Prior documents in this proceeding: Notice of Hearing issued on February 2, 2020, and published in the February 11, 2020, issue of the Federal Register (85 FR 7669); a Correction to the Notice of Hearing issued on April 9, 2020, and published in the April 10, 2020, issue of the Federal Register (85 FR 20202); and a Recommended Decision issued on July 8, 2020, and published in the August 5, 2020, issue of the Federal Register (85 FR 47305).

This action is governed by the provisions of sections 556 and 557 of title 5 of the United States Code and, therefore, is excluded from the requirements of Executive Orders 12866, 13563, and 13175. Additionally, because this rule does not meet the definition of a significant regulatory action it does not trigger the requirements contained in Executive Order 13771. See the Office of Management and Budget's (OMB) Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

Notice of this rulemaking action was provided to tribal governments through the Department of Agriculture's (USDA) Office of Tribal Relations.

The proposed amendments are based on the record of a public hearing held via videoconference technology on April 20 and 21, 2020. The hearing was held pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act,” and the applicable rules of practice and procedure governing the formulation of marketing agreements and orders (7 CFR part 900). Notice of this hearing was published in the Federal Register on February 11, 2020 (85 FR 7669) followed by a Correction to the Notice of Hearing issued on April 9, 2020, and published in the April 10, 2020, issue of the Federal Register (85 FR 20202). The notice of hearing contained one proposal submitted by the Board and one submitted by USDA.

The amendments proposed by the Board in this decision would add authority for the Board to provide credit for certain market promotion expenses paid by handlers against their annual assessments due under the Order and would establish requirements to effectuate the new authority.

USDA proposed to make any such changes as may be necessary to 7 CFR part 984 (referred to as “the Order”) to conform to any amendment that may be adopted, or to correct minor inconsistencies and typographical errors. As such, USDA is recommending two clarifying changes: One to the proposed language in § 984.46(a) and the other to the proposed regulatory text in § 984.546(e)(5)(iii).

The proposed language in § 984.46(a) would add credit-back authority to the Order. USDA has determined that the language presented in the Notice of Hearing lacked a reference to the proposed, new paragraph (b) and only included a reference to proposed, new paragraph (c). This correction was discussed at the hearing and a witness clarified that proposed, new paragraphs (b) and (c) were both necessary references in the proposed revision to § 984.46(a), and that the omission of the reference to paragraph (b) was an oversight. USDA has revised the proposed language so that both proposed new paragraphs are referenced in the proposed regulatory text of this decision.

USDA is also recommending a clarifying change to the proposed regulatory text in § 984.546(e)(5)(iii). The originally proposed wording of this paragraph by the Board does not adequately state that in all promotional activities, regardless of whether a handler is operating independently or in conjunction with a manufacturer, or whether promoting a product that is solely walnut content or walnuts are a partial ingredient, the words “California Walnuts” must be included in the labeling in order for that activity to qualify as a creditable expenditure. USDA is recommending this change in conformance with witness testimony clarifying the intent of the proposed language. The revised language is included in the proposed regulatory text of this decision.

Upon the basis of evidence introduced at the hearing and the record thereof, the Administrator of AMS on July 8, 2020, filed with the Hearing Clerk, USDA, a Recommended Decision and Opportunity to File Written Exceptions thereto by September 4, 2020. No exceptions were filed.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be unduly or disproportionately burdened. Marketing orders and amendments thereto are unique in that they are normally brought about through group action of essentially small entities for their own benefit.

During the hearing held on April 20 and 21, 2020, interested parties were invited to present evidence on the probable regulatory impact on small businesses of the proposed amendment to the Order. The evidence presented at the hearing shows that the proposed amendment would not have a significant negative economic impact on a substantial number of small agricultural producers or handlers.

Eight grower and handler witnesses testified at the hearing. All eight witnesses were growers and five were also handlers. Four testified that they were small walnut growers according to the Small Business Administration (SBA) definition and four were large. Of the five who were handlers, one was small, and four were large.

All five who were both handlers and growers expressed support for the proposed amendment. Of the three remaining grower witnesses, two stated their support. One grower reported that he had concerns but did not specifically oppose the amendment. Therefore, in their role as growers, 7 out of 8 witnesses supported the amendment, and stated that they expected to see significant benefits from the additional promotion expenditure that would be authorized by the amendment and would not incur additional costs. The benefits and impacts of the proposed amendment are explained in the following three sections: (a) Walnut Industry Background and Overview, (b) Domestic Market Demand for Walnuts, and (c) Estimated Economic Impact of the Proposed Credit-Back Program.

According to the hearing record, there are approximately 4,400 producers and 92 handlers in the production area. Record evidence includes reference to a study showing that the walnut industry contributes 85,000 jobs to the economy, directly and indirectly.

A small handler as defined by the SBA (13 CFR 121.201) is one that grosses less than $30,000,000 annually. A small grower is one that grosses less than $1,000,000 annually.

Record evidence showed that approximately 82 percent of California's walnut handlers (75 out of 92) shipped merchantable walnuts valued under $30 million during the 2018-2019 marketing year and would therefore be considered small handlers according to the SBA definition.

Data in the hearing record from the 2017 Agricultural Census, published by USDA'S National Agricultural Statistics Service (NASS), showed that 86 percent of California farms growing walnuts had walnut sales of less than $1 million.

In an alternative computation using NASS data from the hearing record, the 3-year average crop value (2016-2017 to 2018-2019) was $1.24 billion. Average bearing acres over that same 3-year period were 333,000. Dividing crop value by acres yields a revenue per acre estimate of $3,733. Using these numbers, it would take approximately 268 acres ($1,000,000/$3,733) to yield $1 million in annual walnut sales. The 2017 Agricultural Census data show that 80 percent of walnut farms in 2017 were below 260 acres. Therefore, well over three-fourths of California walnut farms would be considered small businesses according to the SBA definition.

Walnuts bloom in March and April, and the harvest of the earliest varieties begins in the first part of September. As later varieties mature, the harvest continues into November. The crop comes in from the field at about 25 percent moisture and the hulling and drying process typically takes place within 24 hours. The nuts are hulled (removal of the green husks) and dried to about seven percent moisture before delivery to a handler. Some growers have their own hulling and drying equipment and others pay for this service. Drying to seven percent moisture keeps the nuts stable in storage and minimizes deterioration.

Once received by the handler, shelling varieties are shelled and have a shelf-life of approximately 12 months. Unshelled varieties are cleaned, sized, and put into storage. Both shelled and unshelled nuts are shipped and distributed to customers throughout the marketing year. Approximately 75 percent of the California walnut crop is sold as kernels (shelled). Witnesses testified that advances in processing and packaging technologies continue to improve product quality, consistency, and shelf-life.

Weather is one of two main factors driving crop size variability, a significant feature of the walnut market. In some years, climatic conditions may contribute to fungus or other issues that damage the crop and cause nuts to fall prior to harvest. With walnuts grown over a large geographic area, some regions will have better weather than others in any particular year. Crops were larger in 2015 and 2018 and smaller in 2017 and 2019.

The other key variability factor is “alternate bearing” (a natural tendency of several types of tree nuts, in which a large crop is often followed by a small crop). As trees mature, alternate bearing can become more pronounced, and for many years this had a big impact on crop size variability. With recent new plantings, the average age of producing trees in California has dropped. There is less of an alternate bearing tendency with younger trees. Crop sizes have become less variable as younger trees reach bearing age, which typically occurs in the fifth year. Older trees are replaced with varieties with improved quality characteristics to meet changing consumer demand. Newer varieties are generally more productive, contributing to higher yields per acre and greater production.

The hearing record shows that crop size variability, particularly the reduced availability of walnuts in short crop years, continues to contribute to loss of demand, as some buyers of kernels as ingredients in baked goods and other products shift to other tree nuts. These lost market opportunities are additional factors in the industry's interest in product diversification through a credit-back program.

Additional factors that affect current market conditions are the longer-term supply impacts of growers responding to market signals. If producers decide to plant more trees because of strong market prices, such as in the 2011-2014 time period, they receive those trees one or two years later, based on contracts that vary with the type of nursery stock. This time lag, and penalties associated with dropping a planting contract, contribute to continued planting even after market prices drop and growers might otherwise not want to plant. For these reasons, there is a delayed response in planting new trees, and a delayed response in reducing the level of planting when prices and revenue per acre decline, such as in 2015-2018. One witness estimated that the rate of tree planting in recent years is about three times greater than tree removal. Another key factor is that the time from tree planting to bearing nuts is typically five years.

Record evidence shows that walnut production exceeded 600,000 inshell tons every season starting in 2015-2016. Witnesses testified that a key factor in their support of new demand expansion initiatives is their expectation that walnut production is likely to be at or above 700,000 tons within one or two seasons and may exceed 800,000 tons a few years later.

The hearing record shows that farm management decisions made years ago have a significant impact on walnut supply for the coming years, contributing to grower and handler support for major initiatives meant to increase demand, including credit-back.

About two-thirds of the walnut crop is typically exported, and for many years, increasing international demand facilitated expansion of the walnut market. China emerged as a major walnut buyer, but also began large scale planting of walnuts. Prices continued to improve for years, reaching $1.86 per pound ($3,710 per ton) in 2013-2014. As China's new plantings started coming into production, world walnut prices began to decline. By 2017-2018, walnut prices rebounded as Turkey and other Middle Eastern countries took up some of the slack in world market demand, according to the hearing record.

Hearing evidence provided various reasons for the decline in walnut crop value since the peak level of $1.9 billion in 2014-2015. One was reduced export market opportunities. With increased trade barriers from China and India, significant volumes were shifted into other export markets, driving prices downward. Walnut production was also growing in Chile and Europe. The 2018-2019 price fell to $0.65 per pound ($1,300 per ton). With the reduced reliability of the international market, the industry is increasingly looking for ways to increase demand in the U.S. domestic market.

The hearing record shows that most of the grower and handler witnesses stated that a key reason for seeking credit-back authority was the need to increase demand after years of unfavorable marketing conditions. Witnesses stated that a key factor in their support of seeking new ways to increase market demand was several years of deteriorating profitability.

Hearing evidence included data that facilitated comparing farm revenue per acre to cost of production, a key measure of walnut farm profitability. Tables 2 and 3 illustrate the decline in profitability by comparing two four-year periods with very different financial outcomes, 2011 to 2014 and 2015 to 2018.

Table 2 displays cost of production numbers that represent both time periods. University of California Extension conducted two cost of production studies in the 2011-2014 time period, and three studies between 2015 and 2019. Each of the five studies had ranges of production cost figures associated with different yields. To be representative of a typical or average walnut producer, the costs selected to present in column (d) were associated with University of California study yields (column c) closest to the NASS average annual yields for that year (column b).

The average production cost per acre figures for 2011-2014 and 2015-2018 were $3,667 and $5,122, respectively. Those figures were transferred to column (d) of Table 3, and the associated average yields (1.83 and 2.10 tons per acre) appear in column (b) of Table 3.

Table 3 uses the data from Table 2 to show how the walnut farm profitability declined between the two time periods. Producer gross returns per acre for each of the two four-year time periods (column (c)) were computed by multiplying average yield by average price. Subtracting cost of production in column (d) yields the producer net return in column (e).

The two producer net return numbers in column (e) of Table 3 are the key results of this cost and return analysis. Four years of walnut farm profitability, represented by producer net return per acre of $2,264 for 2011-2014, were followed by four years of difficult market conditions (2015-2018), with a negative average net return figure (−$1,458). This analysis provides a numerical estimate that bears out the witness testimony that emphasized that a dramatic downward shift in their economic fortunes in recent years was a major factor in their support for a credit-back program that would leverage additional financial resources for handler-based promotional expenditures oriented toward increasing domestic demand for walnut products.

With reduced export market opportunities, the California industry focused in recent years on ways to expand the domestic market. Record evidence showed that domestic per capita consumption has been approximately one-half pound for many years.

The Board commissioned a consumer survey (with 1,000 respondents) showing that walnut products were reaching 40 percent of U.S. households, indicating significant expansion potential. The study pointed out significant differences among age groups, with 22 percent of those aged 18 to 24 being walnut consumers. Certain age groups are therefore the targets for demand expansion.

The majority of walnuts going into the domestic market are kernels (shelled). One key segment is retail sales, with the main product being bags of raw kernels. Another major segment is industrial—use as an ingredient by food manufacturers in making pastries and other products. Record evidence shows that walnut industry participants consider these two segments to be a narrow group of uses which needs to be expanded.

Witnesses reported that among the Board's strategic objectives, the top priority is retail sector growth, and the snack category in particular. However, current Board marketing programs are generic in nature and focus largely on the traditional form of walnuts: Raw. Raw walnuts as a snack product are important components but expanding retail market development beyond the raw product is considered critical by industry participants, according to the hearing record. New consumption growth will mainly be achieved through new products and forms that appeal to a larger consumer audience, witnesses stated.

According to the hearing record, opportunities for significant walnut demand expansion include snack products such as roasted, salted, glazed, and trail mixes, and other new products such as beverages, spreads and meat alternatives. Witnesses stated that these demand expansion opportunities are best achieved through brand advertising and other handler-based promotional approaches, rather than the generic promotion currently authorized through the Order. Witnesses reported that this is a key reason why adding credit-back authority would be helpful for demand expansion—by providing incentives for handler-based product development and promotion.

A small handler stated that if credit-back authority is added to the marketing order, his firm would likely partner with another company to create a snack product, providing evidence that credit-back authority would help small handlers as well as large ones.

The hearing record included evidence of the estimated impact of the credit-back program on walnut grower total revenue and net return. Table 4 illustrates the impact of handlers taking advantage of the credit-back incentive by increasing their promotional spending. Based on the assumptions shown in the table, walnut growers would see increased total revenue of $21.1 million (row K) and increased net return of $16.8 million (row L). The table shows that there are four computational steps that lead up to the final computations in rows K and L.

The first step is to estimate a typical annual budget of the Board ($25 million in row C) by multiplying the current assessment rate paid to the Board ($0.04) by a number representing an annual walnut production level representative of recent years (625 million hundredweight [cwt]).

If the Board allocated 10 percent of a $25 million annual budget to the credit-back program, the funds available to allocate to pay handlers for eligible promotional spending would be $2.5 million (row E). According to the hearing record, this is a level of credit-back funding supported by growers and handlers.

Handlers would receive 70 percent of the amount they expended on creditable expenditures. If the Board expended its full annual credit-back budget of $2.5 million, the total promotional expenditure would rise to $3.57 million ($2.5/0.70) as shown in row G. The credit-back expenditure would create the incentive for handlers to spend the $2.5 million plus an additional $1.07 million (row H).

The final step is the overall economic impact on the walnut market of the increased spending on advertising and promotion. A 2018 economic analysis of walnut promotion impacts by Dr. Harry Kaiser (cited in the footnote of Table 4) showed that each dollar of walnut advertising and promotional expenditure yielded $19.75 in total revenue and $15.67 in net return to walnut growers (rows I and J). Multiplying $1.07 million by those two promotional impact-per-dollar figures yields the estimated increase in total revenue per year and net return per year of $21.16 million and $16.79 million, respectively, shown in rows K and L. Net return is what is returned to walnut growers after accounting for the cost of the promotion program.

Record evidence indicates that all industry members, growers and handlers, would benefit proportionally from an increase in demand brought about due to the credit-back program. The credit-back program would be funded by allocating to the credit-back program a portion of the total Board promotional budget, funded at the current assessment rate. With no increase in the Board's assessment rate, there would be no increased costs to growers or handlers.

All handlers, large and small, would benefit proportionally by participating in the credit-back program. Handlers will participate only if they decide that they will benefit, and would incur no costs if they choose not to participate. No handler can benefit disproportionately from the program, since a handler's maximum credit-back payment from the Board is based on that handler's share of total industry acquisitions from the prior year, according to the hearing record. As cited above, a small handler testified that their smaller size would not be a hindrance to using the credit-back program, because his walnut processing operation could develop a new product in partnership with another firm.

Consumers would benefit from product diversification of the walnut market. They could choose to buy any of the new products that become available, thereby adding new foods to their diet, at prices that fit within their food budget.

The record shows that the proposal to add authority to establish the credit-back program would, in itself, have no significant economic impact on producers or handlers of any size. If the proposed authority and the accompanying requirements were implemented, both benefits and costs could be anticipated. Costs of complying with the new program could include handler maintenance and delivery of receipts and documentation for reimbursement of creditable expenditures, but these would be minimal and are considered standard business practices. For the reasons described above, it is determined that the benefits of adding authority for a credit-back program would outweigh the potential costs of future implementation.

USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule. These amendments are intended to improve the operation and administration of the Order and to assist in the marketing of California walnuts.

Board meetings regarding these proposals, as well as the hearing date and location, were widely publicized throughout the California walnut industry, and all interested persons were invited to attend the meetings and the hearing to participate in Board deliberations on all issues. All Board meetings and the hearing were public forums, and all entities, both large and small, were able to express views on these issues. Interested persons are invited to submit information on the regulatory impacts of this action on small businesses.

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

Current information collection requirements that are part of the Federal marketing order for California walnuts (7 CFR part 984) are approved under OMB No. 0581-0178 Vegetables and Specialty Crops. No changes in these requirements are anticipated as a result of this proceeding. Should any such changes become necessary, they would be submitted to OMB for approval.

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the Government Paperwork Elimination Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

The amendments to the Order proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have retroactive effect. If adopted, the proposed amendments would not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this proposal.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of entry of the ruling.

The findings and conclusions, rulings, and general findings and determinations included in the Recommended Decision set forth in the August 5, 2020, issue of the Federal Register (85 FR 47305) are hereby approved and adopted.

Annexed hereto and made a part hereof is the document entitled “Order Amending the Order Regulating the Handling of Walnuts Grown in California.” This document has been decided upon as the detailed and appropriate means of effectuating the foregoing findings and conclusions.

It is hereby ordered, That this entire decision be published in the Federal Register .

It is hereby directed that a referendum be conducted in accordance with the procedure for the conduct of referenda (7 CFR 900.400 through 900.407) to determine whether the annexed order amending the order regulating the handling of walnuts grown in California is approved or favored by growers, as defined under the terms of the order, who during the representative period were engaged in the production of walnuts in the production area.

The representative period for the conduct of such referendum is hereby determined to be September 1, 2018, through August 31, 2019.

The agents of the Secretary to conduct such referendum are hereby designated to be Terry Vawter and Jeffery Rymer, California Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; telephone: 559-487-5901; or fax: 559-487-5906 or Email: Terry.Vawter@usda.gov or Jefferym.Rymer@usda.gov, respectively.

The findings and determinations hereinafter set forth are supplementary to the findings and determinations that were previously made in connection with the issuance of the marketing order; and all said previous findings and determinations are hereby ratified and affirmed, except insofar as such findings and determinations may be in conflict with the findings and determinations set forth herein.

Pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), and the applicable rules of practice and procedure effective thereunder (7 CFR part 900), a public hearing was held upon proposed further amendment of Marketing Order No. 984, regulating the handling of walnuts grown in California.

Upon the basis of the record, it is found that:

(1) The marketing order, as amended, and as hereby proposed to be further amended, and all of the terms and conditions thereof, would tend to effectuate the declared policy of the Act;

(2) The marketing order, as amended, and as hereby proposed to be further amended, regulates the handling of walnuts grown in the production area in the same manner as, and is applicable only to, persons in the respective classes of commercial and industrial activity specified in the marketing order upon which a hearing has been held;

(3) The marketing order, as amended, and as hereby proposed to be further amended, is limited in its application to the smallest regional production area that is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several orders applicable to subdivisions of the production area would not effectively carry out the declared policy of the Act;

(4) The marketing order, as amended, and as hereby proposed to be further amended, prescribes, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of walnuts grown in California; and

(5) All handling of walnuts grown in the production area as defined in the marketing order is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.

It is therefore ordered, that on and after the effective date hereof, all handling of walnuts grown in California shall be in conformity to, and in compliance with, the terms and conditions of the said order as hereby proposed to be amended as follows:

The provisions of the proposed marketing order amending the order contained in the Recommended Decision issued on July 8, 2020, and published in the August 5, 2020, issue of the Federal Register (85 FR 47305) will be and are the terms and provisions of this order amending the order and are set forth in full herein.

For the reasons set out in the preamble, 7 CFR part 982 is proposed to be amended as follows:

The NRC received and docketed a PRM  1 dated January 15, 2015, submitted by Michael D. Tschiltz, on behalf of NEI. On March 27, 2015, the NRC published a notice of docketing in the Federal Register (80 FR 16308). The NRC held a public meeting on September 16, 2015, to gain further understanding of the scope and bases for the PRM. The meeting summary  2 is publicly available.

The petitioner asked the NRC to amend its regulations to clarify and extend the applicability of section 50.69 of title 10 of the Code of Federal Regulations (10 CFR), “Risk-informed categorization and treatment of structures, systems and components (SSCs) for nuclear power reactors.” The regulations in § 50.69 allow nuclear power plant licensees and certain applicants to seek NRC approval to implement the § 50.69 requirements as an alternative to compliance with the requirements for Risk-Informed Safety Class (RISC)-3 and RISC-4 SSCs listed in § 50.69(b)(1)(i)-(xi). Currently, the applicability provisions in § 50.69 allow holders of a nuclear power plant license under 10 CFR parts 50, “Domestic Licensing of Production and Utilization Facilities,” and 54, “Requirements for Renewal of Operating Licenses for Nuclear Power Plants,” and certain applicants under 10 CFR parts 50 and 52, “Licenses, Certifications, and Approvals for Nuclear Power Plants,” to voluntarily request the NRC's review and approval to implement the provisions in § 50.69. However, because the “applicability” provisions in § 50.69(b) do not include COL holders under 10 CFR part 52, they cannot request the NRC's review and approval to implement the provisions in § 50.69. The petitioner proposed a change to § 50.69 to allow COL holders to use the voluntary provisions of this regulation.

The petitioner asserted that preventing COL holders from using the provisions in § 50.69 is inappropriate and provided the following arguments in support of its position:

• A COL applicant that requests and receives NRC approval to implement the provisions in § 50.69 could later become a COL holder and, therefore, would no longer be allowed to use the previous approval.

• As written, the regulation denies applicability to plants possessing COLs for the life of the plant. A plant that currently holds a COL and that has been in operation for 15 years is in all practical matters no different than the current operating fleet, which, under the current rule language, can implement the provisions in § 50.69.

• Combined license holders must comply with the regulations in § 50.71(h)(1) and (2), which require COL holders to produce and maintain probabilistic risk assessments (PRAs) using NRC-endorsed PRA consensus standards. Therefore, under the NRC's existing rules, COL holders will possess the necessary PRA infrastructure to implement the provisions in § 50.69 effectively. In particular, these plants will have developed Level 1 and Level 2 PRAs before fuel load. These PRAs will have covered those initiating events and modes for which NRC-endorsed consensus standards exist. Additionally, the NRC requires these plants to periodically (every 4 years) maintain and upgrade the PRA consistent with NRC-endorsed consensus standards until the permanent cessation of operations under § 52.110(a).

The NRC agrees that the PRM has technical merit. The NRC will consider the issue raised in the PRM in its rulemaking process. The COL holders under 10 CFR part 52 currently cannot use the provisions in § 50.69 to risk-inform the categorization of SSCs and change the treatment of those SSCs.

The NRC did not receive public comment about the absence of an applicability provision in § 50.69 for COL holders in the 2003 proposed rule (68 FR 26511; May 16, 2003). The final provisions in § 50.69 issued on November 22, 2004 (69 FR 68008) retained this feature of the proposed rule. In 2007, the NRC issued a final rule to revise 10 CFR part 52 (72 FR 49352; August 28, 2007) and left the applicability provisions unchanged. Therefore, COL holders currently cannot request the NRC's review and approval to implement the provisions in § 50.69.

Upon further consideration, the NRC agrees with the petitioner that a nuclear power plant that meets the requirements of § 50.69, whether licensed under part 50 or part 52, should have the opportunity to implement the provisions in § 50.69. The NRC agrees that all COL holders that have developed a PRA under § 50.71(h) should possess the necessary PRA infrastructure to support an application for a license amendment to use the provisions in § 50.69.

In 2015, the Commission directed the staff to revise the regulations in 10 CFR part 50 for new power reactor applications so that they align with the requirements in 10 CFR part 52. In addition, the staff was directed to revise the regulations in 10 CFR part 52 to reflect lessons learned from recent new reactor licensing activities. 3 The NRC began this rulemaking in fiscal year 2019.

Therefore, the NRC will consider the issue raised in PRM-50-110 in the “Incorporation of Lessons Learned From New Reactor Licensing Process” (Parts 50 and 52 Licensing Process Alignment) rulemaking.

The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.

For the reasons cited in this document, the NRC will consider the issue raised in the PRM in an ongoing rulemaking process.

The NRC tracks the status of PRMs on its website at https:/www.nrc.gov/about-nrc/regulatory/rulemaking/rules-petitions.html. In addition, the Federal rulemaking website ( https://www.regulations.gov) allows you to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) Navigate to the docket folder (NRC-2009-0196); (2) click the “Email Alert” link; and (3) enter your email address and select how frequently you would like to receive emails (daily, weekly, or monthly). As in all rulemakings, the NRC will solicit and consider public comments during the proposed rule phase of the rulemaking, before determining the approach that will become the basis for the final rule. Publication of this document in the Federal Register closes Docket ID NRC-2015-0028 for PRM-50-110.

Discussion

The FAA issued an NPRM that proposed to amend 14 CFR part 39 by adding an AD that would apply to the specified products. The NPRM was published in the Federal Register on August 8, 2019 (84 FR 38887). The NPRM was prompted by reports of dual FMC cold starts during a critical flight phase such as takeoff and approach. The NPRM proposed to require an inspection to determine if certain software is installed, installation of FMC OPS and a software configuration check, and applicable concurrent requirements. The proposed actions were intended to address dual FMC cold starts, which can result in a loss of flight critical data from flight deck displays during a high workload phase of flight. This condition, if not addressed, could reduce the flightcrew's situational awareness, resulting in a loss of continued safe flight and landing.

Since issuance of the NPRM, the manufacturer discovered that the installation of new NG FMC BP 4.0 software, as proposed in the NPRM, does not resolve the unsafe condition identified in the NPRM, and the manufacturer is developing new software to resolve the unsafe condition. In light of these changes, the FAA is considering further rulemaking.

Withdrawal of the NPRM constitutes only such action and does not preclude the FAA from further rulemaking on this issue, nor does it commit the FAA to any course of action in the future.

Upon further consideration, the FAA has determined that the NPRM does not adequately address the identified unsafe condition. Accordingly, the NPRM is withdrawn.

Since this action only withdraws an NPRM, it is neither a proposed nor a final rule. This action therefore is not covered under Executive Order 12866, the Regulatory Flexibility Act, or DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979).

Accordingly, the notice of proposed rulemaking, Docket No. FAA-2019-0576, which was published in the Federal Register on August 8, 2019 (84 FR 38887), is withdrawn.

CSX Transportation requested the Coast Guard consider allowing the Seaboard Systems Railroad Bridge 33 CFR 117.297, across the Little Manatee River to be remotely operated. The name of the bridge would be updated to reflect the current bridge owner and will be referred to as the CSX Railroad Bridge. The Seaboard System Railroad Bridge across the Little Manatee River, mile 2.4, at Ruskin, Hillsborough County, FL is a swing bridge. The bridge is currently maintained in the closed position with a three hour advance notice for an opening. It has a vertical clearance of 5 feet at mean high water in the closed position and a horizontal clearance of 35 feet.

The Coast Guard proposes to modify the operating schedule of the Seaboard System Railroad Bridge across Little Manatee River, mile 2.4, in Ruskin, Hillsborough County, FL. This proposed regulation would change the name of the bridge and allow the bridge to be remotely monitored and operated. This proposal will allow vessels to pass through the bridge while taking into account the reasonable needs of other modes of transportation.

We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on 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 the ability that vessels can still transit the bridge given advanced notice. Vessels that can transit under the bridge without an opening may do so at any time.

The Regulatory Flexibility Act of 1980 (RFA), 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 bridge 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 contact 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 call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

On September 16, 2011, the AIA was enacted into law (Pub. L. 112-29, 125 Stat. 284 (2011)), and in 2012, the Office implemented rules to govern Office trial practice for AIA trials, including IPR, PGR, CBM, 1 and derivation proceedings pursuant to 35 U.S.C. 135, 316, and 326 and AIA 18(d)(2). See Rules of Practice for Trials Before the Patent Trial and Appeal Board and Judicial Review of Patent Trial and Appeal Board Decisions, 77 FR 48612 (Aug. 14, 2012); Changes to Implement Inter Partes Review Proceedings, Post-Grant Review Proceedings, and Transitional Program for Covered Business Method Patents, 77 FR 48680 (Aug. 14, 2012); Transitional Program for Covered Business Method Patents—Definitions of Covered Business Method Patent and Technological Invention, 77 FR 48734 (Aug. 14, 2012). Additionally, the Office published a Patent Trial Practice Guide to advise the public on the general framework of the rules and proceedings, including the structure and times for taking action in each of the new proceedings. See Office Patent Trial Practice Guide, 77 FR 48756 (Aug. 14, 2012). Since then, the Office has designated more than 40 decisions in such proceedings as precedential or informative, and it has issued several updates to the Trial Practice Guide that were subsequently consolidated. See Patent Trial and Appeal Board Consolidated Trial Practice Guide (Nov. 2019) (Consolidated Trial Practice Guide or CTPG), available at https://www.uspto.gov/TrialPracticeGuideConsolidated. In its ongoing effort to achieve consistency and fairness, the Office is considering promulgating additional rules based on this broad experience as it relates to considerations for instituting AIA trials.

By way of background, the Patent Trial and Appeal Board (PTAB or Board) institutes a trial on behalf of the Director. 37 CFR 42.4(a); 35 U.S.C. 314. In deciding whether to institute the trial, the Board considers, at a minimum, whether a petitioner has satisfied the relevant statutory institution standard. Even in cases where a petitioner has satisfied the institution standard, the statutes, including 35 U.S.C. 314(a) and 324(a), provide the Director with discretion to deny a petition. See, e.g., 35 U.S.C. 314(a) (“The Director may not authorize an inter partes review to be instituted unless . . .”). The Supreme Court held that “the agency's decision to deny a petition is a matter committed to the Patent Office's discretion,” and that there is “no mandate to institute review.” Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2140 (2016).

The Director also is given broad discretion under 35 U.S.C. 315(d) and 325(d) to determine the manner in which “multiple proceedings” before the Office involving the same patent may proceed. Specifically, “the Director may determine the manner in which the . . . other proceeding or matter may proceed, including providing for stay, transfer, consolidation, or termination of any such matter or proceeding.” Id.

Under 35 U.S.C. 316(a) and 326(a), the Director shall prescribe regulations for certain enumerated aspects of AIA proceedings, and under 35 U.S.C. 2(b)(2)(A), the Director may establish regulations that “shall govern the conduct of proceedings in the Office.” Further, 35 U.S.C. 316(b) and 326(b) require the Director to “consider the effect of any such regulation [under this section] on the economy, the integrity of the patent system, the efficient administration of the Office, and the ability of the Office to timely complete proceedings instituted under this chapter.”

Congress designed the AIA “to establish a more efficient and streamlined patent system that will improve patent quality and limit unnecessary and counterproductive litigation costs.” H.R. Rep. No. 112-98, pt. 1, at 40 (2011), 2011 U.S.C.C.A.N. 67, 69; see also S. Rep. No. 110-259, at 20 (2008). At the same time, Congress instructed that “the changes made by [the AIA] are not to be used as tools for harassment or a means to prevent market entry through repeated litigation and administrative attacks on the validity of a patent. Doing so would frustrate the purpose of the section as providing quick and cost effective alternatives to litigation.” H.R. Rep. No. 112-98, at 48 (2011).

To achieve the appropriate balance envisioned by Congress, the Office has taken into account a variety of factors when determining whether to institute a proceeding. In so doing, the Office has also taken into account the considerations identified in 35 U.S.C. 316(b) and 326(b): The economy, the integrity of the patent system, the efficient administration of the Office, and the ability of the Office to timely complete instituted proceedings. The Office has also worked to address the emergence of repeated administrative attacks on the patentability of the same patent claims and the harassment of patent owners.

