fireworks barge. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at https://www.regulations.gov. If your material cannot be submitted using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to https://www.regulations.gov and will include any personal information you have provided. For more about privacy and submissions in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 165 as follows:

In this rulemaking, EPA is proposing to approve changes to Regulation 6.13, Standards of Performance for Existing Storage Vessels for Volatile Organic Compounds, and Regulation 7.12, Standards of Performance for New Storage Vessels for Volatile Organic Compounds, of the Louisville Metro Air Pollution Control District portion of the Kentucky SIP, submitted by the Commonwealth on September 5, 2019. These modifications update the current SIP-approved version of Regulation 6.13 (Version 7) and Regulation 7.12 (Version 7) to Version 8 of each.

The Commonwealth of Kentucky previously submitted SIP revisions related to this action on March 23, 2018, which included changes to APCD Regulations 6.13 and 7.12. Those SIP revisions were approved by EPA on October 1, 2019. See 84 FR 51983. In the District's March 23, 2018, submittals, Section 1 (Applicability) of APCD Regulation 6.13 and Regulation 7.12 were revised to include an additional criteria of “true vapor pressure of the VOCs as stored equal to or greater than 78 mm Hg [millimeters of mercury] (1.5 psia [pounds per square inch absolute]).” This change was consistent with the minimum true vapor pressure of VOCs subject to the emission control standards provided in Section 3 (Standard for Volatile Organic Compounds) of these regulations. Section 5 (Monitoring of Operations), however, continued to contain monitoring requirements under subsection 5.1 that applied to certain vessels “having a true vapor pressure greater than 7.0 kPa [kilopascal] (1.0 psia).” As noted in EPA's June 5, 2019, proposed action, the District explained that the monitoring requirements in subsections 5.1 and 5.2 would continue to apply to sources that store a liquid having a true vapor pressure greater than 1.0 psia despite the addition of the 1.5 psia criteria to Section 1.

In their September 9, 2019, submittals, the District includes a modification that changes the true vapor pressure criteria of subsection 5.1 from 1.0 psia to 1.5 psia to better align with the general applicability provision of Section 1 of Regulations 6.13 and 7.12. Subsection 5.1 is a monitoring requirement which applies only to storage vessels that (1) have an external floating roof, (2) have a capacity of greater than 40,000 gallons, and (3) are not equipped with a secondary seal or approved alternative control technology. The District notes that because subsection 3.4 of Regulations 6.13 and 7.12 explicitly requires secondary seals for nearly all storage tanks with capacity of greater than 40,000 gallons, there are very few tanks which could be subject to subsection 5.1. The only exceptions to the subsection 3.4 requirement for installing secondary seals would be, as described in subsections 3.4.1 through 3.4.3, for welded tanks storing liquids with a true vapor pressure of less than 4.0 psia and for certain types of primary seals, which the District states are “a very small portion of the hundreds of facilities to which [Regulations 6.13 and 7.12] are applicable.”  1 In addition, the District states that they currently permit no external floating roof tanks without secondary seals or approved alternative technologies, so the monitoring requirement in subsection 5.1 does not currently apply to any facilities under their jurisdiction. 2 EPA also notes that this change does not alter the number of tanks subject to emission controls and that subsection 5.1 does not apply to any storage vessels that are newly constructed or modified after July 23, 1984, because such vessels would be subject to EPA's New Source Performance Standards subpart Kb which requires that a secondary seal be installed. See 40 CFR 60.112b(a)(2). For these reasons, EPA proposes to determine that, in accordance with CAA section 110(l), the changes will not interfere with attainment or maintenance of a NAAQS, reasonable further progress toward attainment of a NAAQS, or any other applicable requirement of the CAA.

The September 9, 2019, SIP revisions also contain the following changes: necessary renumbering of Regulation 6.13, Section 2; revising units of pressure measurement from mm Hg to the International System of Units standard kPa in Regulations 6.13 and 7.12, Sections 1 and 3; correcting 11.1 psia to 11.0 psia as this is equivalent to the pressure of 570 mm Hg in Regulations 6.13 and 7.12, Section 3; changing 10.3 kPa to 10.4 kPa for consistency within Section 3 of Regulation 7.12, Section 3.4.3; clarifying that subsection 3.3 applies only to vessels with a storage capacity of less than 40,000 gallons in Regulations 6.13 and 7.12, Section 3;  3 changing the word “section” to “subsection” in Regulation 6.13, Section 3; and replacing the term “VOCs” with the phrase “volatile organic compounds” in Regulation 7.12, Sections 2 and 3. EPA is proposing to determine that these changes will not interfere with attainment or maintenance of a NAAQS, reasonable further progress, or any other applicable requirement of the CAA because they are minor in nature and do not change the number of tanks that are subject to emission controls under these regulations.