The case-specific analysis the Office has developed attempt to balance Congress's intent for AIA proceedings to be “quick and cost effective alternatives to litigation,” on the one hand, with “the importance of quiet title to patent owners to ensure continued investment resources,” on the other hand. H.R. Rep. No. 112-98, pt. 1, at 48 (2011). For example, the Office has set forth, in various precedential PTAB decisions, various factors used in its case-specific analysis. See, e.g., General Plastic Co., Ltd. v. Canon Kabushiki Kaisha, IPR2016-01357, 2017 WL 3917706, at *7 (PTAB Sept. 6, 2017) (precedential) (providing a nonexclusive list of factors that the Board considers when evaluating discretionary denial of follow-on petitions, also known as “serial” petitions, under 35 U.S.C. 314(a)); Valve Corp. v. Elec. Scripting Prods., Inc., IPR2019-00062, -00063, -00084, 2019 WL 1490575 (PTAB Apr. 2, 2019) (precedential) ( Valve I ) (explaining that the Board considers any relationship between petitioners when weighing the General Plastic factors); Valve Corp. v. Elec. Scripting Prods., Inc., IPR2019-00064, -00065, -00085, 2019 WL 1965688 (PTAB May 1, 2019) ( Valve II ) (applying the first General Plastic factor to a petitioner that joined a previously instituted IPR proceeding and, therefore, is considered to have previously filed a petition directed to the same claims of the same patent); Apple Inc. v. Fintiv, Inc., IPR2020-00019, 2020 WL 2126495 (PTAB Mar. 20, 2020) (precedential) (summarizing the factors the Office has considered when a patent owner argues for discretionary denial under NHK Spring Co., Ltd. v. Intri-Plex Techs., Inc., IPR2018-00752, 2018 WL 4373643 (PTAB Sept. 12, 2018) (precedential) due to an earlier trial date).

These same considerations are also represented in various informative decisions. See, e.g., Sand Revolution II, LLC v. Continental Intermodal Group-Trucking LLC, 2020 WL 3273334 (PTAB June 16, 2020) (informative) (applying the factors set forth in the precedential Fintiv decision to grant institution); Apple Inc. v. Fintiv, Inc., IPR2020-00019, 2020 WL 2486683 (PTAB May 13, 2020) (informative) (applying the factors set forth in the precedential Fintiv decision to deny institution); Adaptics Ltd. v. Perfect Co., IPR2018-01596, 2019 WL 1084284 (PTAB Mar. 6, 2019) (informative) (applying discretion to deny a petition where the petition lacks particularity in identifying the asserted challenges that resulted in voluminous and excessive grounds); Deeper, UAB v. Vexilar, Inc., IPR2018-01310, 2019 WL 328753 (PTAB Jan. 24, 2019) (informative) (applying discretion to deny a petition where the petitioner demonstrates a reasonable likelihood of prevailing only as to 2 claims out of 23 claims challenged and only as to 1 of 4 asserted grounds of unpatentability); Chevron Oronite Co. v. Infineum USA L.P., IPR2018-00923, 2018 WL 5862245 (PTAB Nov. 7, 2018) (informative) (applying discretion to deny a petition where the petitioner demonstrates a reasonable likelihood of prevailing only as to 2 claims out of 20 claims challenged).

As the Office explained in the Consolidated Trial Practice Guide, consideration of this case-specific analysis is “part of a balanced assessment of all relevant circumstances in the case, including the merits.” CTPG at 58 (discussing consideration of the merits as part of a balanced assessment of the General Plastic factors); see also Fintiv, 2020 WL 2126495, at *2-3, 6-7 (discussing consideration of the merits in the context of discretionary denial).

Informed by similar considerations, the Office has also provided guidance on the number of petitions typically required by a petitioner to challenge the same patent at or about the same time. See CTPG 59-61 (first introduced in Trial Practice Guide Update (July 2019) at 26-28, available at https://www.uspto.gov/TrialPracticeGuide3 (requiring petitioners to rank multiple petitions filed at the same time that seek to challenge the same patent)). The Board explained that, based on its prior experience, “one petition should be sufficient to challenge the claims of a patent in most situations.” Id. at 59. In some cases, depending on circumstances, “two petitions by a petitioner may be needed, although this should be rare.” Id. The Board, however, concluded that it is “unlikely that circumstances will arise where three or more petitions by a petitioner with respect to a particular patent will be appropriate.” Id.

The Office is now considering promulgating rules based on the framework of the guidance provided in these decisions and in the Consolidated Trial Practice Guide, or a modified framework as appropriate, based on public input and further analysis. These considerations form the impetus for this request for comments and the questions presented below.

In General Plastic, the Board recognized the goals of the AIA and also “recognize[d] the potential for abuse of the review process by repeated attacks on patents.” 2017 WL 3917706, at *7 (citing H.R. Rep. No. 112-98, pt. 1, at 48 (2011)). To aid the Board's assessment of “the potential impacts on both the efficiency of the IPR process and the fundamental fairness of the process for all parties,” General Plastic enumerated a number of nonexclusive factors that the Board will consider in a case-specific analysis for exercising discretion on instituting an IPR, especially as to “follow-on” or “serial” petitions challenging the same patent as challenged previously in an IPR, PGR, or CBM proceeding. Id. at *8. The General Plastic nonexclusive factors include: (1) Whether the same petitioner previously filed a petition directed to the same claims of the same patent; (2) whether, at the time of filing of the first petition, the petitioner knew of the prior art asserted in the second petition or should have known of it; (3) whether, at the time of filing of the second petition, the petitioner had already received a patent owner's preliminary response to the first petition or received the Board's decision on whether to institute review in the first petition; (4) the length of time that elapsed between the time the petitioner learned of the prior art asserted in the second petition and the filing of the second petition; (5) whether the petitioner provides an adequate explanation for the time elapsed between the filings of multiple petitions directed to the same claims of the same patent; (6) the finite resources of the Board; and (7) the requirement under 35 U.S.C. 316(a)(11) to issue a final determination not later than one year after the date on which the Director notices institution of review. Id. at *7.

Since General Plastic, the Office has explained that the application of the first General Plastic factor is not limited to instances where multiple petitions are filed by the same petitioner. For instance, in Valve I, the Board denied institution when a party filed follow-on petitions for IPR after the denial of an earlier IPR request of the same claims filed by the party's co-defendant. Valve I, 2019 WL 1490575, at *4-5. The Board held that when different petitioners challenge the same patent, the Board considers the relationship, if any, between those petitioners when weighing the General Plastic factors. Id. The Office also explained, in Valve II, that the first General Plastic factor applies to a later petitioner when this petitioner previously joined an instituted IPR proceeding and, therefore, was considered to have previously filed a petition directed to the same claims of the same patent. Valve II, 2019 WL 1965688, at *4-5. The relationships between petitioners in follow-on petition scenarios depend on the circumstances of the follow-on petition scenario.

General Plastic also includes additional factors that are not limited to the follow-on petitions but are more generally directed toward the timely completion of proceedings and efficient administration of the Office. Under SAS, if the Board decides to institute based on one claim, it must institute on all claims and grounds set forth in the petition. SAS, 138 S. Ct. at 1359-60; Adidas AG v. Nike, Inc., 894 F.3d 1256, 1258 (Fed. Cir. 2018) (“[e]qual treatment of claims and grounds for institution purposes has pervasive support in SAS” ). As explained in the Consolidated Trial Practice Guide, however, the Board may decide not to institute the petition if it determines that the petition meets the standards for institution in relation to fewer than all the challenges presented, even when the petition includes at least one claim subject to a challenge that otherwise meets the criteria for institution. CTPG at 64 (discussing Deeper and Chevron ). Likewise, the Board may decide not to institute where deficiencies in the petition, such as a lack of particularity in identifying the asserted challenges, result in voluminous and excessive grounds. See Adaptics, 2019 WL 1084284, at *7-10.

As explained in the Consolidated Trial Practice Guide in relation to parallel petitions challenging the same patent at or about the same time, in the Board's experience, one petition should be sufficient for a petitioner to challenge the claims of a patent in most situations. CTPG at 59. The Office has explained that “[t]wo or more petitions filed against the same patent at or about the same time ( e.g., before the first preliminary response by a patent owner) may place a substantial and unnecessary burden on the Board and the patent owner and could raise fairness, timing, and efficiency concerns.” Id. The Office has also explained that “multiple petitions by a petitioner are not necessary in the vast majority of cases.” Id. (“To date, a substantial majority of patents have been challenged with a single petition.”).

Nonetheless, the Office explained that circumstances may exist in which more than one petition may be necessary, including, for example, when a patent owner has asserted a large number of claims in litigation or when there is a dispute about priority date, thereby requiring unpatentability challenges under multiple prior art references. Id. “In such cases two petitions by a petitioner may be needed, although this should be rare.” Id. The Office also explained that “based on prior experience, the Board finds it unlikely that circumstances will arise where three or more petitions by a petitioner with respect to a particular patent will be appropriate.” Id. To aid the Board in this case-specific analysis for determining whether more than one petition is necessary, the Office directed the parties to address the issue in their pre-institution filings. Id. at 59-60.

The Consolidated Trial Practice Guide explains that events in other proceedings related to the same patent, either at the Office, in U.S. district courts or at the U.S. International Trade Commission (ITC), may also impact the institution decision. CTPG at 58. In a prior precedential decision, for example, the Board found that the advanced state of a district court proceeding was a factor weighing in favor of not instituting under 35 U.S.C. 314(a), in addition to arguments under 35 U.S.C. 325(d). NHK, 2018 WL 4373643, at *7. Such advanced proceedings in other tribunals have the potential to undermine the intent that AIA proceedings be quick and cost-effective alternatives, and instead may add costs, lengthen the proceedings, and risk coordinate branches of the Government having different outcomes on similar facts.

Since designating NHK as precedential, the Board has applied nonexclusive factors that it considers in a case-specific analysis when a patent owner raises an argument for discretionary denial based on a parallel proceeding in another tribunal, such as a U.S. district court. The Board recently summarized these factors in Fintiv : (1) Whether the court granted a stay or evidence exists that one may be granted if a proceeding is instituted; (2) proximity of the court's trial date to the Board's projected statutory deadline for a final written decision; (3) investment in the parallel proceeding by the court and the parties; (4) overlap between the issues raised in the petition and in the parallel proceeding; (5) whether the petitioner and the defendant in the parallel proceeding are the same party; and (6) other circumstances that impact the Board's exercise of discretion, including the merits. Fintiv, 2020 WL 2126495, at *2-3. The Board explained that “[t]hese factors relate to whether efficiency, fairness, and the merits support the exercise of authority to deny institution in view of an earlier trial date in the parallel proceeding.” Id. at *3.

The Office already has received input from stakeholders on the Office policies discussed above and on use of the Office's discretion in institution of an AIA trial. The most prevalent input that the Office has received from stakeholders is that the case-specific analysis outlined in the foregoing precedential opinions and the Consolidated Trial Practice Guide achieves the appropriate balance and reduces gamesmanship. Among other things, stakeholders have indicated that the Office's use of discretion as outlined above helps to ensure that (a) AIA proceedings do not create excessive costs and uncertainty for the patent owner and the system, while (b) meritorious challenges by petitioners can be maintained.

However, some stakeholders have proposed that the Office adopt a bright-line rule that it should use its discretion to preclude claims from being subject to more than one AIA proceeding, regardless of the circumstances. In other words, once a trial is instituted against certain claims, this proposal would preclude the Office from instituting further AIA trials that include challenges by any party to any of the same claims if the patent owner opposes institution.

Other stakeholders have proposed that the Office should only permit more than one AIA proceeding if the follow-on petitioner is unrelated to the prior petitioner. A petitioner, a petitioner's real parties in interest, and privies of a petitioner would be limited to filing a single petition for a challenged claim, regardless of the circumstances.

By contrast, the Office has received input from some stakeholders proposing that the Office adopt a bright-line approach that there should be no limits on the number of petitions that can be filed or the number of AIA trials that can be instituted against the claims of a patent, so long as the petition complies with statutory timing requirements, e.g., the one-year bar under 35 U.S.C. 315(b), and meets the particular institution threshold of showing that at least one claim of the patent is unpatentable.

The Office has also received input from stakeholders proposing that the Office adopt a bright-line rule that precludes institution of an AIA trial against challenged claims if the patent owner opposes institution and any of the challenged claims are or have been asserted against the petitioner, the petitioner's real party in interest, or a privy of the petitioner in a district court or ITC action that is unlikely to be stayed.

By contrast, the Office also has received input from other stakeholders proposing that the Office adopt a bright-line rule to eliminate any consideration of the state of any district court or ITC actions involving the challenged patent, so long as the petition complies with statutory timing requirements and meets the particular institution threshold of showing that at least one claim of the patent is unpatentable.

In light of the various contrasting views from some stakeholders, the Office solicits further public input on what should be considered as part of a balanced assessment of the relevant circumstances when exercising its discretion to institute an AIA trial.

The USPTO seeks comments on considerations for instituting AIA trials as it relates to serial and parallel AIA petitions, as well as proceedings in other tribunals. The questions enumerated below are a preliminary guide to aid the USPTO in collecting relevant information to assist in modifications, if any, to its current practices, and in the development of any possible rulemaking on this subject. The questions should not be taken as an indication that the USPTO has taken a position or is predisposed to any particular views. The USPTO welcomes comments from the public on any issues believed to be relevant to these topics, and is particularly interested in answers to the following questions:

1. Should the Office promulgate a rule with a case-specific analysis, such as generally outlined in General Plastic, Valve I, Valve II and their progeny, for deciding whether to institute a petition on claims that have previously been challenged in another petition?

2. Alternatively, in deciding whether to institute a petition, should the Office (a) altogether disregard whether the claims have previously been challenged in another petition, or (b) altogether decline to institute if the claims have previously been challenged in another petition?

3. Should the Office promulgate a rule with a case-specific analysis, such as generally outlined in the Consolidated Trial Practice Guide, for deciding whether to institute more than one petition filed at or about the same time on the same patent?

4. Alternatively, in deciding whether to institute more than one petition filed at or about the same time on the same patent, should the Office (a) altogether disregard the number of petitions filed, or (b) altogether decline to institute on more than one petition?

5. Should the Office promulgate a rule with a case-specific analysis, such as generally outlined in Fintiv and its progeny, for deciding whether to institute a petition on a patent that is or has been subject to other proceedings in a U.S. district court or the ITC?

6. Alternatively, in deciding whether to institute a petition on a patent that is or has been subject to other proceedings in district court or the ITC, should the Office (a) altogether disregard such other proceedings, or (b) altogether decline to institute if the patent that is or has been subject to such other proceedings, unless the district court or the ITC has indicated that it will stay the action?

7. Whether or not the Office promulgates rules on these issues, are there any other modifications the Office should make in its approach to serial and parallel AIA petitions, proceedings in other tribunals, or other use of discretion in deciding whether to institute an AIA trial?

You may be potentially affected by this action if you manufacture, process, or use the chemical substances contained in this proposed rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Manufacturers or processors of one or more subject chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.

This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import provisions. This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA, which would include the SNUR requirements should these proposed rules be finalized. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, pursuant to 40 CFR 721.20, any persons who export or intend to export a chemical substance that is the subject of this proposed rule on or after November 19, 2020 are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) and must comply with the export notification requirements in 40 CFR part 707, subpart D.

1. Submitting CBI. Do not submit CBI to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at https://www.epa.gov/dockets/commenting-epa-dockets.

EPA is proposing these SNURs under TSCA section 5(a)(2) for chemical substances which are the subjects of PMNs P-18-289, P-18-330, P-18-334, P-18-335, and P-18-337. These proposed SNURs would require persons who intend to manufacture or process any of these chemical substances for an activity that is designated as a significant new use to notify EPA at least 90 days before commencing that activity.

The record for these proposed SNURs, identified as docket ID number EPA-HQ-OPPT-2020-0497, includes information considered by the Agency in developing these proposed SNURs.

TSCA section 5(a)(2) (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four TSCA section 5(a)(2) factors listed in Unit III.

General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the rule. Provisions relating to user fees appear at 40 CFR part 700. Pursuant to 40 CFR 721.1(c), persons subject to these SNURs must comply with the same SNUN requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A) (15 U.S.C. 2604(a)(1)(A)). In particular, these requirements include the information submission requirements of TSCA sections 5(b) and 5(d)(1) (15 U.S.C. 2604(b) and 2604(d)(1)), the exemptions authorized by TSCA sections 5(h)(1), 5(h)(2), 5(h)(3), and 5(h)(5) and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA must either determine that the use is not likely to present an unreasonable risk of injury under the conditions of use for the chemical substance or take such regulatory action as is associated with an alternative determination before the manufacture or processing for the significant new use can commence. If EPA determines that the chemical substance is not likely to present an unreasonable risk, EPA is required under TSCA section 5(g) to make public, and submit for publication in the Federal Register , a statement of EPA's findings.

TSCA section 5(a)(2) states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:

• The projected volume of manufacturing and processing of a chemical substance.

• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.

• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.

• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

In determining what would constitute a significant new use for the chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, and potential human exposures and environmental releases that may be associated with the substances, in the context of the four bulleted TSCA section 5(a)(2) factors listed in this unit. During its review of these chemicals, EPA identified certain conditions of use that are not intended by the submitters, but reasonably foreseen to occur. EPA is proposing to designate those reasonably foreseen conditions of use as well as certain other circumstances of use as significant new uses.

EPA is proposing significant new use and recordkeeping requirements be added to 40 CFR part 721, subpart E for the chemical substances identified in this unit. For each chemical substance, EPA provides the following information in this unit:

• PMN number.

• Chemical name (generic name, if the specific name is claimed as CBI).

• Chemical Abstracts Service (CAS) Registry number (if assigned for non-confidential chemical identities).

• Basis for the SNUR.

• Potentially useful information.

• CFR citation assigned in the regulatory text section of these proposed rules.

The regulatory text section of these proposed rules specifies the activities designated as significant new uses. Certain new uses, including production volume limits and other uses designated in the proposed rules, may be claimed as CBI.

The chemical substances that are the subject of these proposed SNURs are undergoing premanufacture review. In addition to those conditions of use intended by the submitter, EPA has identified certain other reasonably foreseen conditions of use. EPA has preliminarily determined that the chemicals under their intended conditions of use are not likely to present an unreasonable risk. However, EPA has not assessed risks associated with the reasonably foreseen conditions of use for these chemicals. EPA is proposing to designate these reasonably foreseen conditions of use and other circumstances of use as significant new uses. As a result, those significant new uses cannot occur without first going through a separate, subsequent EPA review and determination process associated with a SNUN.

The substances subject to these proposed rules are as follows:

Chemical name: 2-(2(Methylcaboxymonocyclic)amino)ethoxy)-alcohol (generic).

CAS number: Not available.

Basis for action: The PMN states that the generic use of the substance will be as a gas scrubber and wastewater deodorizer. Based on the physical/chemical properties of the PMN substance and Structure Activity Relationships (SAR) analysis of test data on analogous substances, EPA has identified concerns for eye irritation, skin irritation, and specific target organ toxicity if the chemical is not used following the limitations noted. This proposed SNUR designates the following as “significant new uses” requiring further review by EPA:

1. Manufacture beyond an annual production volume of 80,000 kg.

2. Use other than for the confidential uses specified in the PMN.

Potentially useful information: EPA has determined that certain information about the effects of the PMN substance may be potentially useful if a manufacturer or processor is considering submitting a SNUN for a significant new use that would be designated by this proposed SNUR. EPA has determined that the results of eye irritation/corrosion and specific target organ toxicity testing would help characterize the potential health effects of the PMN substance.

CFR citation: 40 CFR 721.11561.

Chemical name: Formaldehyde, polymer with alkyl aryl ketone (generic).

CAS number: Not available.

Basis for action: The PMN states that the generic use of the substance will be as an initiator. Based on the physical/chemical properties of the PMN substance and SAR analysis of test data on analogous substances, EPA has identified concerns for nephrotoxicity, skin sensitization, specific target organ toxicity, and systemic toxicity if the chemical is not used following the limitations noted. This proposed SNUR designates the following as “significant new uses” requiring further review by EPA:

1. Use of the PMN substance in a consumer product.

2. Release of the PMN substance resulting in surface water concentrations that exceed 770 ppb.

Potentially useful information: EPA has determined that certain information about the effects of the PMN substance may be potentially useful if a manufacturer or processor is considering submitting a SNUN for a significant new use that would be designated by this proposed SNUR. EPA has determined that the results of skin sensitization and specific target organ toxicity testing would help characterize the potential health effects of the PMN substance.

CFR citation: 40 CFR 721.11562.

Chemical name: Propanedioic acid, 1,3-dihexyl ester.

CAS number: 1431-37-4.

Basis for action: The PMN states that the use of the substance will be as a chemical intermediate. Based on the physical/chemical properties of the PMN substance and SAR analysis of test data on analogous substances, EPA has identified concerns for aquatic toxicity, eye irritation, and specific target organ toxicity if the chemical is not used following the limitations noted. This proposed SNUR designates the following as “significant new uses” requiring further review by EPA:

1. Use other than as a chemical intermediate.

2. Release of the PMN substance resulting in surface water concentrations that exceed 3 ppb.

Potentially useful information: EPA has determined that certain information about the effects of the PMN substance may be potentially useful if a manufacturer or processor is considering submitting a SNUN for a significant new use that would be designated by this proposed SNUR. EPA has determined that the results of aquatic toxicity, eye irritation/corrosion, and specific target organ toxicity testing would help characterize the potential environmental and health effects of the PMN substance.

CFR citation: 40 CFR 721.11563.

Chemical name: Propanedioic acid, 1,3-dicyclohexyl ester.

CAS number: 1152-57-4.

Basis for action: The PMN states that the use of the substance will be as a chemical intermediate. Based on the physical/chemical properties of the PMN substance and SAR analysis of test data on analogous substances, EPA has identified concerns for aquatic toxicity, eye irritation, skin irritation, and specific target organ toxicity if the chemical is not used following the limitations noted. This proposed SNUR designates the following as “significant new uses” requiring further review by EPA:

1. Use other than as a chemical intermediate.

2. Release of the PMN substance resulting in surface water concentrations that exceed 6 ppb.

Potentially useful information: EPA has determined that certain information about the effects of the PMN substance may be potentially useful if a manufacturer or processor is considering submitting a SNUN for a significant new use that would be designated by this proposed SNUR. EPA has determined that the results of aquatic toxicity, eye irritation/corrosion, skin irritation/corrosion, and specific target organ toxicity testing would help characterize the potential environmental and health effects of the PMN substance.

CFR citation: 40 CFR 721.11564.

Chemical name: Propanedioic acid, 2,2-bis(hydroxymethyl)-, 1,3-dicyclohexyl ester.

CAS number: 2222732-46-7.

Basis for action: The PMN states that the use of the substance will be as a chemical intermediate. Based on the physical/chemical properties of the PMN substance and Structure Activity Relationships (SAR) analysis of test data on analogous substances, EPA has identified concerns for aquatic toxicity, eye irritation, skin irritation, and specific target organ toxicity if the chemical is not used following the limitations noted. This proposed SNUR designates the following as “significant new uses” requiring further review by EPA:

• Release of the PMN substance resulting in surface water concentrations that exceed 95 ppb.

Potentially useful information: EPA has determined that certain information about the effects of the PMN substance may be potentially useful if a manufacturer or processor is considering submitting a SNUN for a significant new use that would be designated by this proposed SNUR. EPA has determined that the results of aquatic toxicity, eye irritation/corrosion, skin irritation/corrosion, and specific target organ toxicity testing would help characterize the potential environmental and health effects of the PMN substance.

CFR citation: 40 CFR 721.11565.

During review of the PMNs submitted for the chemical substances that are the subject of these proposed SNURs and as further discussed in Unit IV., EPA identified certain other reasonably foreseen conditions of use, in addition to those conditions of use intended by the submitter. EPA has preliminarily determined that the chemical under the intended conditions of use is not likely to present an unreasonable risk. However, EPA has not assessed risks associated with the reasonably foreseen conditions of use. EPA is proposing to designate these conditions of use as well as certain other circumstances of use as significant new uses. As a result, those significant new uses cannot occur without going through a separate, subsequent EPA review and determination process associated with a SNUN.

EPA is proposing these SNURs because the Agency wants:

• To have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing or processing a listed chemical substance for the described significant new use.

• To be obligated to make a determination under TSCA section 5(a)(3) regarding the use described in the SNUN, under the conditions of use. The Agency will either determine under TSCA section 5(a)(3)(C) that the chemical, under the conditions of use, is not likely to present an unreasonable risk, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by the Administrator under the conditions of use, or make a determination under TSCA section 5(a)(3)(A) or (B) and take the required regulatory action associated with the determination, before manufacture or processing for the significant new use of the chemical substance can occur.

• To be able to complete its review and determination on each of the PMN substances, while deferring analysis on the significant new uses proposed in these rules unless and until the Agency receives a SNUN.

Issuance of a proposed SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Inventory. Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the internet at https://www.epa.gov/tsca-inventory.

To establish a significant new use, EPA must determine that the use is not ongoing. The chemical substances subject to this proposed rule were undergoing premanufacture review at the time of signature of this proposed rule and were not on the TSCA Inventory. In cases where EPA has not received a notice of commencement (NOC) and the chemical substance has not been added to the TSCA Inventory, no person may commence such activities without first submitting a PMN. Therefore, for the chemical substances subject to these proposed SNURs, EPA concludes that the proposed significant new uses are not ongoing.

EPA designates October 6, 2020 (date of web posting of this proposed rule) as the cutoff date for determining whether the new use is ongoing. The objective of EPA's approach is to ensure that a person cannot defeat a SNUR by initiating a significant new use before the effective date of the final rule.

Persons who begin commercial manufacture or processing of the chemical substances for a significant new use identified on or after that date would have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons would have to first comply with all applicable SNUR notification requirements and EPA would have to take action under section 5 allowing manufacture or processing to proceed. In developing this proposed rule, EPA has recognized that, given EPA's general practice of posting proposed rules on its website a week or more in advance of Federal Register publication, this objective could be thwarted even before Federal Register publication of the proposed rule.

EPA recognizes that TSCA section 5 does not require development of any particular new information ( e.g., generating test data) before submission of a SNUN. There is an exception: If a person is required to submit information for a chemical substance pursuant to a rule, order or consent agreement under TSCA section 4 (15 U.S.C. 2603), then TSCA section 5(b)(1)(A) (15 U.S.C. 2604(b)(1)(A)) requires such information to be submitted to EPA at the time of submission of the SNUN.

In the absence of a rule, order, or consent agreement under TSCA section 4 covering the chemical substance, persons are required only to submit information in their possession or control and to describe any other information known to or reasonably ascertainable by them (see 40 CFR 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. Unit IV. lists potentially useful information for all SNURs listed here. Descriptions are provided for informational purposes. The potentially useful information identified in Unit IV. will be useful to EPA's evaluation in the event that someone submits a SNUN for the significant new use. Companies who are considering submitting a SNUN are encouraged, but not required, to develop the information on the substance, which may assist with EPA's analysis of the SNUN.

EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection. Furthermore, pursuant to TSCA section 4(h), which pertains to reduction of testing in vertebrate animals, EPA encourages consultation with the Agency on the use of alternative test methods and strategies (also called New Approach Methodologies, or NAMs), if available, to generate the recommended test data. EPA encourages dialog with Agency representatives to help determine how best the submitter can meet both the data needs and the objective of TSCA section 4(h).

The potentially useful information described in Unit IV. may not be the only means of providing information to evaluate the chemical substance associated with the significant new uses. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA sections 5(e) or 5(f). EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.

SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:

• Human exposure and environmental release that may result from the significant new use of the chemical substances.

According to 40 CFR 721.1(c), persons submitting a SNUN must comply with the same notification requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and 721.25. E-PMN software is available electronically at https://www.epa.gov/reviewing-new-chemicals-under-toxic-substances-control-act-tsca.

EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers and processors of the chemical substances subject to this proposed rule. EPA's complete economic analysis is available in the docket for this rulemaking.

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

This action proposes to establish SNURs for new chemical substances that were the subject of PMNs. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

According to the PRA, 44 U.S.C. 3501 et seq., an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register , are listed in 40 CFR part 9, and included on the related collection instrument or form, if applicable.

The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.

Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Regulatory Support Division, Office of Mission Support (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.

Pursuant to section 605(b) of the RFA, 5 U.S.C. 601 et seq., I hereby certify that promulgation of this proposed SNUR would not have a significant adverse economic impact on a substantial number of small entities. The requirement to submit a SNUN applies to any person (including small or large entities) who intends to engage in any activity described in the final rule as a “significant new use.” Because these uses are “new,” based on all information currently available to EPA, it appears that no small or large entities presently engage in such activities.

A SNUR requires that any person who intends to engage in such activity in the future must first notify EPA by submitting a SNUN. Although some small entities may decide to pursue a significant new use in the future, EPA cannot presently determine how many, if any, there may be. However, EPA's experience to date is that, in response to the promulgation of SNURs covering over 1,000 chemicals, the Agency receives only a small number of notices per year. For example, the number of SNUNs received was seven in Federal fiscal year (FY) 2013, 13 in FY2014, six in FY2015, 12 in FY2016, 13 in FY2017, and 11 in FY2018, only a fraction of these were from small businesses. In addition, the Agency currently offers relief to qualifying small businesses by reducing the SNUN submission fee from $16,000 to $2,800. This lower fee reduces the total reporting and recordkeeping of cost of submitting a SNUN to about $10,116 for qualifying small firms. Therefore, the potential economic impacts of complying with this proposed SNUR are not expected to be significant or adversely impact a substantial number of small entities. In a SNUR that published in the Federal Register of June 2, 1997 (62 FR 29684) (FRL-5597-1), the Agency presented its general determination that final SNURs are not expected to have a significant economic impact on a substantial number of small entities, which was provided to the Chief Counsel for Advocacy of the Small Business Administration.

Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this proposed rule. As such, EPA has determined that this proposed rule does not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1531-1538 et seq. ).

This action will not have federalism implications because it is not expected to have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).

This action will not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes, significantly or uniquely affect the communities of Indian Tribal governments, and does not involve or impose any requirements that affect Indian Tribes, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000).

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.

This proposed rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use and because this action is not a significant regulatory action under Executive Order 12866.

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

This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898 (59 FR 7629, February 16, 1994).

Therefore, for the reasons stated in the preamble, EPA proposes to amend 40 CFR part 721 as follows:

This is a summary of the Commission's document (Public Notice), DA 20-1128, released on September 24, 2020. The full text of this document is available for public inspection and can be downloaded at https://docs.fcc.gov/public/attachments/DA-20-1128A1.pdf. The full text of this document can also be obtained at the following internet address: https://www.fcc.gov/document/wcb-and-oea-announce-availability-ics-database.

By the Public Notice, the Wireline Competition Bureau (Bureau) and Office of Economics and Analytics (OEA) announce the availability of the database developed by Commission staff for use in the Rates for Interstate Inmate Calling Services proceeding (the ICS Database) under the terms of the Protective Order in this proceeding (28 FCC Rcd 16954). The Commission used this ICS Database in developing its rate cap proposals in the recent 2020 ICS Notice.

The ICS Database contains confidential information submitted to the Commission by providers of calling services for incarcerated individuals, including cost and revenue information that each provider submitted in response to the Commission's Second Mandatory Data Collection. The database also includes geocoding information related to facility locations added by the Commission staff that outside parties might find difficult to replicate. Making this database available will allow interested parties to rely on a common dataset in evaluating and responding to the Commission's rate cap proposals in this proceeding, while ensuring providers remain protected against the unwarranted disclosure of their confidential information.

To request access to the ICS Database, interested individuals must first satisfy the requirements of the Protective Order. Under the terms of the Protective Order, access to information submitted under a claim of confidentiality is limited to counsel and outside consultants who are not involved in competitive decision-making, who have executed the Acknowledgement of Confidentiality appended to that Order, and who meet the other requirements of that Order. Individuals who qualify thereunder should contact the Bureau's staff, as set forth below. Before making the database available, Bureau staff will require each qualified person seeking access to execute a separate Recipient Acknowledgment governing use of the ICS Database, attached hereto. As detailed more fully in the Recipient Acknowledgment, recipients will be obligated to ensure that their copies of the database are not duplicated (whether in full or in part) and that there will be no disclosure of any of the confidential information in the database except as specifically permitted by the Protective Order. Any other use of any confidential information contained in the ICS Database will constitute a violation of an order of the Federal Communications Commission.