In this document, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference APCD Regulation 6.13, Standards of Performance for Existing Storage Vessels for Volatile Organic Compounds, Version 8, and Regulation 7.12, Standards of Performance for New Storage Vessels for Volatile Organic Compounds, Version 8, effective June 19, 2019, which make minor amendments to units of measurement and the applicability of standards for both existing and new storage vessels for volatile organic compounds. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

EPA is proposing to approve the changes to Regulation 6.13, Standards of Performance for Existing Storage Vessels for Volatile Organic Compounds, and Regulation 7.12, Standards of Performance for New Storage Vessels for Volatile Organic Compounds, of the Jefferson County portion of the Kentucky SIP, submitted by the Commonwealth on September 5, 2019. The September 5, 2019, SIP revisions update the current SIP-approved version of Regulation 6.13 (Version 7) and Regulation 7.12 (Version 7) to Version 8 for each. EPA is proposing to approve these changes for the reasons discussed above.

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

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

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

On August 31, 2020, at 85 FR 53758, DoD published an advanced notice of proposed rulemaking. The document's heading contained an incorrect Docket number “DARS-2019-0043.” The correct Docket Number is “DARS-2020-0033” and is reflected in the heading of this correction.

Section 118 of the MMPA requires NMFS to place all U.S. commercial fisheries into one of three categories based on the level of incidental mortality and serious injury of marine mammals occurring in each fishery (16 U.S.C. 1387(c)(1)). The classification of a fishery on the LOF determines whether participants in that fishery may be required to comply with certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements. NMFS must reexamine the LOF annually, considering new information in the Marine Mammal Stock Assessment Reports (SARs) and other relevant sources, and publish in the Federal Register any necessary changes to the LOF after notice and opportunity for public comment (16 U.S.C. 1387 (c)(1)(C)).

The definitions for the fishery classification criteria can be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2). The criteria are also summarized here.

The fishery classification criteria consist of a two-tiered, stock-specific approach that first addresses the total impact of all fisheries on each marine mammal stock and then addresses the impact of individual fisheries on each stock. This approach is based on consideration of the rate, in numbers of animals per year, of incidental mortalities and serious injuries of marine mammals due to commercial fishing operations relative to the potential biological removal (PBR) level for each marine mammal stock. The MMPA (16 U.S.C. 1362 (20)) defines the PBR level as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (OSP). This definition can also be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2).

Tier 1: Tier 1 considers the cumulative fishery mortality and serious injury for a particular stock. If the total annual mortality and serious injury of a marine mammal stock, across all fisheries, is less than or equal to 10 percent of the PBR level of the stock, all fisheries interacting with the stock will be placed in Category III (unless those fisheries interact with other stock(s) for which total annual mortality and serious injury is greater than 10 percent of PBR). Otherwise, these fisheries are subject to the next tier (Tier 2) of analysis to determine their classification.

Tier 2: Tier 2 considers fishery-specific mortality and serious injury for a particular stock.

Category I: Annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the PBR level ( i.e., frequent incidental mortality and serious injury of marine mammals).

Category II: Annual mortality and serious injury of a stock in a given fishery is greater than 1 percent and less than 50 percent of the PBR level ( i.e., occasional incidental mortality and serious injury of marine mammals).

Category III: Annual mortality and serious injury of a stock in a given fishery is less than or equal to 1 percent of the PBR level ( i.e., a remote likelihood of or no known incidental mortality and serious injury of marine mammals).

Additional details regarding how the categories were determined are provided in the preamble to the final rule implementing section 118 of the MMPA (60 FR 45086; August 30, 1995).

Because fisheries are classified on a per-stock basis, a fishery may qualify as one category for one marine mammal stock and another category for a different marine mammal stock. A fishery is typically classified on the LOF at its highest level of classification ( e.g., a fishery qualifying for Category III for one marine mammal stock and for Category II for another marine mammal stock will be listed under Category II). Stocks driving a fishery's classification are denoted with a superscript “1” in Tables 1 and 2.

The tier analysis requires a minimum amount of data, and NMFS does not have sufficient data to perform a tier analysis on certain fisheries. Therefore, NMFS has classified certain fisheries by analogy to other fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, or according to factors discussed in the final LOF for 1996 (60 FR 67063; December 28, 1995) and listed in the regulatory definition of a Category II fishery. In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, NMFS will determine whether the incidental mortality or serious injury is “occasional” by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fishermen reports, stranding data, and the species and distribution of marine mammals in the area, or at the discretion of the Assistant Administrator for Fisheries (50 CFR 229.2).

Further, eligible commercial fisheries not specifically identified on the LOF are deemed to be Category II fisheries until the next LOF is published (50 CFR 229.2).

The LOF includes a list of marine mammal species and/or stocks incidentally killed or injured in each commercial fishery. The list of species and/or stocks incidentally killed or injured includes “serious” and “non-serious” documented injuries as described later in the List of Species and/or Stocks Incidentally Killed or Injured in the Pacific Ocean and List of Species and/or Stocks Incidentally Killed or Injured in the Atlantic Ocean, Gulf of Mexico, and Caribbean sections. To determine which species or stocks are included as incidentally killed or injured in a fishery, NMFS annually reviews the information presented in the current SARs and injury determination reports. SARs are brief reports summarizing the status of each stock of marine mammals occurring in waters under U.S. jurisdiction, including information on the identity and geographic range of the stock, population statistics related to abundance, trend, and annual productivity, notable habitat concerns, and estimates of human-caused mortality and serious injury (M/SI) by source. The SARs are based upon the best available scientific information and provide the most current and inclusive information on each stock's PBR level and level of interaction with commercial fishing operations. The best available scientific information used in the SARs and reviewed for the 2021 LOF generally summarizes data from 2013-2017. NMFS also reviews other sources of new information, including injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fishermen self-reports ( i.e., MMPA mortality/injury reports), and anecdotal reports from that time period. In some cases, more recent information may be available and used in the LOF.