By signing below, I certify that I am Counsel or Outside Consultant, as such terms are defined in the Protective Order in WC Docket No. 12-375. I further certify that I am a signatory of the Acknowledgement of Confidentiality appended to that Protective Order, and that I understand it. I acknowledge that I will be receiving instructions that will allow me to download a database (the ICS Database) on which the Commission relied in the Report and Order on Remand and Fourth Further Notice of Proposed Rulemaking, FCC 20-111, in this proceeding. I also acknowledge that the ICS Database contains information that is not publicly available and that constitutes Confidential Information under the terms of the Protective Order.

I agree that I will download no more than one copy of the Commission's ICS Database and will delete the ICS Database upon completion of this proceeding in accordance with the terms of the Protective Order. I acknowledge that it is my obligation to ensure that my copy of the ICS Database is not duplicated (in whole or in part) except as specifically permitted by the terms of the Protective Order. I also acknowledge that it is my obligation to ensure that there is no disclosure of any Confidential Information in the ICS Database except as specifically permitted by the terms of the Protective Order. I further acknowledge that any use of any Confidential Information contained therein other than as permitted under the terms of the Protective Order constitutes a violation of an order of the Federal Communications Commission. I further acknowledge that the provisions of the Protective Order do not terminate at the conclusion of this proceeding.

I acknowledge that I have read the above paragraph and agree to its terms. I attach a copy of my signed Acknowledgment from the Protective Order. I confirm that with regard to Confidential Information, any objection to such Acknowledgment pursuant to the Protective Order has been resolved in my favor and the Acknowledgment remains in full force and effect.

The Convention focuses on the conservation and management of fisheries for highly migratory species (HMS). The objective of the Convention is to ensure, through effective management, the long-term conservation and sustainable use of HMS in the WCPO. To accomplish this objective, the Convention established the Commission on the Conservation of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC or Commission), which includes Members, Cooperating Non-members, and Participating Territories (collectively referred to here as “members”). The United States of America is a Member. American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands (CNMI) are Participating Territories.

As a Contracting Party to the Convention and a Member of the Commission, the United States implements conservation and management measures and other decisions adopted by the Commission. The WCPFC Implementation Act (16 U.S.C. 6901 et seq. ), authorizes the Secretary of Commerce, in consultation with the Secretary of State and the Secretary of the Department in which the United States Coast Guard is operating (currently the Department of Homeland Security), to promulgate such regulations as may be necessary to carry out the obligations of the United States under the Convention, including the decisions of the Commission. The WCPFC Implementation Act further provides that the Secretary of Commerce shall ensure consistency, to the extent practicable, of fishery management programs administered under the WCPFC Implementation Act and the Magnuson-Stevens Fishery Conservation and Management Act (MSA; 16 U.S.C. 1801 et seq. ), as well as other specific laws (see 16 U.S.C. 6905(b)). The Secretary of Commerce has delegated the authority to promulgate regulations under the WCPFC Implementation Act to NMFS. A map showing the boundaries of the area of application of the Convention (Convention Area), which comprises the majority of the WCPO, can be found on the WCPFC website at: www.wcpfc.int/doc/convention-area-map.

CMM 2017-03, “Conservation and Management Measure for WCPFC Regional Programme Observers,” was adopted by the Commission to strengthen protections for observers on fishing trips operating under the WCPFC Regional Observer Programme (ROP). This proposed rule would implement provisions of CMM 2017-03. The CMM includes provisions that detail responsibilities for vessel owners and operators, responsibilities for WCPFC members to which fishing vessels are flagged, responsibilities for members that have jurisdiction over ports, and responsibilities for observer providers. These provisions include (1) provisions for when a WCPFC observer  1 dies, is missing or presumed to have fallen overboard; (2) provisions for when a WCPFC observer suffers from a serious illness or injury that threatens his or her health or safety; and (3) provisions for when there are reasonable grounds to believe a WCPFC observer has been assaulted, intimidated, threatened or harassed.

In the event that a WCPFC observer on a fishing vessel of the United States dies, is missing or presumed fallen overboard, CMM 2017-03 contains a number of requirements for an owner and operator of the fishing vessel to follow including: (1) Immediately cease all fishing operations; (2) immediately commence search and rescue if the observer is missing or presumed fallen overboard; (3) immediately notify the flag state of the vessel; (4) immediately alert other vessels in the vicinity by using all available means of communication; (5) cooperate fully in any search and rescue operation; (6) return the vessel for further investigation to the nearest port whether the search is successful or not; (7) provide a report to the observer provider; (8) cooperate fully in any official investigations; and (9) ensure the body is well preserved if an observer dies.

In the event that a WCPFC observer on a fishing vessel of the United States suffers from a serious illness or injury that threatens his or her health or safety, CMM 2017-03 contains a number of requirements for an owner or operator to follow including: (1) Immediately cease all fishing operations; (2) immediately notify the flag state of the vessel; (3) take all reasonable actions to care for the observer and provide any medical treatment available and possible on board the vessel; (4) facilitate the disembarkation of the observer; and (5) cooperate fully in any investigations into the cause of illness or injury.

In the event that there are reasonable grounds to believe a WCPFC observer on a fishing vessel of the United States has been assaulted, intimidated, threatened, or harassed, CMM 2017-03 contains a number of requirements for an owner and operator of the fishing vessel to follow including: (1) Immediately take action to preserve the safety of the observer and mitigate and resolve the situation on board; (2) notify the flag state of the vessel and observer provider; (3) facilitate the safe disembarkation where requested; and (4) cooperate fully into any investigations into the incident.

As stated above, CMM 2017-03 applies to WCPFC observers on fishing trips operating under the WCPFC ROP. Paragraph 2 of the CMM also notes that the measure shall not prejudice the rights of members to enforce their laws with respect to the safety of observers consistent with international law.

Under CMM 2017-03, members are to require vessel owners and operators to take specific actions in the event of death, injury, serious illness, or harassment of a WCPFC observer, or when a WCPFC observer is missing or presumed fallen overboard. The requirements relate to vessel operations, notifications to the U.S. government, search and rescue procedures, and investigations. Some of the U.S. obligations are satisfied by existing regulations. Specifically, the United States already requires U.S. vessel owners or operators to notify the U.S. Coast Guard for marine casualties, including the death, loss, or serious injury of an observer. The regulations set forth at at 46 CFR 4 specify requirements for notifications, reporting, and investigations of marine casualties. Because these regulations already satisfy the provisions of CMM 2017-03 for cases of death, or serious injury of an observer, or when an observer is missing or presumed fallen overboard, NMFS would not promulgate additional regulations for these instances. Serious injury is defined at 46 CFR 4.05-1 (6) as an injury that requires professional medical treatment (treatment beyond first aid).

This proposed rule would implement the provisions of CMM 2017-03 for cases of serious illness, assault, intimidation, threats, interference, or harassment of a WCPFC observer.

The proposed rule would also implement specific prior notification procedures related to WCPFC observers that vessel owners and operators of U.S. vessels fishing for HMS in the Convention Area would need to follow.

Currently, U.S. commercial vessels fishing for HMS in the Convention Area provide prior notification only to obtain WCPFC observers for fishing trips when transshipments will be conducted at sea in the Convention Area (see 50 CFR 300.215(b)). Notifications must be provided at least 72 hours (exclusive of weekends and Federal holidays) before the vessel leaves port on the fishing trip and must include specific information. This requirement does not apply to U.S. purse seine vessels; U.S. purse seine vessels are prohibited from conducting at-sea transshipments (see 50 CFR 300.216(b)). However, U.S. purse seine vessels are required to carry WCPFC observers on all fishing trips within the Convention Area, unless the fishing trip takes place exclusively in the jurisdiction of a single nation other than the United States or unless no fishing occurs between 20° N latitude and 20° S latitude (50 CFR 300.223(e)).

Pursuant to the South Pacific Tuna Treaty (SPTT) and through a separate contractual agreement between the American Tunaboat Association and the Pacific Islands Forum Fisheries Agency (FFA), U.S. purse seine vessels carry observers deployed by the FFA Observer Program. FFA observers are authorized WCPFC observers, are nationals of Pacific island countries, and are at present the only observers placed on U.S. purse seine vessels operating in the Convention Area. Currently, NMFS coordinates with FFA and places WCPFC observers on U.S. purse seine vessels departing from American Samoa. NMFS also collects information required for nominating WCPFC and Inter-American Tropical Tuna Commission (IATTC) cross-endorsed observers  2 for U.S. purse seine vessels intending to operate in both RFMOs on a single trip.

After reviewing the current administrative process regarding FFA observer placements on U.S. purse seine vessels under the WCPFC and SPTT, NMFS believes that prior notification by U.S. purse seine vessel owners and operators of their request for a WCPFC observer is needed to facilitate observer placement for trips departing from American Samoa. NMFS believes that a request for a WCPFC observer, including cross-endorsed observers, for a U.S. purse seine vessel departing from American Samoa should provide sufficient time for NMFS to complete the necessary administrative tasks, including coordinating international logistics for FFA observers traveling from other Pacific islands to American Samoa. NMFS proposes such observer requests be made at least five business days prior to the expected departure date from American Samoa.

Although the U.S. purse seine fleet is the only U.S. fleet that uses cross-endorsed observers, other fleets, such as the U.S. longline or albacore troll fleets that also operate in the Convention Area and the IATTC's area of competence (IATTC Area), could request the placement of a cross-endorsed observer for trips that take place in both the Convention Area and the IATTC Area in the future. To date, no requests for cross-endorsed observers have been received from U.S. longline or albacore troll vessels. NMFS believes that notification requesting cross-endorsed observers for vessels of all gear types commercially fishing for HMS would aid in efficient placement of cross-endorsed observers as it would allow time for NMFS to complete the appropriate administrative steps, and notify the Secretariats for the WCPFC and IATTC of the placement prior to departure. As previously discussed in the context of purse seine vessels, NMFS believes that receiving notice of the need for a cross-endorsed observer for vessels of all gear types at least five business days prior to the expected departure date of the vessel on a fishing trip would be appropriate, as travel arrangements may need to be made if a cross-endorsed observer is not located at the port of departure.

The specific elements of the proposed rule are detailed below.

This proposed rule would implement specific requirements for vessel owners and operators to help ensure the safety of WCPFC observers. CMM 2017-03 describes requirements for vessel owners and operators specifically related to vessel operations, notification, search and rescue procedures, and investigations in the event of death, injury, serious illness, missing overboard, or harassment of a WCPFC observer.

NMFS is not proposing additional regulations in the event of death, loss or serious injury as they would be duplicative of U.S. Coast Guard regulations on marine casualty incidents at 46 CFR 4.

Under the proposed rule, vessel owners and operators would be required to notify the designated authorities as specified by the Regional Administrator at https://www.fisheries.noaa.gov/pacific-islands/commercial-fishing/western-and-central-pacific-longline-and-purse-seine-vessels in the event of serious illness, assault, intimidation, threats, interference, or harassment of a WCPFC observer. NMFS plans to create a website that would provide specific contact information of the designated authorities, including emails and phone numbers. At this time, NMFS has identified the observer provider and NOAA Office of Law Enforcement Pacific Islands Division Duty Officer as contacts in the event of serious assault, intimidation, threats, interference or harassment of a WCPFC observer, and the NOAA Office of Law Enforcement in the event of serious illness. Any changes or updates to these contacts will be posted on the website. Owners and operators would be required to immediately notify the contacts of the situation and the status and location of the observer.

NMFS notes that the nearest U.S. Coast Guard office would be the point of contact for emergency situations that would necessitate an immediate U.S. Coast Guard search and rescue, or law enforcement response. NMFS does not maintain a 24-hour hotline to handle such emergencies. Thus, in emergency situations that need an immediate response, vessel owners and operators are encouraged to contact the nearest U.S. Coast Guard Rescue Coordination Center (RCC) that can help coordinate with the closest Search and Rescue (SAR) facility in the area of the vessel: https://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Response-Policy-CG-5R/Office-of-Incident-Management-Preparedness-CG-5RI/US-Coast-Guard-Office-of-Search-and-Rescue-CG-SAR/RCC-Numbers/ ).

In addition, under the proposed rule, the vessel owner or operator would be required to follow certain procedures in the event of serious illness, assault, intimidation, threats, interference or harassment of a WCPFC observer. The rule would require that, in these cases, the owner or operator of the fishing vessel must: (1) Immediately cease fishing operations; (2) take all reasonable actions to care for the observer and provide any medical treatment available and possible on board the vessel; (3) where directed by the observer provider, if not already directed by the appropriate U.S. government contact, facilitate the disembarkation and transport of the observer to a medical facility equipped to provide the required care, as soon as practicable; and (4) cooperate fully in any official investigations into the cause of the illness. The proposed rule would specify that the owner or operator of the fishing vessel must “immediately cease fishing operations.” NMFS anticipates that there may be circumstances where “immediately cease” could allow for gear to be retrieved and NMFS does not encourage abandoning fishing gear. Although a vessel is required to immediately cease fishing operations, this rule would not prohibit reasonable steps to recover gear and catch, if appropriate under the circumstances.

For placement of WCPFC observers on U.S. purse seine vessels when departing from American Samoa and for placement of cross-endorsed observers on U.S. purse seine vessels when requested, NMFS proposes requiring U.S. purse seine vessel owners and operators to submit such requests at least five business days before expected departure. The WCPFC observer request would need to provide the name of the vessel, name of the operator of the vessel, telephone number or email at which the owner or operator may be contacted, intended departure date, intended port of departure, and whether the owner or operator requests a WCPFC-IATTC cross-endorsed observer. NMFS also proposes requiring all other U.S. commercial fishing vessels fishing for HMS in the Convention Area to submit WCPFC-IATTC cross-endorsed observer requests at least five business days before departure. The request would need to provide the name of the vessel, name of the operator of the vessel, a telephone number or email at which the owner or operator may be contacted, expected departure date, intended port of departure and identify the need for a WCPFC-IATTC cross-endorsed observer.

The Administrator, Pacific Islands Region, NMFS, has determined that this proposed rule is consistent with the WCPFC Implementation Act and other applicable laws, subject to further consideration after public comment.

NMFS determined that this action is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program of American Samoa, the CNMI, Guam, and the State of Hawaii. NMFS submitted determinations to Hawaii and each of the Territories on March 16, 2020, for review by the responsible state and territorial agencies under section 307 of the CZMA. Hawaii replied by letter dated March 19, 2020, stating that, because the proposed rule is outside of the jurisdiction of the Hawaii Coastal Zone Management Program's enforceable policies, it would not be responding to the consistency determination. The CNMI replied by letter dated May 12, 2020, stating that based on the information provided, it has determined that the action will be undertaken in a manner that is consistent to the maximum extent practicable with the enforceable policies of the CNMI's coastal management program. Guam replied by letter dated May 27, 2020, stating that based on the information provided, it has determined that the action will be consistent with the enforceable policies of Guarm's Coastal Management Program. No response was received from American Samoa, and thus, concurrence with the respective consistency determinations is presumed (15 CFR 930.41).

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

An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the RFA. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained in the SUMMARY section of the preamble. The analysis follows:

For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 114111) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.

The proposed rule would apply to owners and operators of U.S. commercial fishing vessels that fish for HMS in the Convention Area that: (1) Carry a WCPFC Observer or (2) purse seine for HMS in the Convention Area. This includes vessels in the purse seine, longline, and albacore troll fleets. The estimated number of affected fishing vessels is as follows based on the number of vessels on the WCPFC Record of Fishing Vessels as of March 25, 2020: 26 Purse seine vessels, 168 longline vessels, and 12 albacore troll vessels. Thus, the total estimated number of commercial fishing vessels that would be subject to the rule is 206. The purse seine vessels operating in the Convention Area generally land in American Samoa and other ports in Pacific Islands, the longline vessels operating in the Convention Area generally land in American Samoa and Hawaii, and the albacore troll vessels operating in the Convention Area generally land their catch in California, Oregon, Washington or Canada.