For fisheries with observer coverage, species or stocks are generally removed from the list of marine mammal species and/or stocks incidentally killed or injured if no interactions are documented in the 5-year timeframe summarized in that year's LOF. For fisheries with no observer coverage and for observed fisheries with evidence indicating that undocumented interactions may be occurring ( e.g., fishery has low observer coverage and stranding network data include evidence of fisheries interactions that cannot be attributed to a specific fishery) species and stocks may be retained for longer than 5 years. For these fisheries, NMFS will review the other sources of information listed above and use its discretion to decide when it is appropriate to remove a species or stock.

The best available information on the level of observer coverage and the spatial and temporal distribution of observed marine mammal interactions is presented in the SARs. Data obtained from the observer program and observer coverage levels are important tools in estimating the level of marine mammal mortality and serious injury in commercial fishing operations. Starting with the 2005 SARs, each Pacific and Alaska SAR includes an appendix with detailed descriptions of each Category I and II fishery on the LOF, including the observer coverage in those fisheries. For Atlantic fisheries, this information can be found in the LOF Fishery Fact Sheets. The SARs do not provide detailed information on observer coverage in Category III fisheries because, under the MMPA, Category III fisheries are not required to accommodate observers aboard vessels due to the remote likelihood of mortality and serious injury of marine mammals. Fishery information presented in the SARs' appendices and other resources referenced during the tier analysis may include: Level of observer coverage; target species; levels of fishing effort; spatial and temporal distribution of fishing effort; characteristics of fishing gear and operations; management and regulations; and interactions with marine mammals. Copies of the SARs are available on the NMFS Office of Protected Resources website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. Information on observer coverage levels in Category I, II, and III fisheries can be found in the fishery fact sheets on the NMFS Office of Protected Resources' website: https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables . Additional information on observer programs in commercial fisheries can be found on the NMFS National Observer Program's website: https://www.fisheries.noaa.gov/national/fisheries-observers/national-observer-program .

The LOF includes three tables that list all U.S. commercial fisheries by Category. Table 1 lists all of the commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists all of the commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean; and Table 3 lists all U.S. authorized commercial fisheries on the high seas. A fourth table, Table 4, lists all commercial fisheries managed under applicable TRPs or take reduction teams (TRT).

Beginning with the 2009 LOF, NMFS includes high seas fisheries in Table 3 of the LOF, along with the number of valid High Seas Fishing Compliance Act (HSFCA) permits in each fishery. As of 2004, NMFS issues HSFCA permits only for high seas fisheries analyzed in accordance with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The authorized high seas fisheries are broad in scope and encompass multiple specific fisheries identified by gear type. For the purposes of the LOF, the high seas fisheries are subdivided based on gear type ( e.g., trawl, longline, purse seine, gillnet, troll, etc.) to provide more detail on composition of effort within these fisheries. Many fisheries operate in both U.S. waters and on the high seas, creating some overlap between the fisheries listed in Tables 1 and 2 and those in Table 3. In these cases, the high seas component of the fishery is not considered a separate fishery, but an extension of a fishery operating within U.S. waters (listed in Table 1 or 2). NMFS designates those fisheries in Tables 1, 2, and 3 with an asterisk (*) after the fishery's name. The number of HSFCA permits listed in Table 3 for the high seas components of these fisheries operating in U.S. waters does not necessarily represent additional effort that is not accounted for in Tables 1 and 2. Many vessels/participants holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in Tables 1 and 2.

HSFCA permits are valid for 5 years, during which time Fishery Management Plans (FMPs) can change. Therefore, some vessels/participants may possess valid HSFCA permits without the ability to fish under the permit because it was issued for a gear type that is no longer authorized under the most current FMP. For this reason, the number of HSFCA permits displayed in Table 3 is likely higher than the actual U.S. fishing effort on the high seas. For more information on how NMFS classifies high seas fisheries on the LOF, see the preamble text in the final 2009 LOF (73 FR 73032; December 1, 2008). Additional information about HSFCA permits can be found at https://www.fisheries.noaa.gov/permit/high-seas-fishing-permits.

Starting with the 2010 LOF, NMFS developed summary documents, or fishery fact sheets, for each Category I and II fishery on the LOF. These fishery fact sheets provide the full history of each Category I and II fishery, including: When the fishery was added to the LOF; the basis for the fishery's initial classification; classification changes to the fishery; changes to the list of species and/or stocks incidentally killed or injured in the fishery; fishery gear and methods used; observer coverage levels; fishery management and regulation; and applicable TRPs or TRTs, if any. These fishery fact sheets are updated after each final LOF and can be found under “How Do I Find Out if a Specific Fishery is in Category I, II, or III?” on the NMFS Office of Protected Resources' website: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-list-fisheries, linked to the “List of Fisheries Summary” table. NMFS is developing similar fishery fact sheets for each Category III fishery on the LOF. However, due to the large number of Category III fisheries on the LOF and the lack of accessible and detailed information on many of these fisheries, the development of these fishery fact sheets is taking significant time to complete. NMFS began posting Category III fishery fact sheets online with the LOF for 2016.