Based on (limited) financial information about the affected fishing fleets, and using individual vessels as proxies for individual businesses, NMFS believes that all the affected fish harvesting businesses in all the fleets, except the purse seine fleet, are small entities as defined by the RFA; that is, they are independently owned and operated and not dominant in their fields of operation, and have annual receipts of no more than $11.0 million. Within the purse seine fleet, analysis of average revenue, by vessel, for 2017-2019 reveals that average fleet revenue was $8,890,000 (NMFS unpublished data combined with price data from https://www.ffa.int/node/425 and https://www.wcpfc.int/node/46580 accessed on July 27, 2020); however, 17 participating vessels qualified as small entities with their average of the most recent three years of vessel revenue for which data is available of less than $11 million. Within the Hawaii based longline fleet, an average of 146 vessels recorded landings during 2017-2019 with a average vessel revenue of approximately $828,000 per vessel (estimate calculated using data from the 2019 Pelagic Fishery Ecosystem Plan Stock Assessment and Fishery Evaluation Report and Annual Reports of the Hawaii Longline Fishery). For the American Samoa based longline fleet, an average of 15 vessels recorded landings during 2017-2019 with average vessel revenue of approximately $339,000 per vessel (estimate calculated using data from the 2019 Pelagic Fishery Ecosystem Plan Stock Assessment and Fishery Evaluation Report and Annual Reports of the American Samoa Longline Fishery). None of the other potentially directly regulated fishing sectors had total fishery revenue of all vessels combined that exceeded the small entity threshold.

The reporting, recordkeeping and other compliance requirements of this proposed rule are described earlier in the preamble. The classes of small entities subject to the requirements and the types of professional skills necessary to fulfill the requirements are as follows:

(1) Reporting requirements when carrying a WCPFC observer: This requirement is part of a proposed collection of information subject to approval by the Office of Management and Budget (OMB) under the PRA. It would apply to about 199 small business entities, (derived from subtracting the seven vessels that do not qualify as small business entities from 206, the number of fishing vessels affected by this rule as estimated from vessels with WCPFC area endorsements). Complying would require that owners and operators of purse seine, longline and troll vessels to contact NMFS in the event of serious illness, assault, intimidation, threats, interference, or harassment of a WCPFC observer. NMFS estimates the cost of compliance as the cost of a five minute phone call though the cost of compliance could vary depending on the directions given by NMFS. NMFS cannot project how many calls would occur, but from 2015-2019, NOAA Office of Law Enforcement charged a total of six cases of harassment against purse seine and longline vessels in the Pacific Islands Region. Thus, NMFS expects events of serious illness, assault, intimidation, threats, interference, or harassment of a WCPFC observer to occur very rarely (average of one per year) and thus the cost of reporting to be very small. The Commission has indefinitely deferred implementation of placing WCPFC observers on troll vessels, and for the foreseeable future, NMFS does not believe that this requirement would add any new compliance costs for troll vessels. If the Commission were to change its position on placing WCPFC observers on troll vessels, troll operators may incur compliance costs similar to those described above. Fulfillment of this requirement is not expected to require any professional skills that the vessel owners and operators do not already possess.

(2) Requirement to ensure observer safety: This requirement is outside of the proposed collection of information under the PRA. In the event of serious illness, assault, intimidation, threats, interference or harassment of a WCPFC observer, the proposed rule would require the owner or operator of the fishing vessel to: (1) Immediately cease fishing operations; (2) take all reasonable actions to care for the observer and provide any medical treatment available and possible on board the vessel; (3) where directed by the observer provider, if not already directed by the appropriate U.S. government contact, facilitate the disembarkation and transport of the observer to a medical facility equipped to provide the required care, as soon as practicable; and (4) cooperate fully in any official investigations into the cause of the illness. NMFS cannot project how often this would occur, but anticipates these events to occur rarely. As mentioned above, NOAA Office of Law Enforcement has charged six cases of harassment against purse seine and longline vessels over 2015-2019 in the Pacific Islands Region, which equates to approximately one per year. If such an event does occur, the impacts could vary depending on when the event occurs and what foregone opportunity is lost. For illustrative purposes, the average gross revenue of a U.S. purse seine fishing trip from 2017-2019 was a little under $1.4 million per trip (calculated by multiplying Bangkok fish prices by average catch per trip using NMFS data) so if an event occurred near the start of a fishing trip, the vessel could potentially forgo much of that revenue along with any trip costs already incurred. For U.S. longline vessels the average gross revenue from 2017-2019 (calculated using nominal revenue and trip information from the 2019 Pelagic Fishery Ecosystem Plan Stock Assessment and Fishery Evaluation Report) was around $664,000 per Hawaii-based deep-set trip, $64,000 per Hawaii-based shallow-set trip, and $39,000 per American Samoa-based trip so if an event occurred near the start of a fishing trip, the vessel could potentially forgo much of that revenue along with any trip costs already incurred.

(3) Notification requesting a WCPFC Observer: This requirement is part of a proposed collection of information subject to approval by OMB under the PRA. It would apply to about 199 small business entities. Vessels are already required to provide notification prior to trip departure if they intend to transship at sea, and this proposed requirement would expand notification requirements to all vessels requesting a WCPFC-IATTC cross-endorsed observer and to purse seine vessels requesting a WCPFC observer and departing from American Samoa. Longline vessels are already required to notify NMFS at least 72 hours before departure on a fishing trip, and this requirement would not add any new compliance costs for those vessels. The additional 48 hours advanced notice might reduce operational flexibility for longline vessels, but to date, there have been no requests from longliners for WCPFC-IATTC cross-endorsed observers, so this would be expected to occur very rarely if at all. The WCPFC has indefinitely deferred implementation of placing ROP observers on troll vessels, and for the foreseeable future, NMFS does not believe that this requirement would add any new compliance costs for troll vessels. If the WCPFC were to change its position on placing ROP observers on troll vessels, troll operators may incur minor compliance costs similar to those outlined below for purse seine vessels.

The proposed requirement may result in compliance costs for vessels requesting a WCPFC-IATTC cross-endorsed observer. It is estimated that each pre-trip notification would require 1 minute of labor and about $1 in communication costs. The value of the required labor is estimated to be $24.42 per hour. The estimated cost of compliance is less than $2 per notification. The number of pre-trip notifications for a cross-endorsed observer cannot be predicted with any certainty, but for the purpose of this analysis, each vessel is expected to make 0.23 pre-trip notifications per year requesting a WCPFC-IATTC cross-endorsed observer (estimate based on the average number of WCPFC-IATTC notifications NMFS made in 2018-2019 divided by 221, the number of potential respondents including (1) 40 purse seine vessels, which is the maximum number of licenses available under the South Pacific Tuna Treaty; (2) 164 longline vessels, which is the maximum number of Hawaii longline limited entry permits available; and (3) 17 troll vessels, which is the maximum number of West Coast-based albacore vessels that fished in the Convention Area in any one year from 2016-2019). The estimated cost of compliance for all vessels is expected to be $70.35 for 50 pre-trip notifications requesting a WCPFC-IATTC cross-endorsed observer per year.

The proposed requirement may also result in compliance costs for purse seine vessels requesting a WCPFC observer when departing from American Samoa. It is estimated that each notification would require 1 minute of labor and about $1 in communication costs. The value of the required labor is estimated to be $24.42 per hour. The estimated cost of compliance is less than $2 per notification. The number of requests and notifications cannot be predicted with any certainty, but for the purpose of this analysis, each purse seine vessel is expected to make 2.34 requests or notifications per year related to WCPFC observers (estimate based on the average number of trips per year from 2014-2018 divided by 40, the number of potential respondents). The estimated cost of compliance is therefore expected to be $3.29 for a vessel that makes 2.34 pre-trip notifications per year.

NMFS has identified Federal regulations that could overlap with the proposed rule for each of its two elements:

As mentioned above, the U.S. Coast Guard has regulations at 46 CFR part 4 relating to marine casualties. This proposed regulation would implement the requirements of CMM 2017-03 that are not marine casualties covered by the existing U.S. Coast Guard regulations.

IATTC adopted Resolution C 18-07 on Observer Safety, and NMFS published a final rule on May 18, 2020 (85 FR 29666) related to observer safety notification for observers on vessels that are on fishing trips in the IATTC Area. The regulations in the proposed rule and the regulations applicable to the IATTC Area would apply to WCPFC observers that are on vessels that are fishing in the IATTC Area, such as WCPFC observers that are also cross-endorsed observers. In this case, there would be overlapping regulations, but NMFS intends to ensure consistency in the contacts for the observer safety notification such that both requirements would be satisfied with one notification.

Vessels with a Hawaii or American Samoa longline limited access permit are required at 50 CFR 665.803 to notify NMFS at least 72 hours (excluding weekends and Federal holidays) before the vessel leaves port on a fishing trip wherein any part occurs in the U.S. exclusive economic zone around the Hawaiian Archipelago or American Samoa. Purse seine vessels operating in the Eastern Pacific Ocean are also required at 50 CFR 216.24 to notify NMFS or the IATTC contact designated by NMFS at least five days before the vessel leaves port for observer placement reasons. This regulation potentially overlaps with the proposed regulation for those trips that include a request for placement of a cross-endorsed observer.

NMFS has not been able to identify any alternatives that would minimize any significant economic impact of the proposed rule on small entities. The alternative of taking no action at all was rejected because it would be inconsistent with the United States' obligations under the Convention. As a Contracting Party to the Convention, the United States is required to implement the decisions of the WCPFC. Consequently, NMFS has limited discretion as to how to implement those decisions.

This proposed rule contains a collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This rule revises the existing requirements for the collection of information 0648-0649, “Transshipment Requirements Under the WCPFC” by requiring reporting in the event of serious illness, assault, intimidation, threats, interference, or harassment of a WCPFC observer on purse seine vessels and troll vessels as well as requiring pre-trip notificaitons for purse seine vessels requesting a purse seine observer and departing from American Samoa, and requiring pre-trip notifications for vessels requesting a WCPFC-IATTC cross endorsed observer. Notifications related to observer safety on purse seine vessels and troll vessels are expected to be rare, and the public burden is estimated to average five minutes per reporting incident. NMFS estimates that the public reporting burden would be one minute for pre-trip notifications for purse seine vessels requesting a WCPFC observer and departing from American Samoa and one minute for pre-trip notifications for vessel requesting a WCPFC-IATTC cross endorsed observer.

NMFS is also revising the existing requirements for the collection of information 0648-0214, “Pacific Islands Region Logbook Family of Forms” by requiring reporting in the event of serious illness, assault, intimidation, threats, interference, or harassment of a WCPFC observer on longline vessels. Notifications related to observer safety on longline vessels are expected to be rare, and the public burden is estimated to average five minutes per reporting incident.

NMFS requests any comments on the PRA requirements under this proposed rule, including whether the paperwork would unnecessarily burden any vessel owners and operators. Public comment is sought regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to the ADDRESSES above, and by email to www.reginfo.gov/public/do/PRAMain.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number. All currently approved NOAA collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.

For the reasons set out in the preamble, 50 CFR part 300 is proposed to be amended as follows:

The purpose of this proposed rule is to minimize interactions between Endangered Species Act (ESA)-listed salmon species and Pacific Coast groundfish fishing gear. On the West Coast, vessels fishing under the Pacific Coast Groundfish Fishery Management Plan (FMP) use gear types ( e.g., midwater and bottom trawl, fixed gear, and hook-and-line) that interact with listed Evolutionary Significant Units (ESUs) of coho and Chinook salmon. The seasonality and geographic extent, including fishing depth and north/south distribution of the different target strategies and gear types, result in different direct effects on different ESUs of these salmonids.

In January 2013, NMFS reinitiated ESA section 7 consultation for listed salmonids to address changes in the groundfish fishery, including the trawl rationalization program and the emerging midwater trawl fishery targeting species other than Pacific whiting. In October 2014, before the consultation was complete, the whiting fishery exceeded the incidental take limit established in the 2006 NMFS Biological Opinion (Consultation Number: 2006/00754), a second trigger for reinitiation. To better understand the implications of the changes in management framework and the effects on listed salmonids of all fishing under the FMP in the reinitiated consultation, NMFS conferred with the Pacific Fishery Management Council (Council), its advisory bodies, and the public over the next few years.

On December 11, 2017, NMFS issued its Biological Opinion on the impact of the NMFS authorization of the groundfish fishery on ESA-listed salmonids (see ADDRESSES for electronic access information). The Incidental Take Statement (ITS) in the Biological Opinion sets forth terms and conditions. Compliance with those terms and conditions provides an exemption to the prohibition on take of listed species in Section 9 of the ESA. The components of the Biological Opinion are summarized in the proposed rule for 2019-20 Pacific Coast groundfish harvest specifications and management measures (83 FR 47416; September 19, 2018). NMFS and the Council addressed a number of ITS terms and conditions in the final rule for 2019-20 Pacific Coast groundfish harvest specifications and management measures (83 FR 63970; December 12, 2018).

To address the remaining terms and conditions (2.b and 3.a), the Council was to consider developing new incidental salmon bycatch mitigation tools to allow for timely inseason management to keep sectors from exceeding their salmon bycatch guidelines (term and condition 2.b). If the Council determined additional management measures were needed to allow for timely inseason management of salmon bycatch guidelines, the Council would recommend these management measures to NMFS within a three-year period after the date of the Biological Opinion. The Council and NMFS would also develop and implement regulations regarding the Chinook salmon bycatch reserve and its use (term and condition 3.a).

The Council evaluated the Biological Opinion and analyzed an action to amend the regulations implementing the FMP to address ESA-listed salmon bycatch in the fishery at its November 2018, April 2019, September 2019, and November 2019 meetings. The Council recommended a preferred alternative at its September 2019 meeting and took final action in November 2019. The Council deemed the proposed regulations consistent with and necessary to implement this action in a June 2, 2020, letter from Council Chairman Phil Anderson to NMFS Regional Administrator Barry Thom. NMFS proposes amendments to the regulations for the Pacific Coast groundfish fishery at 50 CFR 660 through this proposed rule to incorporate the Council's recommendation and implement the terms and conditions set forth in the 2017 NMFS Biological Opinion.

For purpose of analysis in the Biological Opinion, NMFS divided the groundfish fishery into two groups or “sectors” for the purposes of estimating and analyzing ESA-listed salmon bycatch. This rule will refer to these groups as the whiting sector and non-whiting sector. The whiting sector includes the tribal and non-tribal vessels in the mothership (MS) Coop Program, Catcher/processor (C/P) Coop Program, and Pacific whiting Shorebased individual fishing quota (IFQ) fishery. In this rule, the MS Coop Program, the C/P Coop Program and the Pacific whiting IFQ fishery are referred to as “components” of the whiting sector. The non-whiting sector includes tribal and non-tribal vessels in the Shoreside trawl, fixed gear, and recreational fisheries that are not accounted for in pre-season salmon modeling. The recreational fisheries not accounted for in pre-season salmon modeling are those occurring outside of the open salmon seasons and the Oregon longleader fishery.

NMFS currently manages Chinook salmon bycatch to guidelines of 11,000 fish for the whiting sector, and 5,500 fish for the non-whiting sector. Fishery sectors may access a 3,500 Chinook salmon bycatch “reserve” upon reaching their Chinook bycatch guideline (described further in Section IV). NMFS automatically closes all groundfish fisheries once the guidelines plus the reserve are reached ( i.e., a total of 20,000 Chinook salmon are caught as bycatch). For accounting purposes, Chinook salmon bycatch accrues to either the whiting sector or non-whiting sector. NMFS monitors Chinook salmon bycatch inseason and will (1) close the whiting sector if that sector catches its guideline limit and the full reserve amount, (2) close the non-whiting sector if that sector catches its guideline limit and the full reserve amount, or (3) close either the whiting or non-whiting sector if either sector reaches its guideline limit when the other sector has already taken the reserve amount (83 FR 63970; December 12, 2018). The bycatch guidelines and reserve are summarized in Table 1.

NMFS previously established two tools to manage Chinook and coho salmon bycatch in the groundfish fishery through prior rulemakings. These two tools are a Bycatch Reduction Area (BRA) for midwater trawl vessels at the 200-fathom (fm) (366-meter (m)) depth contour (83 FR 63970, December 12, 2018), and Block Area Closures (BACs) for bottom trawl vessels from shore to the 250-fm (457-m) depth contour (84 FR 63966, November 19, 2019). The BRA is a coastwide closure from 3nm out to the 200-fm (366-m). BACs are set using depth contour approximations and latitude lines in regulation at 50 CFR 660.71 through 660.74, and are more targeted area closures to minimize salmon bycatch and potential economic losses. Additional details about BACs are presented in Section IV. The Council may recommend NMFS implement BRAs and BACs to minimize salmon bycatch through routine management measures. Most trip, bag, and size limits, and some Groundfish Conservation Area closures in the groundfish fishery, including BRAs and BACs, have been designated “routine” management measures in the Pacific Coast Groundfish FMP. The Council can use routine management measures to rapidly implement or modify these management measures through a single Council meeting process. Inseason changes to routine management measures are announced in the Federal Register pursuant to the requirements of the Administrative Procedures Act. BRAs and BACs are effective at the times and areas stated in the Federal Register . NMFS also disseminates the boundaries and duration of the BRA or BAC through public notices and postings on the West Coast Region website (see ADDRESSES for electronic access information).

This rule proposes additional management tools beyond BRAs and existing BACs to minimize incidental Chinook and coho salmon bycatch to keep fishery sectors within guidelines. These additional tools include: (1) BACs for midwater trawl fisheries; (2) an extension of BACs seaward of the 250-fm (457-m) depth contour for bottom trawl fisheries; and (3) a selective flatfish trawl (SFFT) gear requirement for bottom trawl vessels. These additional management tools apply only to non-tribal fisheries. NMFS expects the tribes may implement area management measures to minimize salmon bycatch, if necessary.

This proposed rule would make BACs available as a routine management measure to minimize salmon bycatch in the midwater trawl fisheries in the whiting and non-whiting sectors and prevent bycatch from exceeding the guidelines. BACs are size variable spatial closures bounded by latitude lines, defined at 50 CFR 660.11, and depth contour approximations defined at 50 CFR 660.71 through 660.74 ((10 fm (18 m) through 250 fm (457 m)), and § 660.76 (700 fm (1280 m)) Amendment 28 to the FMP (84 FR 63966; November 19, 2019) established BACs for bottom trawl fisheries. This proposed rule would prohibit midwater trawl fishing within the BAC boundaries. BACs could be implemented or modified in the Exclusive Economic Zone (EEZ) off Oregon and California for vessels using limited entry midwater trawl gear. BACs may be implemented in the EEZ off Washington shoreward of the boundary line approximating the 250-fm (457-m) depth contour for vessels using limited entry midwater trawl gear. The Council decided to not include extending the available BAC boundary for vessels fishing with midwater trawl gear beyond 250-fm (457-m) off Washington as part of its recommendation due to the limited operation of midwater trawl vessels in that area.

The BAC tool would allow the Council to recommend and NMFS to implement size variable area closures as a routine management measure to address specific areas of high salmon bycatch rather than large fixed closure areas ( e.g., BRA). BACs would allow for the midwater trawl fishery to remain open in areas outside of the BACs.

This proposed rule would not implement specific individual BACs. BACs could not be used to close an area to any type of fishing other than groundfish bottom or midwater trawling. This rule would allow NMFS to close or reopen BACs preseason ( e.g., before the start of the fishing year or before the May 15 start of the Pacific whiting fishery) or inseason. The approach would be consistent with existing “routine inseason” frameworks already in the FMP and regulations (described in Section II above). If good cause exists under the Administrative Procedure Act to waive notice and comment, a single Federal Register notice will announce routine inseason BACs approved by NMFS.

When deciding whether to recommend BACs for NMFS to implement, consistent with the FMP, the Council will consider environmental impacts, including economic impacts, and public comment via the Council process. Depending on the circumstances, NMFS may close areas for a defined period of time, for example, a few months or the remainder of the fishing year, or maintain the closure for an indefinite period of time, for example, until reopened by a subsequent action. NMFS may close one or more BACs, and the size of the BACs can vary. A Federal Register notice will announce the geographic boundaries (described with coordinates in codified regulations) of one or more BACs, the effective dates, applicable gear/fishery restrictions, as well as the purpose and rationale. NMFS would also disseminate this information on BACs through public notices and posting on the West Coast Region website (see ADDRESSES for electronic access information).

This proposed rule would allow the NMFS to take routine inseason action to implement BACs seaward of the boundary line approximating the 250-fm (457 m) depth contour to the existing boundary line approximating the 700-fm (1280-m) Essential Fish Habitat Conservation Area closure for bottom trawl fisheries. The boundary line approximating the 700-fm (1280-m) depth contour is described at 50 CFR 660.76. This extension of BACs would only apply south of 46°0 16′00″ N. latitude (in the EEZ off Oregon and California). These actions would allow NMFS to implement and modify BACs, as a routine management measure, in open areas beyond the 250-fm (457-m) boundary in order to minimize incidental salmon bycatch. While salmon bycatch rates are generally low in depths greater than 250-fm (457-m) for trawl fisheries (see Section 2.15 of the Analysis), salmon distribution is known to extend into those depths. Therefore, the Council recommended, and NMFS is proposing to implement, this extension so as to not constrain management of salmon bycatch for bottom trawl vessels to the boundary line approximating the 250-fm (457-m) depth contour as the seaward boundary for a BAC. This proposed rule does not implement individual BACs for bottom trawl fisheries. If consistent with the FMP, Magnuson-Stevens Act, and other applicable law, NMFS may approve and implement a Council recommended BAC through a routine inseason action as described in Section II and III.A above. The Council decided to not include extending the available BAC boundary for vessels fishing with bottom trawl gear beyond 250 fm (457 m) off Washington as part of its recommendation due to the limited operation of bottom trawl vessels in that area.

Selective flatfish trawl (SFFT) gear was designed to target flatfish while allowing stronger swimming rockfish to swim up-and-over the cut-back headrope. Typical bottom trawls have a “hooded” headrope and lower escapement compared to an SFFT. Chinook and coho salmon are strong swimmers and capable of swimming over the low headrope or low wings of SFFT. Therefore, use of SFFT is also expected to reduce bycatch of Chinook salmon (Section 3.6.3.4.1 of Analysis).

This proposed rule would make a requirement for SFFT available as a routine management measure to address ESA-listed salmon bycatch in the groundfish bottom trawl fisheries. The requirement to fish with an SFFT could be used in conjunction with a BAC. In other words, if the Council were to recommend and NMFS were to implement a BAC for bottom trawl, it could allow bottom trawl vessels to continue fishing in the BAC if vessels used SFFT. The Council recommended, and NMFS is proposing to implement, this action because it would provide flexibility for those vessels with SFFT.

This proposed rule would not implement individual SFFT requirements. The Council would recommend SFFT requirements in the future. This rule would allow NMFS to implement SFFT requirements preseason or inseason. If consistent with the FMP, Magnuson-Stevens Act, and other applicable law, NMFS may approve and implement a Council recommended SFFT requirement through a routine inseason action as described in Sections II and III.A above.

When deciding whether to recommend SFFT requirements, consistent with the FMP, the Council will consider environmental impacts, including economic impacts, and public comment via the Council process. Depending on the circumstances, NMFS may require SFFT for a short period of time, such as the remainder of the fishing year, or maintain the requirements for a longer period of time, such as until lifted by a subsequent action. NMFS could require SFFT for bottom trawl vessels coastwide or require SFFT in one or more BACs. A Federal Register notice will announce the geographic boundaries (described with coordinates in codified regulations) of one or more BACs with SFFT requirements, the effective dates of the SFFT requirement, as well as the purpose and rationale. NMFS would also disseminate information on the SFFT requirement through public notices and on posting the West Coast Region website (see ADDRESSES for electronic access information).

NMFS proposes changes to the declaration report to allow NMFS Office of Law Enforcement (OLE) to sufficiently monitor and enforce SFFT requirements. In the list of potential gear type or sector/monitoring type declarations found at 50 CFR 660.13(d)(4)(iv)(A), NFMS proposes adding a declaration for “Limited entry selective flatfish trawl, shorebased IFQ” and modifying the existing “Limited entry bottom trawl, shorebased IFQ, not including demersal trawl” declaration to clarify that selective flatfish trawl gear is not included ( i.e., “Limited entry bottom trawl, shorebased IFQ, not including demersal trawl or selective flatfish trawl”). NMFS expects the addition of another declaration to the suite of available declarations would have negligible impact on a vessel's reporting burden.

The Biological Opinion analyzed the 3,500 Chinook salmon bycatch “reserve”, implemented through a prior rulemaking (83 FR 63970, December 12, 2018). Fishery sectors may access the reserve upon reaching their Chinook salmon bycatch guideline. Either the whiting or non-whiting sector, or both sectors, may access the reserve in a given year, but the reserve is limited to 3,500 Chinook salmon total. Accessing the reserve in three out of any five consecutive years will also trigger reinitiation of the ESA consultation. The reserve accounts for a scenario in which Chinook salmon bycatch increases unexpectedly. The reserve is not an entitlement or a de facto increase in the bycatch threshold. Rather, the reserve is a safety net to minimize disruption to the fishery when other actions already in effect to reduce bycatch are insufficient.

The Council deferred consideration of the regulations governing the reserve during the development the 2019-20 Pacific Coast groundfish harvest specifications and management measures (83 FR 63970, December 12, 2018) and instead chose to address the reserve in this action. This proposed rule would establish the rules or circumstances in which the whiting and non-whiting sectors can access the reserve. As described in the Biological Opinion, access to the reserve for additional Chinook salmon bycatch above the sector's guideline is not guaranteed. The Council recommended that a sector may only access the reserve if NMFS has implemented a routine management measure to minimize Chinook salmon bycatch in that sector prior to it reaching its Chinook salmon bycatch guideline. The Council recommended, and NMFS is proposing to implement, rules for accessing the reserve that hold the whiting and non-whiting sectors accountable for minimizing bycatch.

The Council recommended, and NMFS is proposing to implement, that the non-whiting sector may only access the reserve if NMFS has implemented a routine management measure ( i.e., BRA, BAC, or a SFFT gear requirement) to minimize Chinook salmon bycatch in the non-whiting sector prior to it reaching its Chinook salmon bycatch guideline. This requirement may be satisfied where NMFS has implemented a BAC for bottom trawl or midwater trawl fisheries, or an SFFT gear requirement for bottom trawl fisheries.

In contrast to the non-whiting sector, the Council recommended, and NMFS is proposing to implement, that each component of the sector ( i.e., the Mothership Cooperative Program, Catcher/processor Cooperative Program, and the Pacific whiting Shorebased IFQ fishery) may access to the reserve only if NMFS has implemented a routine management measure to minimize Chinook salmon bycatch for that component. This requirement may be satisfied through the implementation of a BRA, BAC, or Salmon Mitigation Plan (SMP) for the applicable component. Those vessels with an approved SMP (see Section V) would have access to the reserve without further action by NMFS. The Council recommended, and NMFS is proposing to implement, that vessels not party to an SMP may access the reserve only if NMFS has implemented a routine management measure ( e.g., BRA or BAC) to minimize Chinook salmon bycatch for those vessels.

As part of the rules for access to the reserve, the Council recommended, and NMFS is proposing to implement, automatic fishery closure thresholds. The Council may recommend a routine management measure ( e.g., BRA, BAC, or SFFT gear requirement) to minimize Chinook salmon bycatch in the groundfish fishery. If NMFS has not implemented a routine management measure to minimize Chinook salmon bycatch in the non-whiting sector, the non-whiting sector would close once the sector exceeds its Chinook salmon bycatch guideline of 5,500 Chinook salmon. NMFS would automatically close the MS Coop Program, C/P Coop Program, and the Pacific whiting IFQ fishery if NMFS has not implemented a routine management measure to minimize Chinook salmon bycatch ( i.e., BRAs, BACs, or a SFFT gear requirement) for that specific component of the whiting sector prior to the whiting sector exceeding its Chinook salmon bycatch guideline of 11,000 Chinook salmon. Those vessels with an approved SMP (see Section V) would be exempt from the 11,000 Chinook salmon bycatch guideline closure threshold condition that requires NMFS to close a specific component of the whiting sector if NMFS has not implemented a routine management measure to minimize Chinook salmon bycatch. Therefore, these vessels would have access to the reserve without further action by NMFS. The entire whiting sector, including those with an approved SMP, would close if the non-whiting sector has caught its 5,500 Chinook salmon bycatch guideline and 3,500 Chinook salmon from the bycatch reserve. Table 2 summarizes the proposed automatic fishery closure thresholds for the Council's recommended reserve access rules that NMFS is proposing to implement.

This proposed rule would allow a Pacific whiting sector cooperative or group of vessels to develop a Salmon Mitigation Plan (SMP) for NMFS approval. The SMP is a voluntary agreement by a cooperative or group of vessels in the Pacific whiting fishery Mothership (MS) Coop Program, Catcher/processor (C/P) Coop Program, or Pacific whiting Shorebased IFQ fishery to manage Chinook salmon bycatch.

The at-sea and shorebased whiting cooperatives have developed a self-management system that governs their effort and is based on targeting whiting while minimizing incidental bycatch, including salmon. At present, tools employed by the cooperatives include information sharing, area closures, movement rules, salmon excluders, and internal Chinook salmon guidelines. These tools make the cooperative structure uniquely effective at bycatch avoidance and reduction. Additionally, the cooperative governance system requires vessels to abide by the cooperative's rules, and, if warranted based on those rules, the cooperative can implement vessel-level accountability measures. This system allows the industry to rapidly mitigate bycatch concerns through a suite of bycatch avoidance methods.

NMFS expects the SMP to promote reductions in Chinook salmon bycatch relative to what would have occurred in the absence of an SMP because the SMP will require bycatch minimization measures for all vessels party to that SMP. Therefore, NMFS approval of an SMP would give those vessels party to the SMP access to the Chinook salmon bycatch reserve. Additionally, vessels that are party to an approved SMP would have access to the reserve regardless of NMFS implementing other inseason measures to minimize bycatch, such as BACs. Vessels that are party to an approved SMP may fish into the reserve when the non-whiting sector has not used the full reserve and NMFS has closed the whiting sector on the basis that it has reached 11,000 Chinook bycatch.

Individual vessels would not be eligible to submit an SMP for approval. MS and C/P vessels receive permits from NMFS to operate as cooperatives. Vessels in the Pacific whiting Shorebased IFQ fishery do not receive cooperative permits like the MS or C/P cooperatives. However, participants in the Pacific whiting Shorebased IFQ fishery may form groups around common goals such as managing bycatch. NMFS is aware of one group, the Shorebased Whiting Cooperative, which operates in this way.

Under this proposed rule no vessel may join or leave an SMP after it is approved. Therefore, those vessels party to the SMP would be committed to follow the SMP provisions for the year in which it is approved. NMFS proposes this condition to: (1) Maximize the potential salmon conservation benefits of an SMP; (2) prevent vessels that did not follow the SMP provisions throughout the year from receiving the benefit of access into the reserve on the basis of the SMP; and (3) ensure NMFS can sufficiently monitor and enforce a BAC from which vessels with an approved SMP are exempt. We specifically seek comment and information related to this measure.

In recommending the SMP measures, the Council provided, and NMFS is proposing to implement, an additional way to allow groups of Pacific whiting vessels to access the reserve. The Council limited SMP submissions to cooperatives or other groups of vessels because of concerns regarding the enforceability of plans from individual whiting vessels. The Council noted that other groups would have the potential to employ a robust management system similar to that employed by the existing whiting cooperatives. The Council did not recommend a minimum number of vessels in an SMP. In order to improve the clarity of the regulations, NMFS proposes a three-vessel minimum for an approved SMP. NMFS proposes that an SMP would need to have at least three vessels to ensure the robust management and accountability system envisioned by the Council. We specifically request comment and information related to specifying a minimum number of vessels for an SMP.

The SMP must detail how those vessels party to the SMP would avoid and minimize Chinook salmon bycatch, including the tools they would employ. The SMP must contain the names and signatures of the owner or representative for each vessel that is party to the SMP. The SMP must designate a representative to serve as the SMP point of contact with NMFS and the Council, and to submit the SMP proposal, any amendments, and post-season report. The SMP must also contain a compliance agreement in which all parties to the SMP agree to voluntarily comply with all the provisions of the SMP.

Consistent with the dates for MS and C/P cooperative permit and agreement submission, applicants would submit proposed SMPs to NMFS between February 1 and March 31. An SMP would expire on December 31 of the year in which NMFS approved it. Given the timing of this rulemaking, NMFS anticipates it would start to accept and evaluate SMP proposals beginning in 2021.

NMFS would approve a proposed SMP if the proposal contains the required contents. NMFS would disapprove a proposed SMP if it does not contain the required contents. If NMFS makes an initial administrative determination (IAD) to disapprove the proposed SMP, the applicant may appeal. Any appeal under the SMP program would be processed by the NOAA Fisheries National Appeals Office.