Owners of vessels or gear engaging in a Category I or II fishery are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 CFR 229.4, to register with NMFS and obtain a marine mammal authorization to lawfully take non-endangered and non-threatened marine mammals incidental to commercial fishing operations. Owners of vessels or gear engaged in a Category III fishery are not required to register with NMFS or obtain a marine mammal authorization.

NMFS has integrated the MMPA registration process, implemented through the Marine Mammal Authorization Program (MMAP), with existing state and Federal fishery license, registration, or permit systems for Category I and II fisheries on the LOF. Participants in these fisheries are automatically registered under the MMAP and are not required to submit registration or renewal materials.

In the Pacific Islands, West Coast, and Alaska regions, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail or with their state or Federal license or permit at the time of issuance or renewal. In the Greater Atlantic and Southeast Regions, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail automatically at the beginning of each calendar year.

Vessel or gear owners who participate in fisheries in these regions and have not received authorization certificates by the beginning of the calendar year, or with renewed fishing licenses, must contact the appropriate NMFS Regional Office (see FOR FURTHER INFORMATION ). Authorization certificates may also be obtained by visiting the MMAP website https://www.fisheries.noaa.gov/national/marine-mammal-protection/ marine-mammal-authorization-program#obtaining-a-marine-mammal-authorization-certificate .

The authorization certificate, or a copy, must be on board the vessel while it is operating in a Category I or II fishery, or for non-vessel fisheries, in the possession of the person in charge of the fishing operation (50 CFR 229.4(e)). Although efforts are made to limit the issuance of authorization certificates to only those vessel or gear owners that participate in Category I or II fisheries, not all state and Federal license or permit systems distinguish between fisheries as classified by the LOF. Therefore, some vessel or gear owners in Category III fisheries may receive authorization certificates even though they are not required for Category III fisheries.

Individuals fishing in Category I and II fisheries for which no state or Federal license or permit is required must register with NMFS by contacting their appropriate Regional Office (see ADDRESSES ).

In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, any vessel owner or operator, or gear owner or operator (in the case of non-vessel fisheries), participating in a fishery listed on the LOF must report to NMFS all incidental mortalities and injuries of marine mammals that occur during commercial fishing operations, regardless of the category in which the fishery is placed (I, II, or III) within 48 hours of the end of the fishing trip or, in the case of non-vessel fisheries, fishing activity. “Injury” is defined in 50 CFR 229.2 as a wound or other physical harm. In addition, any animal that ingests fishing gear or any animal that is released with fishing gear entangling, trailing, or perforating any part of the body is considered injured, regardless of the presence of any wound or other evidence of injury, and must be reported.

Mortality/injury reporting forms and instructions for submitting forms to NMFS can be found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-authorization-program#reporting-a-death-or-injury-of-a-marine-mammal-during-commercial-fishing-operations or by contacting the appropriate regional office (see FOR FURTHER INFORMATION ). Forms may be submitted via any of the following means: (1) Online using the electronic form; (2) emailed as an attachment to nmfs.mireport@noaa.gov ; (3) faxed to the NMFS Office of Protected Resources at 301-713-0376; or (4) mailed to the NMFS Office of Protected Resources (mailing address is provided on the postage-paid form that can be printed from the web address listed above). Reporting requirements and procedures are found in 50 CFR 229.6.

Individuals participating in a Category I or II fishery are required to accommodate an observer aboard their vessel(s) upon request from NMFS. MMPA section 118 states that the Secretary is not required to place an observer on a vessel if the facilities for quartering an observer or performing observer functions are so inadequate or unsafe that the health or safety of the observer or the safe operation of the vessel would be jeopardized; thereby authorizing the exemption of vessels too small to safely accommodate an observer from this requirement. However, U.S. Atlantic Ocean, Caribbean, or Gulf of Mexico large pelagics longline vessels operating in special areas designated by the Pelagic Longline Take Reduction Plan implementing regulations (50 CFR 229.36(d)) will not be exempted from observer requirements, regardless of their size. Observer requirements are found in 50 CFR 229.7.

Table 4 provides a list of fisheries affected by TRPs and TRTs. TRP regulations are found at 50 CFR 229.30 through 229.37. A description of each TRT and copies of each TRP can be found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-take-reduction-plans-and-teams . It is the responsibility of fishery participants to comply with applicable take reduction regulations.

Information regarding the LOF and the MMAP, including registration procedures and forms; current and past LOFs; descriptions of each Category I and II fishery and some Category III fisheries; observer requirements; and marine mammal mortality/injury reporting forms and submittal procedures; may be obtained at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-list-fisheries, or from any NMFS Regional Office at the addresses listed below:

NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930-2298, Attn: Allison Rosner;

NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, Attn: Jessica Powell;

NMFS, West Coast Region, Long Beach Office, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, Attn: Dan Lawson;

NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 9th Street, Juneau, AK 99802, Attn: Suzie Teerlink; or

NMFS, Pacific Islands Regional Office, Protected Resources Division, 1845 Wasp Blvd., Building 176, Honolulu, HI 96818, Attn: Diana Kramer.

NMFS reviewed the marine mammal incidental mortality and serious injury information presented in the SARs for all fisheries to determine whether changes in fishery classification are warranted. The SARs are based on the best scientific information available at the time of preparation, including the level of mortality and serious injury of marine mammals that occurs incidental to commercial fishery operations and the PBR levels of marine mammal stocks. The information contained in the SARs is reviewed by regional Scientific Review Groups (SRGs) representing Alaska, the Pacific (including Hawaii), and the U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs were established by the MMPA to review the science that informs the SARs, and to advise NMFS on marine mammal population status, trends, and stock structure, uncertainties in the science, research needs, and other issues.

NMFS also reviewed other sources of new information, including marine mammal stranding and entanglement data, observer program data, fishermen self-reports, reports to the SRGs, conference papers, FMPs, and ESA documents.

The LOF for 2021 was based on, among other things, stranding data; fishermen self-reports; and SARs, primarily the 2019 SARs, which are based on data from 2013-2017. The SARs referenced in this LOF include: 2016 (82 FR 29039; June 27, 2017), 2018 (84 FR 28489; June 19, 2019), and 2019 (84 FR 65353; November 27, 2019). The SARs are available at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region .

The following summarizes changes to the LOF for 2021, including the classification of fisheries, fisheries listed, the estimated number of vessels/persons in a particular fishery, and the species and/or stocks that are incidentally killed or injured in a particular fishery. NMFS re-classifies one fishery in the LOF for 2021. NMFS also makes changes to the estimated number of vessels/persons and list of species and/or stocks killed or injured in certain fisheries. The classifications and definitions of U.S. commercial fisheries for 2021 are identical to those provided in the LOF for 2020 with the changes discussed below. State and regional abbreviations used in the following paragraphs include: AK (Alaska), CA (California), HI (Hawaii), OR (Oregon), WA (Washington), and WNA (Western North Atlantic).

NMFS proposes to reclassify the AK Bering Sea, Aleutian Islands Pacific cod pot fishery from a Category III to a Category II fishery based on an observed entanglement of a western North Pacific humpback whale in the Pacific cod pot fishery in 2017 (Delean et al., 2020). This entanglement was determined to be a serious injury and resulted in a mean annual estimated M/SI level of 0.2 (6.7 percent of PBR) for AK Bering Sea, Aleutian Islands Pacific cod pot fishery. Therefore, because the estimated M/SI is between 1 and 50 percent of PBR (Tier 2 analysis), NMFS proposes to reclassify the AK Bering Sea, Aleutian Islands Pacific cod pot fishery from a Category III to a Category II fishery.

NMFS proposes to add a superscript “1” to the CA/OR/WA stock of minke whale indicating it is driving the Category II classification of the CA thresher shark/swordfish drift gillnet (>/=14 in mesh) fishery. The CA/OR/WA minke whale mean annual estimated M/SI is 0.1 whales (2.86 percent of PBR) for the CA thresher shark/swordfish drift gillnet (>/=14 in mesh) fishery (Carretta, 2020) and warrants a Category II classification (M/SI is between 1 and 50 percent of PBR) for this fishery.

NMFS proposes to update the estimated number of vessels/persons in the Pacific Ocean (Table 1) as follows:

• HI deep-set longline fishery from 145 to 143 vessels/persons;

• HI shallow-set longline fishery from 18 to 11 vessels/persons;

• American Samoa longline fishery from 15 to 13 vessels/persons; and

• American Samoa bottomfish handline fishery from fewer than 30 to fewer than 20 vessels/persons.

NMFS proposed to add the Aleutian Islands stock of harbor seal to the list of species/stocks incidentally killed or injured in the Category II AK Bering Sea, Aleutian Islands rockfish trawl fishery based on an observed mortality in 2014.

NMFS proposes to add three stocks to the list of species/stocks incidentally killed or injured in the Category II AK Bering Sea, Aleutian Islands Pacific cod pot fishery: (1) Bristol Bay stock of harbor seal based on two observed mortalities in 2014, (2) Western North Pacific stock of humpback whale, and (3) Central North Pacific stock of humpback whale. In 2017, a humpback whale was observed entangled in the State-managed parallel Pacific cod pot fishery. This entanglement occurred in an area of humpback whale stock overlap and consistent with the current Guidelines for Assessing Marine Mammal Stocks (GAMMS), the serious injury was assigned to both the Western North Pacific and Central North Pacific stocks (Delean et al., 2020).

NMFS proposes to add the both Eastern North Pacific Gulf of Alaska, Aleutian Islands, and Bering Sea Transient stock, and West Coast Transient stock, of killer whales to the list of species/stocks incidentally killed or injured in the Category II CA Dungeness crab pot fishery. In 2015, a dead killer whale was reported entangled in CA Dungeness crab pot gear in California. Genetic analysis indicated the animal was a transient whale from either the Eastern North Pacific Gulf of Alaska, Aleutian Islands, and Bering Sea Transient stock, or the West Coast Transient stock (Delean et al., 2020). In 2016, a West Coast transient killer whale was reported entangled in CA Dungeness crab pot gear before self-releasing without serious injury (Delean et al., 2020).

NMFS proposes to add two stocks to the list of species/stocks incidentally killed or injured in the Category III CA squid purse seine fishery: (1) CA/OR/WA stock of Risso's dolphin and (2) U.S. stock of California sea lion. In 2020, NMFS received video footage taken in 2018 depicting evidence of Risso's dolphins and California sea lions incidentally captured in a squid purse seine operating off the coast of California.

NMFS proposes to add the Cook Inlet stock of harbor seal to the list of species/stocks incidentally killed or injured in the Category III AK Gulf of Alaska halibut longline fishery based on an observed mortality in 2015.

NMFS proposes to add the Aleutian Islands stock of harbor seal to the list of species/stocks incidentally killed or injured in the Category III AK Bering Sea, Aleutian Islands Atka mackerel trawl fishery based on an observed mortality in 2016.

NMFS proposes to add the U.S. stock of California sea lion to the list of species/stocks incidentally killed or injured in the Category III WA/OR/CA shrimp trawl fishery. In 2017, a California sea lion was incidentally captured and released (non-serious injury) from a ridgeback prawn trawl net off the coast of California (Carretta et al., 2020).

NMFS proposes to add two stocks to the list of species/stocks incidentally killed or injured in the Category III WA/OR/CA groundfish trawl fishery: (1) California breeding stock of northern elephant seal and (2) CA/OR/WA stock of northern right whale dolphin. Six northern elephant seal mortalities occurred off the coast of California, Oregon and Washington, four in 2015 and two in 2016 (Carretta et al., 2020). In 2016, northern right whale dolphin was incidentally killed in a catcher processor midwater trawl gear off the coast of Oregon (Carretta et al., 2020).

NMFS proposes to add to the Western North Pacific stock of humpback whale to the list of species/stocks incidentally killed or injured in the Category III AK/WA/OR/CA commercial passenger fishing vessel fishery for a ship strike that occurred in 2017. NMFS proposes to remove three stocks from the list of species/stocks incidentally killed or injured in the Category II AK Bering Sea, Aleutian Islands pollock trawl fishery: (1) Alaska stock of ringed seal, (2) Central North Pacific stock of humpback whale and (3) Western North Pacific stock of humpback whale based on no recently observed mortalities or injuries.

NMFS proposes to remove the Alaska stock of ringed seal from the list of species/stocks incidentally killed or injured in the Category II AK Bering Sea, Aleutian Islands Pacific cod longline fishery based on no recently observed mortalities or injuries.

NMFS proposes to remove the Western U.S. stock of Steller sea lion from the list of species/stocks incidentally killed or injured in the Category II AK Gulf of Alaska sablefish longline fishery based on no recently observed mortalities or injuries.

NMFS proposes to remove the Alaska stock of ringed seal from the list of species/stocks incidentally killed or injured in the Category III AK Bering Sea, Aleutian Islands Pacific cod trawl based on no recently observed mortalities or injuries.

NMFS proposes to remove the Alaska stock of harbor seal from the list of species/stocks incidentally killed or injured in the Category III AK Gulf of Alaska flatfish trawl fishery based on no recently observed mortalities or injuries.

NMFS proposes to add a superscript “1” to the following four stocks to indicate they are driving the Category II classification of the Northeast trawl fishery: (1) Western North Atlantic stock of Risso's dolphin, (2) Western North Atlantic stock of long-finned pilot whale, (3) Western North Atlantic offshore stock of bottlenose dolphin, and (4) Western North Atlantic stock of gray seal. The Risso's dolphin mean annual mortality in the Northeast trawl fishery is an estimated 4.2 animals, which represents 1.4 percent of the stock's PBR (303). The long-finned pilot whale mean annual mortality in this fishery is an estimated 15 animals, which represents 4.9 percent of the stock's PBR (306). The bottlenose dolphin mean annual mortality is an estimated 10.4 animals, which represents 2 percent of the stock's PBR (519). The gray seal mean annual mortality is an estimated 16 animals, which represents 1.2 percent of the stock's PBR (1,389). Observer coverage for this fishery from 2013-2017 was 15, 17, 19, 12 and 16 percent, respectively

NMFS proposes to clarify the fishery description of the Category II Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl fishery. NMFS clarifies that this fishery targets shrimp species with various gear types, but mainly utilizes skimmer or otter trawls. These gear types likely entangle marine mammals, particularly bottlenose dolphins, in very similar ways. The common entangling mechanism of these gear types are the “lazy” or “easy” line.

NMFS proposes to clarify the fishery description of the Category I Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery. NMFS clarifies that the fishery does not target bluefin tuna, shortfin mako sharks and other shark species.

NMFS clarifies its response to Comment 14 in the 2020 Final LOF (85 FR 21079; April 16, 2020). In Comment #14, Maine Lobstermen's Association (MLA) notes “there has been only one right whale entangled in Maine gear in April 2002, and the entanglement was determined to be a non-serious injury. There are two additional non-serious injury entanglement cases that involved Maine lobster gear. However, Maine lobster gear was not the primary entangling gear in these cases.” In the 2020 Final LOF, NMFS' response in part to this comment stated: “We recognize that there has only been one confirmed mortality (in 2012) in American lobster gear in the past decade. All other documented lobster interactions were determined to result in non-serious injuries. However, there have been a number of entanglements for which interventions occurred because these entanglements were determined to be resulting in serious injuries (Henry et al., 2019).”

NMFS clarifies part of the response to Comment #14 to state: We recognize there has been only one confirmed mortality (in 2012) in the past decade in U.S. Northern inshore/nearshore trap/pot gear which could be gear from the Northeast/Mid-Atlantic American lobster trap/pot fishery or the Atlantic mixed species trap/pot fishery. All other documented lobster interactions were determined to result in non-serious injuries. However, there have been a number of entanglements for which interventions occurred because these entanglements were determined to be resulting in serious injuries (Henry et al., 2019).

NMFS proposes updates to the estimated number of vessels/persons in the Atlantic Ocean, Gulf of Mexico, and Caribbean (Table 2) as follows:

• Mid-Atlantic gillnet fishery from 3,950 to 4,020 vessels/person;

• Northeast sink gillnet fishery from 3,163 to 4,072 vessels/persons;

• Chesapeake Bay inshore gillnet fishery from 248 to 265 vessels/persons;

• Northeast bottom trawl fishery from 2,238 to 968 vessels/persons;

• Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl fishery from 4,950 to 10,824 vessels/persons;

• Atlantic mixed species trap/pot fishery from 3,332 to 3,493 vessels/persons;

• Mid-Atlantic menhaden purse seine fishery from 19 to 17 vessels/persons;

• Virginia pound net fishery from 26 to 20 vessels/persons;

• Caribbean gillnet fishery from >991 to 127 vessels/persons;

• Caribbean mixed species trap/pot fishery from >501 to 154 vessels/persons;

• Caribbean spiny lobster trap/pot fishery from >197 to 40 vessels/persons; and

• Caribbean haul/beach seine fishery from 15 to 38 vessels/person.

NMFS notes there is variability in the estimated number of vessels/persons in the Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl fishery. This variability is due to multiple permitting agencies, differences in fishery management, and artifacts with available data sets. A complete explanation of the variability is available in the Environmental Impact Statement to Reduce the Incidental Bycatch and Mortality of Sea Turtles in the Southeastern U.S. Shrimp Fisheries (November 4, 2019).

NMFS proposes to add the Mobile Bay, Bonsecour Bay stock of bottlenose dolphin to the list of species/stocks incidentally killed or injured in the Category II Gulf of Mexico gillnet fishery based on one dead, stranded dolphin with gillnet lesions on the rostrum and a sliced ventrum in 2016. Dolphins entangled in gillnet gear often present with diagnostic lesions when stranded that can be identified by trained personnel (Kuiken, 1996, Read and Murray, 2000, Moore and Barco, 2013). In addition, gillnet fishermen will sometimes make a longitudinal slit along the ventral surface of the abdomen before discarding the carcass to reduce floating (Read and Murray, 2000). The Gulf of Mexico gillnet fishery is the only gillnet fishery in the Gulf of Mexico.

NMFS proposes to add the Western North Atlantic offshore stock of bottlenose dolphin to the list of species/stocks incidentally killed or injured in the Category II mid-Atlantic mid-water trawl (including pair trawl) fishery based on a self-reported mortality in 2016.

NMFS proposes to add the Puerto Rico and U.S. Virgin Islands stock of bottlenose dolphin to the list of species/stocks incidentally killed or injured in Category III Caribbean mixed species trap/pot fishery. In 2014, one dolphin was entangled in trap/pot line. The animal was rescued and subsequently died.

Following consultation with the U.S. Fish and Wildlife Service, NMFS proposes to add the Antillean subspecies (Puerto Rico stock) of West Indian manatee to the list of species/stocks incidentally killed or injured in Category III Caribbean haul/beach seine fishery based on two documented entanglements of manatees, one in 2009 and one in 2018.

NMFS proposes to remove the Western North Atlantic offshore stock of bottlenose dolphin from the list of species/stocks incidentally killed or injured in the Category III Gulf of Maine, U.S. mid-Atlantic tuna, shark, swordfish hook-and line/harpoon fishery. From 2013 through 2017, there were no reported or observed mortalities or injuries in this fishery (Hayes et al., in review).

NMFS proposes updates to the estimated number of HSFCA permits for high seas fisheries (Table 3) as follows:

• Atlantic highly migratory species longline fishery from 53 to 45 HSFCA permits;

• Western Pacific pelagic longline (HI deep-set component) fishery from 145 to 143 HSFCA permits;

• South Pacific tuna purse seine fishery from 33 to 26 HSFCA permits;

• South Pacific tuna longline fishery from 2 to 3 HSFCA permits;

• Western Pacific pelagic longline (HI shallow-set component) fishery from 18 to 11 HSFCA permits;

• Atlantic highly migratory species handline/pole and line fishery from 2 to 1 HSFCA permits;

• Pacific highly migratory species handline/pole and line fishery from 41 to 43 HSFCA permits;

• South Pacific albacore troll handline/pole and line fishery from 11 to 10 HSFCA permits;

• South Pacific albacore troll fishery from 17 to 18 HSFCA permits;

• Western Pacific pelagic troll fishery from 5 to 4 HSFCA permits;

• Northwest Atlantic bottom longline fishery from 3 to 2 HSFCA permits;

• Pacific highly migratory species longline fishery from 108 to 105 HSFCA permits; and

• Pacific highly migratory species troll fishery from 119 to 111 HSFCA permits.

The following tables set forth the list of U.S. commercial fisheries according to their classification under section 118 of the MMPA. Table 1 lists commercial fisheries in the Pacific Ocean (including Alaska), Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean, Table 3 lists commercial fisheries on the high seas, and Table 4 lists fisheries affected by TRPs or TRTs.

In Tables 1 and 2, the estimated number of vessels or persons participating in fisheries operating within U.S. waters is expressed in terms of the number of active participants in the fishery, when possible. If this information is not available, the estimated number of vessels or persons licensed for a particular fishery is provided. If no recent information is available on the number of participants, vessels, or persons licensed in a fishery, then the number from the most recent LOF is used for the estimated number of vessels or persons in the fishery. NMFS acknowledges that, in some cases, these estimates may be inflations of actual effort. For example, the State of Hawaii does not issue fishery-specific licenses, and the number of participants reported in the LOF represents the number of commercial marine license holders who reported using a particular fishing gear type/method at least once in a given year, without considering how many times the gear was used. For these fisheries, effort by a single participant is counted the same whether the fisherman used the gear only once or every day. In the Mid-Atlantic and New England fisheries, the numbers represent the potential effort for each fishery, given the multiple gear types for which several state permits may allow. Changes made to Mid-Atlantic and New England fishery participants will not affect observer coverage or bycatch estimates, as observer coverage and bycatch estimates are based on vessel trip reports and landings data. Tables 1 and 2 serve to provide a description of the fishery's potential effort (state and Federal). If NMFS is able to extract more accurate information on the gear types used by state permit holders in the future, the numbers will be updated to reflect this change. For additional information on fishing effort in fisheries found on Table 1 or 2, contact the relevant regional office (contact information included above in Where can I find more information about the LOF and the MMAP? subsection).

For high seas fisheries, Table 3 lists the number of valid HSFCA permits currently held. Although this likely overestimates the number of active participants in many of these fisheries, the number of valid HSFCA permits is the most reliable data on the potential effort in high seas fisheries at this time. As noted previously in this LOF, the number of HSFCA permits listed in Table 3 for the high seas components of fisheries that also operate within U.S. waters does not necessarily represent additional effort that is not accounted for in Tables 1 and 2. Many vessels holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in Tables 1 and 2.

Tables 1, 2, and 3 also list the marine mammal species and/or stocks incidentally killed or injured (seriously or non-seriously) in each fishery based on SARs, injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fishermen self-reports ( i.e., MMAP reports), and anecdotal reports. The best available scientific information included in these reports is based on data through 2017. This list includes all species and/or stocks known to be killed or injured in a given fishery, but also includes species and/or stocks for which there are anecdotal records of a mortality or injury. Additionally, species identified by logbook entries, stranding data, or fishermen self-reports ( i.e., MMAP reports) may not be verified. In Tables 1 and 2, NMFS has designated those species/stocks driving a fishery's classification ( i.e., the fishery is classified based on mortalities and serious injuries of a marine mammal stock that are greater than or equal to 50 percent (Category I), or greater than 1 percent and less than 50 percent (Category II), of a stock's PBR) by a “1” after the stock's name.

In Tables 1 and 2, there are several fisheries classified as Category II that have no recent documented mortalities or serious injuries of marine mammals, or fisheries that did not result in a mortality or serious injury rate greater than 1 percent of a stock's PBR level based on known interactions. NMFS has classified these fisheries by analogy to other Category I or II fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, as discussed in the final LOF for 1996 (60 FR 67063; December 28, 1995), and according to factors listed in the definition of a “Category II fishery” in 50 CFR 229.2 ( i.e., fishing techniques, gear types, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fishermen reports, stranding data, and the species and distribution of marine mammals in the area). NMFS has designated those fisheries listed by analogy in Tables 1 and 2 by adding a “2” after the fishery's name.

There are several fisheries in Tables 1, 2, and 3 in which a portion of the fishing vessels cross the exclusive economic zone (EEZ) boundary and therefore operate both within U.S. waters and on the high seas. These fisheries, though listed separately on Table 1 or 2 and Table 3, are considered the same fisheries on either side of the EEZ boundary. NMFS has designated those fisheries in each table with an asterisk (*) after the fishery's name.