An amendment to an approved SMP may be submitted to NMFS at any time during the year in which the SMP is valid. NMFS would review the amendment to ensure it contains the required SMP contents. An amendment to an approved SMP would be effective upon written notification of approval by NMFS to the designated SMP representative.

Those vessels party to the SMP would commit to voluntarily comply with the provisions of the SMP. The Council would evaluate Chinook salmon bycatch levels and adherence to SMP provisions by those vessels party to the SMP, as needed, during the inseason review process at Council meetings. In recommending and implementing a routine management measure to minimize Chinook salmon bycatch, the Council and NMFS would specifically state whether the measure would apply to vessels party to an approved SMP. The Council may choose to exempt vessels fishing under an approved SMP from any additional salmon bycatch minimization measure recommendation. If the SMP measures are not sufficient in minimizing salmon bycatch, as determined by the Council during inseason review at regular Council meetings, the Council could recommend that NMFS implement additional salmon bycatch minimization measures ( i.e., BRAs or BACs) that would apply to those vessels party to an approved SMP even if those vessels had access to the reserve through the SMP. For example, NMFS may implement a BAC for all whiting sector vessels, including those with an approved SMP, if the whiting sector were approaching the Chinook salmon bycatch guideline and the Council had determined SMP measures were not sufficiently minimizing salmon bycatch.

By using the existing declarations and procedures, as well as a list of vessels with an approved SMP, NMFS OLE anticipates it could sufficiently monitor for unauthorized fishing vessels within the boundaries of a BAC that exempts vessels with an approved SMP.

The Council also recommended, and NMFS is proposing to implement, an SMP post-season report as a necessary component of the SMP measures. The post-season report would allow NMFS and the Council to monitor and assess Chinook salmon bycatch minimization efforts by vessels party to the SMP. This post-season report, and specifically information on the effectiveness of the bycatch avoidance measures, would also help NMFS comply with term and condition 6.a.iii of the Biological Opinion. This term and condition requires that NMFS produce an annual report summarizing bycatch reduction measures used and their effectiveness.

The designated SMP representative would be required to provide an annual post-season report to the Council and NMFS no later than March 31 of the year following the year in which the SMP was valid. The report would describe the group's use of Chinook salmon bycatch avoidance measures and an evaluation of the effectiveness of those measures. The report would also describe any amendments to the terms of the SMP that NMFS approved during that fishing year and the reasons that the group amended the SMP.

This proposed rule would establish automatic actions that would close all trawl fisheries if Chinook salmon bycatch exceeds 19,500 fish in the whiting and non-whiting sectors, and would close non-whiting trawl fisheries if Chinook salmon bycatch exceeds 8,500 fish in the non-whiting sector. The closures would ensure that 500 Chinook salmon are available for bycatch in fixed gear and select recreational fisheries, so those fisheries could continue to operate in years of high Chinook salmon bycatch in the trawl fishery. Ensuring the availability of 500 Chinook salmon would cover the worst-case scenario for Chinook salmon bycatch by fixed gear and recreational fisheries in a single year. The 2017 Biological Opinion estimated the fixed gear and recreational fisheries would catch a maximum of 154 Chinook salmon annually. The Biological Opinion also analyzed an additional buffer of 250 Chinook salmon, resulting in an estimated annual maximum of 404 Chinook salmon caught in these fisheries. The Council's Groundfish Management Team (GMT) suggested that a fixed amount of 500 Chinook salmon be available annually for fixed gear and select recreational fisheries as it should be able to account for potential bycatch in these fisheries without being constraining (Agenda Item G.8.a, Supplemental GMT Report 1, November 2018). For catch accounting purposes, the Chinook salmon bycatch from Pacific Coast treaty Indian fisheries would count towards the applicable whiting or non-whiting sector bycatch guideline. However, Pacific Coast treaty Indian fisheries would not close until the existing 20,000 Chinook salmon total fishery limit was reached.

The proposed action would not change any of the existing closure thresholds established in the 2019-20 Pacific Coast groundfish harvest specifications and management measures (83 FR. 63970, December 12, 2018). The closure thresholds (bycatch guideline plus reserve) for the whiting and non-whiting sectors would remain at 14,500 Chinook salmon for the whiting sector and 9,000 Chinook salmon for the non-whiting sector, and a total closure of all groundfish fisheries at 20,000 Chinook salmon. The Council noted the existing fishery closure thresholds and inseason processes would be sufficient to manage to the Chinook salmon bycatch guidelines. However, the Council also recognized the importance of protecting fixed-gear and recreational fisheries from potential closure in years of high non-whiting trawl Chinook salmon bycatch. Therefore, the Council recommended, and NMFS is proposing to implement, closure thresholds for trawl fisheries. Table 3 summarizes the proposed closure thresholds for trawl fisheries.

Table 4 summarizes the existing and proposed groundfish fishery closures in response to Chinook salmon bycatch. The closures described in the table do not apply to Pacific Coast treaty Indian fisheries except for the existing threshold closing all groundfish fisheries, including Pacific Coast treaty Indian fisheries, if Chinook salmon bycatch in the groundfish fishery exceeds 20,000 fish. However, for catch accounting purposes, the Chinook salmon bycatch from Pacific Coast treaty Indian fisheries would count towards the applicable whiting or non-whiting sector bycatch guideline. Each component of the whiting sector (Pacific whiting IFQ fishery, MS Coop Program and C/P Coop Program) would be closed when Chinook salmon bycatch exceeds 11,000 Chinook salmon if NMFS has not implemented a routine management measure ( i.e., BRA, BAC, or a SFFT gear requirement) to minimize Chinook salmon bycatch for that individual component of the whiting sector. The whiting sector closure at 11,000 Chinook salmon would not apply to those vessels that are parties to an approved SMP, unless the non-whiting sector has caught the entire 3,500 Chinook salmon bycatch reserve.

The additional management tools in the proposed action would provide NMFS with more flexibility to effectively minimize incidental Chinook and coho salmon bycatch in the Pacific coast groundfish fishery (Sections 3.6.1.2.1, 3.6.2.2.1, and 3.6.3.4.1 of the Analysis). The effects of the proposed rule on Chinook and coho salmon overlap. Therefore, we examine these species together in this analysis. BACs, including the extension, could close “hot spot” areas, thus reducing the risk of bycatch where Chinook and/or coho salmon presence is highest. SFFT gear requirements would be a beneficial tool to reduce incidental Chinook and coho salmon bycatch in the bottom trawl fishery.

Given that the SMPs would formalize the voluntary salmon bycatch mitigation measures taken by the cooperatives, the proposed rule would increase effectiveness in salmon bycatch minimization (Section 3.6.4.2.4 of the Analysis).

The proposed changes to trawl fishery closures would be an appropriate and important tool to keep catch below the bycatch guidelines.

The proposed rules for access to the Chinook salmon reserve would not minimize salmon bycatch in the fishery directly; however, indirectly they could result in application of minimization measures that could reduce salmon bycatch ( i.e., BAC, BRA, or SFFT gear requirement). This proposed rule could therefore reduce the incidence of a sector exceeding its bycatch guideline and accessing the reserve (Section 3.6.6.2.1 of the Analysis).

Under this proposed rule, NMFS would have additional salmon bycatch management tools. The proposed action would not implement individual BACs or SFFT gear requirements. Implementing a BAC or SFFT gear requirement could result in a range of costs to industry, depending on the timing, location, and duration of the closure or gear restriction. Compared to a BRA, a BAC or SFFT gear requirement would provide a more flexible tool in minimizing salmon bycatch. For example, a BAC could potentially close a small area with anticipated high salmon bycatch while allowing industry to continue to fish in lower bycatch areas. Were an SFFT gear requirement implemented, vessels without an SFFT net could incur costs associated with either purchasing an SFFT net ($18,000 to $25,000 per single SFFT net), or moving to fish outside the closed area with a different net type (Section 3.6.1.2.2, 3.6.2.2.2, and 3.6.3.4.2 of the Analysis).

The proposed trawl fishery closure thresholds are not expected to diminish opportunity in the trawl fisheries. Salmon bycatch in the trawl fisheries has fallen steadily over the past 15 years and bycatch is expected to remain relatively low compared to the proposed closure thresholds. The fixed gear and the recreational fisheries would benefit from this measure to ensure 500 Chinook salmon are available for these fisheries as they could continue to operate even in years of high non-whiting trawl Chinook salmon bycatch (Section 3.6.4.2.5 of the Analysis).

The proposed rules for accessing the Chinook salmon bycatch reserve require NMFS to implement a routine management measure (or approve an SMP) to minimize Chinook salmon bycatch for the non-whiting sector or component of the whiting sector before granting those sectors access to the reserve. The costs to industry would be realized through implementation of the associated bycatch minimization measure (Section 3.6.6.2.2 of the Analysis) contained in the routine management measure action. Should Pacific whiting cooperatives or other groups choose to submit an SMP, they would incur minor costs associated with compiling the SMP proposal and post-season report (Section 3.6.4.2.5 of the Analysis).

This rule also proposes a minor technical correction related to the definition of “Mothership Coop Program” at § 660.111. An inaccurate amendatory instruction (80 FR 77271, December 14, 2015) resulted in a duplicative definition with an incorrect title. This rule proposes to remove the definition for “Mothership Coop Program or MS Coop Program”, and maintain the definition for “Mothership (MS) Coop Program or MS sector” at § 660.111. This change is not substantive, as it removes a redundant definition.

Pursuant to section 304(b)(1)(A) and 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined this rule is consistent with the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

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

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

An initial regulatory flexibility analysis (IRFA) was prepared for this action, as required by section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 603). The IRFA describes the economic impact that this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action is contained in the SUMMARY section and at the beginning of the SUPPLEMENTARY INFORMATION section of the preamble. A summary of the IRFA follows. A copy of the IRFA is available from NMFS (see ADDRESSES for electronic access information).

When an agency proposes regulations, the RFA requires the agency to prepare and make available for public comment an IRFA that describes the impact on small businesses, non-profit enterprises, local governments, and other small entities. The IRFA is to aid the agency in considering all reasonable regulatory alternatives that would minimize the economic impact on affected small entities.

The RFA (5 U.S.C. 601 et seq. ) requires government agencies to assess the effects that regulatory alternatives would have on small entities, defined as any business/organization independently owned and operated and not dominant in its field of operation (including its affiliates). A small harvesting business has combined annual receipts of $11 million or less for all affiliated operations worldwide. A small fish-processing business is one that employs 750 or fewer persons for all affiliated operations worldwide.

For marinas and charter/party boats, a small business is one that has annual receipts not in excess of $7.5 million. A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide. A nonprofit organization is determined to be “not dominant in its field of operation” if it is considered small under one of the following Small Business Administration (SBA) size standards: Environmental, conservation, or professional organizations are considered small if they have combined annual receipts of $15 million or less, and other organizations are considered small if they have combined annual receipts of $7.5 million or less.

The RFA defines small governmental jurisdictions as governments of cities, counties, towns, townships, villages, school districts, or special districts with populations of less than 50,000.

This proposed rule would directly affect all commercial groundfish vessels and select recreational groundfish vessels. In the C/P sector, all three permit owners (owning the collective 10 permits) self-reported as large entities. For the MS sector, of the 31 MS/Catcher Vessel endorsed permits, 25 permits and their associated vessels are registered as small entities. Nine permits held by seven entities self-reported as large, with one entity owning three permits. In order to fish in the shoreside whiting or midwater trawl sector, a limited entry trawl endorsed permit is required. Of the 164 limited entry trawl endorsed permits (excluding those with a C/P endorsement), 110 permit owners holding 129 permits classified themselves as small entities. The average small entity owns 1.17 permits with 15 entities owning more than one permit. However, given that between 23 and 26 vessels have participated in the shoreside whiting fishery in the last three years and the same range of vessels in the midwater rockfish fisheries, this is an overestimate of the potential impacted number of small entities. Additionally, it is likely some entities own more than one vessel. From 2016-2018, there were 67-74 bottom trawl vessels.

Since 2016-18, there have been 17 to 23 fixed gear participants in the IFQ fishery, 136 to 144 in the limited entry fixed gear fisheries, and 746 to 769 in the open access fisheries. Of those fixed gear IFQ participants, there have been between 17 and 19 permits used to land groundfish. In 2018, an estimated 13 of these trawl endorsed permits were classified as small entities (based on 2019 declarations). In 2019, 208 of the 239 fixed gear endorsed limited entry permits (required to fish in the primary or limited entry fixed gear sectors) reported as small entities. For the permits that reported as large entities, one entity owned three permits and three owned two permits. All open access vessels are assumed to be small entities, with ex-vessel revenues for all landings averaging $8,966 in 2018.

For the recreational sector, all charter businesses are designated as small entities. The portion of the recreational fishery that would be affected by this action are those groundfish trips occurring outside of the salmon season. Therefore, the estimates provided here may be an overestimate of the actual number of entities or trips that may be affected depending on when the salmon seasons are set and when a closure could occur. For Washington, there were 55 unique charter vessels that took 20,833 bottomfish trips in 2018. In 2018, there were 48 charter vessels that took an estimated 19,208 angler trips in Oregon. However, this estimate does not include guide boats that do not have an official office. In California, there were approximately 290 vessels targeting bottomfish or lingcod, according to logbook submissions, that took an estimated 504,118 angler trips.

The economic effects of the proposed rule are described in Section 4.6 of the Analysis. The economic effects of the additional management tools to minimize ESA-listed salmon bycatch would depend on the extent and timing of the measure. It is likely that there would be some negative economic impact on small entities with the implementation of a BAC or SFFT gear requirement. Vessels would potentially have to move from closed fishing locations, which may decrease the effectiveness at accessing target species.

Cooperatives or other groups of vessels in the Pacific whiting C/P, MS, and shoreside sectors may incur additional administrative costs associated with developing and submitting the SMP and the post-season report. Because we estimate the reporting burden to average 10 hours per response for the SMP proposal, and 8 hours per response for the SMP post-season report, we do not expect the reporting requirement to impact profitability of operations for small or large entities.

Economic impacts to small entities affected by the trawl closure thresholds would depend on the time that the automatic closure points were reached. Table 3.15 of the Analysis details the potential estimated losses for fisheries by month. If the trawl sectors were to unexpectedly close the recreational sectors in November, this could be a loss of $27.4 million in revenue.

There are no direct costs associated with the proposed rules for access to the reserve. However, implementation of any inseason bycatch minimization measures prior to a sector accessing the reserve would have associated economic impacts. For example, if there were unexpected high bycatch in the non- whiting sector, NMFS would have to implement bycatch minimization measures such as a BAC prior to that sector accessing the reserve. The associated impacts would be those described above for the additional bycatch minimization tools.

Additional reporting or recordkeeping may be required of the regulated entities under the proposed action. Cooperatives or other groups of Pacific whiting vessels would have new reporting requirements under the proposed action if they chose to submit an SMP to NMFS for approval. The cooperatives or other groups of vessels with an approved SMP would also be required to submit a post-season report to the Council and NMFS. The proposed action adds a declaration to the suite of available declarations to allow NMFS OLE to sufficiently monitor and enforce SFFT gear requirements. This change would have negligible impact on a vessel's reporting burden.

The proposed regulations do not create overlapping regulations with any state regulations or other Federal laws.

There are no significant alternatives to the proposed rule that would accomplish the stated objectives in a way that would reduce economic impacts of the proposed rule on small entities. This action allows NMFS to exempt any take of listed species from the prohibitions that would otherwise be imposed by Section 9 of the ESA by complying with the terms and conditions in the 2017 NMFS Biological Opinion, which specify certain measures for the Council and NMFS to develop and implement, or consider to minimize bycatch of ESA-listed Chinook and coho salmon. For that reason, there are no significant alternatives to the proposed action evaluated in this IRFA.

This proposed rule contains a new collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). NMFS has submitted this proposed requirement to OMB for approval. The following public reporting burden estimates for the submission of SMPs and post-season reports under this proposed rule include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information. Public reporting burden is estimated to average 10 hours per response for the SMP proposal, 3 hours per response for an SMP amendment, 6 hours per response for an administrative appeal of a disapproved SMP, and 8 hours per response for the SMP post-season report.

Public comment is sought regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Submit comments on these or any other aspects of the collection of information to NMFS West Coast Region (see ADDRESSES ) and at www.reginfo.gov/public/do/PRAMain.

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

For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:

The revisions, republication and addition read as follows: