In FR Doc. 2020-21774, appearing on page 72899 in the Federal Register of November 16, 2020, the following corrections are made:

On December 6, 2013, Boeing applied for an amendment to Type Certificate No. T00001SE to include the new 777-9 airplane. The application date was extended to March 30, 2016, at Boeing's request. The Boeing Model 777-9 airplane, which is a derivative of the Boeing Model 777 airplane currently approved under Type Certificate No. T00001SE, is a twin-engine, transport-category airplane with seating for 495 passengers, and a maximum takeoff weight of 775,000 lbs.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the 777-9 airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. T00001SE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 777-9 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 777-9 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The Boeing Model 777-9 airplane will incorporate the following novel or unusual design features:

An overhead flightcrew rest (OFCR) compartment occupiable during taxi, takeoff, and landing.

Crew rest compartments have been previously installed and certificated on several Boeing airplane models in locations such as in the main passenger seating area, the overhead space above the main passenger-cabin seating area, and below the passenger-cabin seating area within the cargo compartment. In each case, the Administrator determined that the applicable regulations ( i.e., 14 CFR part 25) did not provide all of the necessary requirements, because each installation had unique features by virtue of its design, location, and use on the airplane.

For Boeing Model 777 airplanes, the FAA issued Special Conditions No. 25-260-SC, dated April 14, 2004, for OFCR compartments allowed to be occupied during TT&L, as well as during flight. However, after issuance of Special Conditions No. 25-260-SC, the FAA issued Special Conditions No. 25-418-SC for the Boeing Model 787-8 airplane, for the same novel design feature, with changes to better address oxygen systems and fire suppressors. Those special conditions reflected the methodology necessary to provide an equivalent level of safety for remote OFCR compartments. Therefore, new special conditions are issued for this design feature on Boeing Model 777-9 airplanes, in lieu of Special Conditions No. 25-260-SC.

For the Boeing Model 777-9 airplane, the OFCR compartment is located in the overhead space above the main passenger-cabin seating area immediately aft of the first pair of main-deck emergency exits (Door 1). The compartment includes two private berths and up to two seats. Occupancy of the compartment will be limited to a maximum of four trained crewmembers during flight, and two trained flightcrew members, one in each seat, during TT&L. The compartment will be accessed from the main deck by stairs through a vestibule. In addition, a secondary evacuation route, which opens directly into the main passenger seating area, will be available as an alternate route for evacuating occupants of the compartment. A smoke-detection system and an oxygen system will be provided in the compartment. Other optional features, such as a sink with cold-drink stowage or a lavatory, may be provided as well.

This Boeing Model 777-9 airplane OFCR compartment is novel or unusual to part 25 due to its design, location, and use on the airplane. This compartment is particularly novel or unusual in that it is located in the overhead area of the passenger compartment, and will be occupied by trained flightcrew during TT&L. Due to the novel or unusual features associated with the installation of this compartment, special conditions are considered necessary to provide a level of safety equal to that established by the airworthiness regulations.

The special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

These special conditions establish requirements for OFCR-compartment design approvals administered by the FAA's Aircraft Certification Service. Before operational use of an OFCR compartment, the FAA's Flight Standards Service must evaluate and approve the “basic suitability” of the compartment for crew occupation. Additionally, if an operator wishes to use an OFCR compartment as “sleeping quarters,” the compartment must undergo an additional evaluation and approval (reference 14 CFR 121.485(a), 121.523(b), and 135.269(b)(5)). Compliance with these special conditions does not ensure that the applicant has demonstrated compliance with the requirements of parts 121 or 135.

To obtain an operational evaluation, the type certificate holder must contact the appropriate aircraft evaluation group (AEG) in the Flight Standards Service and request a “basic suitability” evaluation or a “sleeping quarters” evaluation of its OFCR compartment. The results of these evaluations should be documented in a Boeing Model 777-9 airplane flight standardization board (FSB) report appendix. Individual operators may reference these standardized evaluations in discussions with their FAA principal operating inspector as the basis for an operational approval, in lieu of an on-site operational evaluation.

Any changes to the approved OFCR compartment configuration that affect crewmember emergency egress, or any other procedures affecting safety of the occupying crewmembers or related emergency training, will require re-evaluation and approval. The applicant for an OFCR compartment design change that affects egress, safety procedures, or training is responsible for notifying the FAA's AEG that a new compartment evaluation is required. The results of a reevaluation should also be documented in a Boeing Model 777-9 airplane FSB report appendix.

Procedures must be developed to ensure that a crewmember, acting as firefighter, when entering the OFCR compartment through the stairway or vestibule to fight a fire, will examine the stairway or vestibule, and the adjacent galley or lavatory areas (if installed), for the source of the fire before entering the remaining areas of the compartment. This is intended to ensure that the source of the fire is not between the crewmember and the entrance to the OFCR compartment. If a fire source is not immediately evident to the firefighter, the firefighter should check for potential fire sources at areas closest to the OFCR compartment entrance first, then proceed to check areas in such a manner that the fire source, when found, will not be between the firefighter and their means of escape from the compartment. Procedures describing methods for searching the OFCR compartment for fire source(s) must be transmitted to operators for incorporation into their training programs and appropriate operational manuals.

Installation of an OFCR compartment that can be occupied during TT&L by flightcrew is unusual. Appropriate information must be provided to airport fire-rescue personnel so that they understand that this remote compartment may be occupied during an emergency landing. The applicant must provide rescue-crew training materials to the local FAA Airports Division, Safety and Standards Branch, to address this issue. The FAA Airports Division, Safety and Standards Branch, will ensure that these materials are distributed to appropriate airports, domestic and foreign. Special conditions are not considered appropriate to address this issue.

These special conditions apply to OFCR compartments that are occupiable during TT&L and are installed immediately aft of the Door 1 exits on Boeing Model 777-9 airplanes. These special conditions for Boeing Model 777-9 airplanes supplement 14 CFR part 25. Except as noted below, these special conditions for Boeing Model 777-9 airplanes are identical to Boeing Model 777 airplane Special Conditions No. 25-260-SC.

Conditions 6 and 16 contain requirements for the exit signs that must be provided in the OFCR compartment. Symbols that satisfy the equivalent-level-of-safety finding established for Boeing Model 777-9 airplanes may be used in lieu of the text required by § 25.812(b)(1)(i). The FAA expects that the meaning of any symbolic exit sign will be reinforced as a part of crewmember training in evacuation procedures.

Condition 15 contains requirements for supplemental oxygen systems. Earlier Special Conditions No. 25-260-SC for Boeing Model 777-9 airplanes required that each berth be equipped with two oxygen masks. This was intended to address the case where a person not in a berth was moving around within the flightcrew rest compartment and needed quick access to an oxygen mask. For Boeing Model 777-9 airplanes, the requirement to have two masks per berth may not always meet the objective of having masks available to persons who are in transition within the compartment. Therefore, the wording of this condition has been modified to better state the objective, rather than specifying a two-masks-per-berth requirement. In addition, the requirement to have adequate illumination to retrieve an oxygen mask, while implied previously, is made explicit in these special conditions.

Condition 18 contains the requirements for materials used in the construction of the OFCR compartment. Special Conditions No. 25-260-SC stated that § 25.853, as amended by Amendment 25-83, is the appropriate regulation. Section 25.853 has since been further amended, and these special conditions reference the latest amendment level for § 25.853, Amendment 25-116.

Compliance with these special conditions does not relieve the applicant from the existing airplane certification-basis requirements. One particular area of concern is that installation of OFCR compartments changes the compartment volume in the overhead area of the airplane. The applicant must comply with the pressurized compartment loads requirements of § 25.365(e), (f), and (g) for the OFCR compartment, as well as for any other airplane compartments the decompression characteristics of which are affected by the installation of an OFCR compartment.

Compliance with § 25.813, emergency-exit access requirements, must be demonstrated for all phases of flight during which occupants will be present.

The configuration includes a seat installed adjacent to the OFCR compartment exit, with the compartment occupiable during TT&L. Note that the emergency-landing conditions requirements of §§ 25.561(d) and 25.562(c)(8) apply to this configuration. Deformations resulting from required static and dynamic structural tests must not impede rapid evacuation of the OFCR compartment occupants. Seat deformations must not prevent opening of the secondary escape hatch or rapid evacuation through the secondary escape route.

Section 25.785(h)(2) mandates that the flight attendant seats required by the operating rules be located in a position that provides a direct view of the cabin area for which the flight attendant is responsible. Because the OFCR compartment will be occupied only by trained crewmembers, the FAA does not consider this requirement applicable to the seating area in the OFCR compartment.

Section 25.787(a) requires each stowage compartment in the passenger cabin, except for underseat and overhead stowage compartments for passenger convenience, to be completely enclosed. This requirement does not apply to the flight deck, because flightcrew members must be able to quickly access items to better perform their duties. Flightcrew members occupying the OFCR compartment will not be performing flight-deck duties however. Therefore, stowage compartments in the OFCR compartment, except for underseat compartments for occupant convenience, should be completely enclosed. This will provide occupants of the OFCR compartment a similar level of safety to that provided to passengers on the main deck. Condition 20 contains this requirement.

Section 25.811(c) requires that means be provided to assist occupants in locating the exits in conditions of dense smoke. Section 25.812(e) requires floor-proximity emergency-escape path marking to provide guidance for passengers when all sources of illumination above 4 feet from the cabin aisle floor are totally obscured. The FAA considers that the current OFCR compartment design is sufficient in regard to these regulations. The two OFCR compartment seats are only a couple of steps away from the stairway, and when a trained flightcrew member is at the top of the stairway, the stairway itself will guide them to the main deck. When the crewmember is on the main deck, floor proximity lighting and exit-marker signs, which are less than 4 feet above the floor, are provided.

Section 25.813(e) prohibits installation of interior doors between passenger compartments, but the FAA has historically found flightcrew rest-compartment doors to be acceptable, because flightcrew rest compartments are not passenger compartments. Conditions 2 and 16 provide requirements for flightcrew rest-compartment doors, conditions that are considered to provide an appropriate level of safety to OFCR compartment occupants.

Sections 25.1443, 25.1445, and 25.1447 describe oxygen requirements for flightcrew, passengers, and cabin attendants. Flightcrew members occupying the OFCR compartment are not on duty, and therefore are considered passengers in determining compliance with these oxygen regulations.

The FAA issued Notice of Proposed Special Conditions No. 25-20-07-SC for the Boeing Model 777-9 airplane, which was published in the Federal Register on June 30, 2020 (85 FR 39100). The FAA received responses from three commenters.

The Air Line Pilots Association (ALPA) believes the special conditions contradict exemptions for mini-suites that prohibit the occupation of the OFCR during TT&L, and suggests that the special conditions be modified to provide consideration for Exemption No. 17634A, including a prohibition of occupancy of the OFCR during TT&L for airplanes fitted with high-walled mini-suites, as well as a requirement of applicable placarding to be visibly installed in the OFCR, and related limitations be published within the AFM.

The FAA partially agrees with this comment. The FAA's intends to prohibit occupancy of an OFCR during TT&L should any egress path from the crew rest fall into a mini-suite on the main deck as stated in FAA Exemption No. 17634A. However, such a limitation is not established solely by the installation of an OCFR. The necessity of such a limitation would be established by the installation of a mini-suite and the subsequent assessment of the egress paths from the OFCR relative to the mini-suite location. For this reason, and the because the subject of these special conditions is the OFCR and not mini-suite installations, the prohibition of occupancy of the OFCR during TT&L when mini-suites are installed will not be restated in these special conditions. The FAA does agree, however, that the special conditions should acknowledge that occupancy during TT&L may be further restricted for purposes of maintaining consistency with related exemptions. As such, these special conditions have been revised to include Condition 1.d.

Boeing recommends revising the title of the special conditions as follows:

Special Conditions: Boeing Commercial Airplanes Model 777-9 Airplane; Overhead Flightcrew Rest Compartment.

The FAA does not agree with the proposed change because the title, as written, differentiates the scope of these special conditions from other special conditions issued for Boeing Model 777 series airplanes with OFCR that are not to be occupied for taxi, takeoff, and landing, as is the case with Special Conditions No. 25-230-SC. These special conditions allow occupancy of the OFCR during taxi, takeoff, and landing, but there is no condition that requires occupancy of the OFCR such that it is permissible for the rest to be unoccupied during taxi, takeoff, and landing.

Boeing further comments that the Compliance by Inspection in Condition 4.a. states, in part,

Because a berth is required to have two separate exits, a fire within a berth that blocks an occupant of that berth from only one exit or the other need not be considered.

Boeing believes that the proposed wording implies a requirement for two exits out of each berth (with berth meaning each bunk), which they further believe is not the intent of this condition, recommending replacing the proposed text with the following:

A fire within a berth that only blocks the occupant of that berth from exiting the berth need not be considered.

The FAA recognizes that the current wording is cause for confusion and agrees with the recommended wording, which is consistent with Boeing Model 787 airplane Special Conditions No. 25-418-SC.

An individual commenter stated that Condition 1.b. appears to be inconsistent with Condition 1.a.iv. concerning smoking restriction and ashtray requirements, and recommends deleting Condition 1.b.

The FAA does not agree with the recommendation to remove Condition 1.b. Even though condition 1.a.iv prohibits smoking in the OFCR, the requirement of one ashtray on both the inside and outside of the OFCR entrance is a measure that is intended to further discourage smoking in the OFCR and to prevent improper disposal of smoking materials in the OFCR by providing a suitable disposal receptacle.

The commenter notes that Condition 15.d requires that the supplemental oxygen system “provide an aural and visual alert to warn occupants of the OFCR compartment to don oxygen masks in the event of decompression,” for each berthing area, to alert sleeping crewmembers. The aural alert is required to sound continuously for a period no less than 5 minutes or “until a reset switch within the OFCR compartment is activated.”

The commenter recommends providing a means to prevent accidental berth-occupant deactivation of the alerting system, to prevent deactivation of the oxygen-mask-alert reset switch due to turbulence or movement of a sleeping occupant. The commenter recommends that the reset-alarm switch be located away from the normal reach and position of an occupant in the berthing area, and that a physical guard, or similar means to prevent inadvertent deactivation, be provided.

While the FAA recognizes that an alarm-reset switch may be subject to inadvertent activation if not optimally placed, the FAA does not agree that an additional requirement for the location or design of the alert-reset switch is necessary. The reset switch in the OFCR is out of reach of the berth occupants and is placed out of the way of normal movement within the compartment, as dictated by the limited space within the OFCR, as well as placement of the OFCR interior features.

The commenter further states that crewmembers within the OFCR compartment should be provided immediate access to lifesaving equipment, such as personal flotation devices, adding that the special conditions do not appear to consider crew accessibility to such personal protective equipment.

The FAA agrees that crewmembers within the OFCR should be provided immediate access to personal flotation devices. However, the installation of flotation devices in the OFCR is not within the scope of these special conditions. Rather, the existing requirements for life-vest installations which address access of the life vest by OFCR occupants can be found in §§ 25.1411(f) and 25.1415(b). Other flotation means are addressed in 25.1415(e).

Except as discussed above, the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Boeing Model 777-9 airplane. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only a certain novel or unusual design feature on one airplane model. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 777-9 airplanes with an OFCR compartment installed adjacent to, or immediately aft of, the first pair of exits (Door 1).

1. During flight, occupancy of the OFCR compartment is limited to the total number of installed bunks and seats in the compartment, and that are approved to the maximum flight-loading conditions. During TT&L, occupancy of the OFCR compartment is limited to the total number of installed seats approved for the flight and ground-load conditions, and emergency-landing conditions. Therefore, the OFCR compartment is limited to a maximum of four crewmembers during flight, and two flightcrew members during TT&L.

a. Appropriate placards must be located inside and outside each entrance to the OFCR compartment to indicate:

i. Occupancy is limited to flightcrew members (pilots) during TT&L.

ii. The maximum number of crewmembers allowed during flight, and the maximum number of flightcrew members allowed during TT&L.

iii. Occupancy is restricted to crewmembers the pilot in command has determined to be both trained in the emergency procedures for the OFCR compartment and able to rapidly use the evacuation routes.

iv. Smoking is prohibited in the OFCR compartment.

v. Stowage in the OFCR compartment area is limited to crew personal luggage. The stowage of cargo or passenger baggage is not allowed.

b. At least one ashtray must be located on both the inside and the outside of any entrance to the OFCR compartment.

c. A limitation in the airplane flight manual must restrict occupancy to crewmembers the pilot in command has determined to be both trained in the emergency procedures for the OFCR compartment and able to rapidly use the evacuation routes of the OFCR compartment.

d. If mini-suites with doors are installed on the main deck beneath the OFCR, occupancy of the OFCR may be prohibited during TT&L due to the conditions of an exemption that allows installation of mini-suites. If occupancy of the OFCR during TT&L is further restricted by exemption, the placard required in Condition 1.a must reflect that occupancy of the OFCR is not allowed during TT&L in lieu of Condition 1.a.i, stating occupancy is limited to flightcrew members (pilots) during TT&L.

2. The following requirements are applicable to OFCR compartment doors:

a. A means must be provided for any door installed between the OFCR compartment and the passenger cabin to be opened quickly from inside the OFCR compartment, and when crowding from an emergency evacuation occurs at each side of the door.

b. Doors installed across emergency egress routes must have a means to latch them in the open position. The latching means must be able to withstand the loads imposed upon it when the door is subjected to the ultimate inertia forces, relative to the surrounding structure, listed in § 25.561(b).

c. A placard must be displayed in a conspicuous place on the outside of the entrance door of the OFCR compartment, and on any other door(s) installed across emergency egress routes of the OFCR compartment, requiring those doors to be latched open when the OFCR compartment is occupied during TT&L.

i. This requirement does not apply to emergency-escape hatches installed in the floor of the OFCR compartment.

ii. A placard must be displayed in a conspicuous place on the outside of the entrance door to the OFCR compartment, and that requires the compartment door to be closed and locked when it is not occupied.

iii. Procedures for meeting these requirements must be transmitted to the operator for incorporation into its training programs and appropriate operational manuals.

d. For all doors installed in the OFCR compartment, a means must be provided to prevent anyone from being trapped inside the OFCR compartment. If a locking mechanism is installed, it must be capable of being unlocked from the outside without the aid of special tools. The lock must not prevent opening from the inside of the OFCR compartment at any time.

3. In addition to the requirements of § 25.562 for seats that are occupiable during takeoff and landing, and restraint systems, the OFCR compartment structure must be compatible with the loads imposed by the seats as a result of the conditions specified in § 25.562(b).

4. At least two emergency evacuation routes must be available for use by each occupant of the OFCR compartment to rapidly evacuate to the main cabin. These evacuation routes must be able to be closed from the main passenger cabin after evacuation. In addition:

a. The routes must be located with sufficient separation within the OFCR compartment to minimize the possibility of an event either inside or outside of the OFCR compartment rendering both routes inoperative.

Compliance with requirements of Condition 4.a. of these special conditions may be shown by inspection or by analysis. Regardless of which method is used, the maximum acceptable distance between OFCR compartment exits is 60 feet.

Inspection may be used to show compliance with Condition 4.a. of these special conditions. An inspection finding that an OFCR compartment has evacuation routes located so that each occupant of the seats and berths has an unobstructed route to at least one of the OFCR compartment exits, regardless of the location of a fire, would be reason for a finding of compliance. A fire within a berth that only blocks the occupant of that berth from exiting the berth need not be considered. Therefore, OFCR compartment exits that are located at opposite ends ( i.e., adjacent to opposite-end walls) of the OFCR compartment would require no further review or analysis with regard to exit separation.

Analysis must show that the OFCR compartment configuration and interior features allow all occupants of the OFCR compartment to escape the compartment in the event of a hazard inside or outside of the compartment. Elements to consider in this evaluation are as follows:

i. Fire inside or outside the OFCR compartment, considered separately, and the design elements used to reduce the available fuel for the fire.

ii. Design elements used to reduce fire-ignition sources in the OFCR compartment.

iii. Distribution and quantity of emergency equipment within the OFCR compartment.

iv. Structural failure or deformation of components that could block access to the available evacuation routes ( e.g., seats, folding berths, contents of stowage compartments, etc.).

v. An incapacitated person blocking the evacuation routes.

vi. Any other foreseeable hazard not identified above that could cause the evacuation routes to be compromised.

Analysis must consider design features affecting access to the evacuation routes. Possibilities for design components affecting evacuation that should be considered include, but are not limited to, seat deformations (reference §§ 25.561(d) and 25.562(c)(8)), seat-back break-over, rigid structure that reduces access from one part of the compartment to another, and items known to be the cause of potential hazards. Factors that also should be considered are availability of emergency equipment to address fire hazards; availability of communications equipment; supplemental restraint devices to retain items of mass that, if broken loose, could hinder evacuation; and load-path isolation between components containing evacuation routes.

Analysis of fire threats should be used in determining placement of required fire extinguishers and protective breathing equipment (PBE). This analysis should consider the possibility of fire in any location in the OFCR compartment. The location and quantity of PBE equipment and fire extinguishers should allow occupants located in any approved seats or berths access to the equipment necessary to fight a fire in the OFCR compartment.

The intent of this condition is to provide sufficient exit-route separation. Therefore, the exit-separation analysis described above should not be used to approve OFCR-compartment exits that have less physical separation (measured between the centroid of each exit opening) than the minimums prescribed below, unless compensating features are identified and submitted to the FAA for evaluation and approval.

For an OFCR compartment with one exit located near the forward or aft end of the compartment (as measured by having the centroid of the exit opening within 20 percent of the forward or aft end of the total OFCR-compartment length), the exit separation from one exit to the other should not be less than 50 percent of the total OFCR compartment length.

For OFCR compartments with neither required OFCR compartment exit located near the forward or aft end of the compartment (as measured by not having the centroid of either exit opening within 20 percent of the forward or aft end of the total OFCR compartment length), the exit separation from one exit to the other should not be less than 30 percent of the total OFCR-compartment length.

b. The evacuation routes must be designed to minimize the possibility of blockage, which might result from fire, mechanical or structural failure, or persons standing below or against the OFCR-compartment exits. One of the two OFCR-compartment exits should not be located where normal movement or evacuation by passengers occurs (main aisle, cross aisle, or galley complex, for example) that would impede egress from the OFCR compartment. If an evacuation route is in an area where normal movement or evacuation of passengers occurs, it must be demonstrated that passengers would not impede egress to the main deck. If low headroom is at or near the evacuation route, provisions must be made to prevent or to protect occupants of the OFCR compartment from head injury. Use of evacuation routes must not depend on any powered device. If an OFCR-compartment exit is over an area of passenger seats, a maximum of five passengers may be displaced from their seats temporarily during the process of evacuating an incapacitated person(s). If such an evacuation procedure involves the evacuee stepping on seats, the seats must not be damaged to the extent that they would not be acceptable for occupancy during an emergency landing.

c. Emergency evacuation procedures, including procedures for emergency evacuation of an incapacitated occupant from the OFCR compartment, must be established. The applicant must transmit all of these procedures to the operator for incorporation into its training programs and appropriate operational manuals.

d. A limitation must be included in the airplane flight manual or other suitable means to require that crewmembers are trained in the use of the OFCR-compartment evacuation routes. This training must instruct crew to ensure that the OFCR compartment (including seats, doors, etc.) is in its proper TT&L configuration during TT&L.

e. In the event no flight attendant is present in the area around the door to the OFCR compartment, and also during an emergency, including an emergency evacuation, a means must be available to prevent passengers on the main deck from entering the OFCR compartment.

f. Doors or hatches separating the OFCR compartment from the main deck must not adversely affect evacuation of occupants on the main deck (slowing evacuation by encroaching into aisles, for example) or cause injury to those occupants during opening or while opened.

g. The means of opening doors and hatches to the OFCR compartment must be simple and obvious. The OFCR compartment doors and hatches must be able to be closed from the main passenger cabin.

5. A means must be available for evacuating an incapacitated person, representative of a 95th percentile male, from the OFCR compartment to the passenger cabin floor. Such an evacuation must be demonstrated for all evacuation routes. A crewmember (a total of one assistant within the OFCR compartment) may provide assistance in the evacuation. Additional assistance may be provided by up to three persons in the main passenger compartment. These additional assistants must be standing on the floor while providing assistance. For evacuation routes with stairways, the additional assistants may ascend up to one half the elevation change from the main deck to the OFCR compartment, or to the first landing, whichever is lower.

6. The following signs and placards must be provided in the OFCR compartment and they must meet the following criteria:

a. At least one exit sign, located near each OFCR compartment exit, meeting the emergency lighting requirements of § 25.812(b)(1)(i). One allowable exception would be a sign with reduced background area of no less than 5.3 square inches (excluding the letters), provided that it is installed so that the material surrounding the exit sign is light in color (white, cream, light beige, for example). If the material surrounding the exit sign is not light in color, a sign with a minimum of a one-inch-wide background border around the letters would be acceptable. Another allowable exception is a sign with a symbol that the FAA has determined to be equivalent for use as an exit sign in an OFCR compartment.

b. An appropriate placard located conspicuously on or near each OFCR-compartment door or hatch that defines the location and the operating instructions for access to and operation of the door or hatch.

c. Placards must be readable from a distance of 30 inches under emergency lighting conditions.

d. The door or hatch handles, and operating-instruction placards required by Condition 6.b. of these special conditions, must be illuminated to at least 160 microlamberts under emergency lighting conditions.

7. A means must be available, in the event of failure of the airplane main power system, or of the normal OFCR-compartment lighting system, for emergency illumination to be automatically provided for the OFCR compartment.

a. This emergency illumination must be powered independently of the main lighting system.

b. The sources of general cabin illumination may be common to both the emergency and the main lighting systems if the power supply to the emergency lighting system is independent of the power supply to the main lighting system.

c. The illumination level must be sufficient to allow occupants of the OFCR compartment to locate and move to the main passenger cabin floor by means of each evacuation route.

d. The illumination level must be sufficient, with the privacy curtains in the closed position, for each occupant of the OFCR compartment to locate a deployed oxygen mask.

8. A means must be available for two-way voice communications between crewmembers on the flight deck and occupants of the OFCR compartment. Two-way communications must also be available between occupants of the OFCR compartment and each flight attendant station in the passenger cabin that is required, per § 25.1423(g), to have a public-address-system microphone. In addition, the public-address system must include provisions to provide only the relevant information to the crewmembers in the OFCR compartment ( e.g., fire in flight, aircraft depressurization, preparation of the compartment for landing, etc.). That is, provisions must be made so that occupants of the OFCR compartment will not be disturbed with normal, non-emergency announcements made to the passenger cabin.

9. A means must be available for manual activation of an aural emergency-alarm system, audible during normal and emergency conditions, to enable crewmembers on the flight deck and at each pair of required floor-level emergency exits to alert occupants of the OFCR compartment of an emergency situation. Use of a public address or crew interphone system will be acceptable, provided an adequate means of differentiating between normal and emergency communications is incorporated. The system must be powered in flight, after the shutdown or failure of all engines and auxiliary power units, for a period of at least ten minutes.

10. A means, readily detectable by seated or standing occupants of the OFCR compartment, must be in place to indicate when seat belts should be fastened. Seatbelt-type restraints must be provided for berths and must be compatible with the sleeping position during cruise conditions. A placard on each berth must require that these restraints be fastened when occupied. If compliance with any of the other requirements of these special conditions is predicated on specific head position, a placard must identify that head position.

11. Protective breathing equipment must be provided in accordance with § 25.1439, except that in lieu of a device for each crewmember, the following must be provided: Two PBE devices approved to Technical Standard Order (TSO)-C116 or equivalent, suitable for firefighting, or one PBE for each hand-held fire extinguisher, whichever is greater. The following equipment must also be provided in the OFCR compartment:

a. At least one approved hand-held fire extinguisher appropriate for the kinds of fires likely to occur.

b. One flashlight.

Note: Additional PBE devices and fire extinguishers in specific locations, beyond the minimum numbers prescribed in Condition 11 of these special conditions, may be required as a result of the egress analysis accomplished to satisfy Condition 4.a. of these special conditions.

12. A smoke- or fire-detection system (or systems) must be provided that monitors each occupiable space within the OFCR compartment, including those areas partitioned by curtains or doors. Flight tests must be conducted to show compliance with this requirement. If a fire occurs, each system (or systems) must provide:

a. A visual indication to the flight deck within one minute after the start of a fire.

b. An aural warning in the OFCR compartment.

c. A warning in the main passenger cabin. This warning must be readily detectable by a flight attendant, taking into consideration the locations of flight attendants throughout the main passenger compartment during various phases of flight.

13. A means to fight a fire must be provided. This can be either a built-in extinguishing system or a manual, hand-held extinguishing system.

a. For a built-in extinguishing system:

i. The system must have adequate capacity to suppress a fire considering the fire threat, volume of the compartment, and the ventilation rate. The system must have sufficient extinguishing agent to provide an initial knockdown and suppression environment per the minimum performance standards that have been established for the agent being used. In addition, certification flight testing will verify the acceptable duration that the suppression environment can be maintained.

ii. If the capacity of the extinguishing system does not provide effective fire suppression that will last for the duration of flight from the farthest point in route to the nearest suitable landing site expected in service, an additional manual firefighting procedure must be established. For the built-in extinguishing system, the time duration for effective fire suppression must be established and documented in the firefighting procedures in the airplane flight manual. If the duration of time for demonstrated effective fire suppression provided by the built-in extinguishing agent will be exceeded, the firefighting procedures must instruct the crew to:

1. Enter the OFCR compartment at the time that demonstrated fire suppression effectiveness will be exceeded.

2. Check for and extinguish any residual fire.

3. Confirm that the fire is out.

b. For a manual, hand-held extinguishing system (designed as the sole means to fight a fire or to supplement a built-in extinguishing system of limited suppression duration) for the OFCR compartment:

i. A limitation must be included in the airplane flight manual or other suitable means requiring that crewmembers be trained in the firefighting procedures.

ii. The OFCR compartment design must allow crewmembers equipped for firefighting to have unrestricted access to all parts of the OFCR compartment.

iii. The time for a crewmember on the main deck to react to the fire alarm, don the firefighting equipment, and gain access to the OFCR compartment must not exceed the time it would take for the compartment to become filled with smoke, thus making it difficult to locate the fire source.

iv. Approved procedures describing methods for searching the OFCR compartment for fire source(s) must be established. These procedures must be transmitted to the operator for incorporation into its training programs and appropriate operational manuals.

14. A means must be provided to prevent hazardous quantities of smoke or extinguishing agent originating in the OFCR compartment from entering any other occupiable compartment.

a. Small quantities of smoke may penetrate from the OFCR compartment into other occupied areas during the one-minute smoke-detection time.

b. A provision in the firefighting procedures must ensure that all doors and hatches at the OFCR compartment are closed after evacuation of the compartment and during firefighting to minimize smoke and extinguishing agent entering other occupiable compartments.

c. All smoke entering any occupiable compartment when access to the OFCR compartment is open for evacuation must dissipate within five minutes after the access to the OFCR compartment is closed.

d. Hazardous quantities of smoke may not enter any occupied compartment during access to manually fight a fire in the OFCR compartment. The amount of smoke entrained by a firefighter exiting the OFCR compartment is not considered hazardous.

e. Flight tests must be conducted to show compliance with this requirement.

15. A supplemental oxygen system within the OFCR compartment must provide the following:

a. At least one mask for each seat and berth in the OFCR compartment.

b. If a destination area (such as a changing area) is provided in the OFCR compartment, an oxygen mask must be readily available for each occupant who can reasonably be expected to be in the destination area (with the maximum number of required masks within the destination area being limited to the placarded maximum occupancy of the OFCR compartment).

c. An oxygen mask must be readily accessible to each occupant who can reasonably be expected to be moving from the main cabin into the OFCR compartment, moving around within the OFCR compartment, or moving from the OFCR compartment to the main cabin.

d. The system must provide an aural and visual alert to warn occupants of the OFCR compartment to don oxygen masks in the event of decompression. The aural and visual alerts must activate concurrently with deployment of the oxygen masks in the passenger cabin. To compensate for sleeping occupants, the aural alert must be heard in each section of the OFCR compartment and must sound continuously for a minimum of 5 minutes or until a reset switch within the OFCR compartment is activated. A visual alert that informs occupants that they must don an oxygen mask must be visible in each section.

e. A means must be in place by which oxygen masks can be manually deployed from the flight deck.

f. Approved procedures must be established for OFCR occupants in the event of decompression. These procedures must be transmitted to the operator for incorporation into its training programs and appropriate operational manuals.

g. The supplemental oxygen system for the OFCR compartment must meet the same 14 CFR part 25 regulations as the supplemental oxygen system for the passenger cabin occupants, except for the 10 percent additional masks requirement of 14 CFR 25.1447(c)(1).

h. The illumination level of the normal OFCR-compartment lighting system must automatically be sufficient for each occupant of the compartment to locate a deployed oxygen mask.

16. The following additional requirements apply to OFCR compartments that are divided into several sections by the installation of curtains or partitions:

a. A placard is required adjacent to each curtain that visually divides or separates, for example, for privacy purposes, the OFCR compartment into multiple sections. The placard must require that the curtain(s) remains open when the section it creates is unoccupied. The vestibule section adjacent to the stairway is not considered a private section and, therefore, does not require a placard.

b. For each section of the OFCR compartment created by the installation of a curtain, the following requirements of these special conditions must be met with the curtain open or closed:

i. No-smoking placard requirement (Condition 1).

ii. Emergency illumination requirement (Condition 7).

iii. Emergency alarm-system requirement (Condition 9).

iv. Seatbelt-fasten signal or return-to-seat signal as applicable requirement (Condition 10).

v. Smoke- or fire-detection system requirement (Condition 12).

vi. Oxygen-system requirement (Condition 15).

c. OFCR compartments that are visually divided to the extent that evacuation could be adversely affected must have exit signs directing occupants to the exit at the primary stairway. The exit signs must be provided in each separate section of the OFCR compartment, except for curtained bunks, and must meet requirements of § 25.812(b)(1)(i). An exit sign with reduced background area or a symbolic exit sign, as described in Condition 6.a. of these special conditions, may be used to meet this requirement.

d. For sections within an OFCR compartment created by the installation of a rigid partition with a door separating the sections, the following requirements of these special conditions must be met with the door open or closed:

i. A secondary evacuation route from each section to the main deck, or the applicant must show that any door between the sections precludes anyone from being trapped inside a section of the compartment. Removal of an incapacitated occupant from within this area must be considered. A secondary evacuation route from a small room designed for only one occupant for a short time duration, such as a changing area or lavatory, is not required, but removal of an incapacitated occupant from within such a small room must be considered.

ii. Any door between the sections must be shown to be openable when crowded against, even when crowding occurs at each side of the door.

iii. No more than one door may be located between any seat or berth and the primary stairway door.

iv. In each section, exit signs meeting requirements of § 25.812(b)(1)(i), or shown to have an equivalent level of safety, must direct occupants to the exit at the primary stairway. An exit sign with reduced background area or a symbolic exit sign, as described in Condition 6.a. of these special conditions, may be used to meet this requirement.

v. Conditions 1 (no-smoking placards), 7 (emergency illumination), 9 (emergency alarm system), 10 (fasten-seatbelt signal or return-to-seat signal as applicable), 12 (smoke- or fire-detection system), and 15 (oxygen system) must be met with the OFCR compartment door open or closed.

vi. Conditions 8 (two-way voice communication) and 11 (emergency firefighting and protective equipment) must be met independently for each separate section, except for lavatories or other small areas that are not intended to be occupied for extended periods of time.

17. If a waste-disposal receptacle is fitted in the OFCR compartment, it must be equipped with an automatic fire extinguisher that meets the performance requirements of § 25.854(b).

18. Materials (including finishes or decorative surfaces applied to the materials) must comply with the requirements of § 25.853 as amended by Amendment 25-116. Seat cushions and mattresses must comply with the requirements of § 25.853(c) as amended by Amendment 25-116, and the test requirements of part 25, appendix F, part II, or other equivalent methods.

19. The addition of a lavatory within the OFCR compartment would require the lavatory to meet the same requirements as those for a lavatory installed on the main deck, except with regard to Condition 12 of these special conditions for smoke detection.

20. Each stowage compartment in the OFCR compartment, except for underseat compartments for occupant convenience, must be completely enclosed. All enclosed stowage compartments within the OFCR compartment that are not limited to stowage of emergency equipment or airplane-supplied equipment ( i.e., bedding) must meet the design criteria described in the table below. Enclosed stowage compartments greater than 200 ft. 3 in interior volume are not addressed by this special condition. The in-flight accessibility of very large, enclosed stowage compartments, and the subsequent impact on the crewmembers' ability to effectively reach any part of the compartment with the contents of a hand-held fire-extinguishing system, will require additional fire-protection considerations similar to those required for inaccessible compartments such as Class C cargo compartments.

The ANAC, which is the aviation authority for Brazil, has issued ANAC AD 2020-07-01, effective July 15, 2020 (ANAC AD 2020-07-01) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain Yaborã Indústria Aeronáutica S.A. (type certificate previously held by Embraer S.A.) Model ERJ 190-400 airplanes.

This AD was prompted by a report of an IFSD due in part to failure in the LPC rotor 1 during operation in high altitude at high thrust settings. The FAA is issuing this AD to address uncontained release of the LPC rotor 1 and damage to the engine and airplane structure, which could result in loss of control of the airplane. See the MCAI for additional background information.

ANAC AD 2020-07-01 describes procedures for amending the AFM to incorporate a new limitation and revise the normal procedures to limit the engine N1 setting for flights above 33000 ft. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This AD requires accomplishing the actions specified in the MCAI described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, ANAC AD 2020-07-01 is incorporated by reference in this final rule. This AD, therefore, requires compliance with ANAC AD 2020-07-01 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Service information specified in ANAC AD 2020-07-01 that is required for compliance with ANAC AD 2020-07-01 is available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-1122.

Since there are currently no domestic operators of these products, notice and opportunity for public comment before issuing this AD are unnecessary. In addition, for the reason stated above, the FAA finds that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, the FAA invites you to send any written comments, data, or views about this AD. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one copy of the comments. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2020-1122; Project Identifier MCAI-2020-00972-T” at the beginning of your comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, as well as a report summarizing each substantive public contact with FAA personnel concerning this AD. The FAA will consider all comments received by the closing date for comments. The FAA may amend this AD because of those comments.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Krista Greer, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3221; email krista.greer@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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

Currently, there are no affected U.S.-registered airplanes. If an affected airplane is imported and placed on the U.S. Register in the future, the FAA provides the following cost estimates to comply with this AD:

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA has received a report of an incident where a Model 560XL airplane experienced an uncommanded engine acceleration on the ground following successful engine starts. The left engine throttle was unresponsive to power commands, including engine shut-off. An inspection identified that the left engine's sensor link and sensor drive arm (in the TQA) had separated. A sub-supplier of the TQA components failed to properly squeeze the rivet in a throttle quadrant link assembly. The rivet serves as the pivot between the TQA sensor link and sensor drive arm. The FAA determined that the failure of the TQA caused an asymmetrical uncommanded high-thrust that cannot be corrected by the flight crew in certain phases of flight.

This condition, if not addressed, could result in loss of thrust control, which could cause loss of control of the airplane. The FAA is issuing this AD to address the unsafe condition on these products.

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

The FAA reviewed Textron Aviation Inc. Mandatory Service Letter SL560XL-76-04, Revision 1, dated November 24, 2020. This service information specifies procedures for inspecting the rivet of the left and right TQA sensor link and sensor drive arm pivot for correct installation and, if necessary, replacing the rivet, reworking the diameter of the rivet, and inspecting the rivet butt for cracking. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

This AD requires accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this AD and the Service Information.”

The service information specifies compliance at the next “time limited dispatch check,” not to exceed 170 airplane hours or 6 months, whichever occurs first. However, this AD specifies a compliance time of 50 hours time-in-service.

The FAA considers this AD interim action. If final action is later identified, the FAA might consider further rulemaking then.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule because the potential for additional events to occur, based on average operational time, is an unacceptable risk. As a result, the required corrective actions must be accomplished within 50 hours time-in-service, a shorter time than necessary for the public to comment and for publication of the final rule. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forego notice and comment.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include the docket number FAA-2020-1108 and Project Identifier AD-2020-01397-T at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Jeffrey Englert, Aviation Safety Engineer, Wichita ACO Branch, FAA, 1801 Airport Road, Room 100, Dwight D. Eisenhower National Airport, Wichita, KS 67209; phone: (316) 946-4167; fax: (316) 946-4107; email: jeffrey.englert@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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

The FAA estimates that this AD affects 176 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

The FAA has included all known costs in its cost estimate. According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0249, dated November 11, 2020 (EASA AD 2020-0249) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all ATR-GIE Avions de Transport Régional Model ATR42-400 and -500 airplanes; and Model ATR72-101, -102, -201, -202, -211, -212, and -212A airplanes. Model ATR42-400 airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this AD therefore does not include those airplanes in the applicability.

This AD was prompted by a report of damage found on a wire bundle connecting an AOA probe and a MFC, which can inhibit activation of the stick pusher without any indication to the flight crew by the stall warning system. The FAA is issuing this AD to address latent failure of the stick pusher, which could result in loss of control of the airplane. See the MCAI for additional background information.

EASA AD 2020-0249 describes procedures for a repetitive operational test for discrepancies (including missing or incorrect annunciators, messages, indicators, warnings, or sounds) of the stall warning system and stick pusher in the flight configuration, an inspection for discrepancies (including damage to electrical routing and conduits, foreign object debris, electrical routing and conduits not properly attached) in the wiring bundles between AOA probes and MFCs, corrective action, and an inspection report. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This AD requires accomplishing the actions specified in the MCAI described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD and except as discussed under “Differences Between this AD and the MCAI.”

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, EASA AD 2020-0249 is incorporated by reference in this final rule. This AD, therefore, requires compliance with EASA AD 2020-0249 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in the EASA AD. Service information specified in EASA AD 2020-0249 that is required for compliance with EASA AD 2020-0249 is available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-1133.

The MCAI specifies a compliance for the inspection of the affected wiring within 750 FH (flight hours) or 5 months, whichever occurs first. For this AD, the compliance time for the inspection is within 750 FH or 4 months, whichever occurs first after the effective date of this AD. In developing an appropriate compliance time the FAA considered the State of Design authority's recommendation and the degree of urgency associated with the subject unsafe condition.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because of the failure of the stick pusher without any indication to the flight crew by the stall warning system. The latent failure of the stick pusher could result in loss of control of the airplane. In addition, the compliance time for the required action is shorter than the time necessary for the public to comment and for publication of the final rule. Therefore, the FAA finds good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reasons stated above, the FAA finds that good cause exists for making this amendment effective in less than 30 days.

The FAA invites you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2020-1133; Project Identifier MCAI-2020-01515-T” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Shahram Daneshmandi, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3220; email shahram.daneshmandi@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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

The FAA estimates that this AD affects 28 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates that it takes about 1 work-hour per product to comply with the reporting requirement in this AD. The average labor rate is $85 per hour. Based on these figures, the FAA estimates the cost of reporting the wiring inspection results on U.S. operators to be $2,380, or $85 per product.

The FAA has received no definitive data on which to base the cost estimates for the on-condition actions specified in this AD.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

On August 27, 2019, the Commission issued a final rule in Docket No. RM19-18-000 requiring that deliveries of filings and submissions, other than by the United States Postal Service, be sent to an off-site facility  1 for security screening and processing. 2 The final rule, which was published in the Federal Register on September 4, 2019, provided that the new regulation would take effect 60 days after the date of publication of the final rule in the Federal Register . 3 On October 11, 2019, the Secretary issued a document, stating that the effective date for the final rule was postponed indefinitely to ensure that the public and the Commission make an effective transition to utilizing the off-site facility. 4 A Notice of Effective Date was issued on June 23, 2020 annoucing the regulation would take effect on July 1, 2020. 5 This document serves to make the regulatory change effective in the CFR.

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2018-0053 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before February 16, 2021. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2018-0053, by one of the following methods:

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

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

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

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

In the Federal Register of July 24, 2018 (83 FR 34968) (FRL-9980-31), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 7F8646) by BASF Corporation, 26 Davis Dr., P.O. Box 13528, Research Triangle Park, NC 27709. The petition requested to establish tolerances in 40 CFR part 180 for residues of the insecticide, broflanilide, including its metabolites and degradates, in or on grain, cereal, except rice, group 15; amaranth grain; quinoa, grain; spelt, grain; canihua, grain; chia, grain; cram-cram, grain; huauzontle, grain; teff, grain; and corn, sweet, kernel plus cob with husks removed at 0.01 parts per million (ppm); and vegetables, tuberous and corm, subgroup 1C at 0.04 ppm. Tolerances were also requested for cattle, meat; goat, meat; horse, meat; sheep, meat at 0.01 ppm; milk, fat and poultry, fat at 0.02 ppm; and cattle, fat; sheep, fat; and goat, fat at 0.05 ppm. Additionally, tolerances were requested for grain, cereal, forage, fodder and straw, group 16, except rice; quinoa, hay; teff, hay; and corn, sweet, stover; corn, sweet, forage at 0.01 ppm; corn, field, milled products at 0.015 ppm; and potato, wet peel at 0.1 ppm. In addition, BASF proposed to establish a tolerance of 0.01 ppm for residues of broflanilide in or on all food items in food handling establishments where food and food products are held, processed, prepared and/or served. That document referenced a summary of the petition prepared by BASF, the registrant, which is available in the docket, http://www.regulations.gov. A comment was received on the notice of filing. EPA's response to this comment is discussed in Unit IV.C.

In the Federal Register of June 24, 2020 (85 FR 37806) (FRL-10010-82), EPA issued a second notice amending the previous NOF published in the Federal Register on July 24, 2018, by announcing additional commodities for which the petitioner was seeking tolerances. BASF requested to establish a tolerance in 40 CFR part 180 for residues of the insecticide, broflanilide, including its metabolites and degradates, in or on amaranth, stover; quinoa, forage; quinoa, straw; teff, forage; and teff, straw at 0.01 ppm. (EPA's notice inadvertently listed amaranth, grain, which had already been identified in the July 2018 notice, instead of amaranth, stover, but BASF's petition included a request for amaranth, stover.) BASF also requested tolerances for food items (animal origin) for hog, meat; poultry, meat; eggs; cattle, meat byproducts; goat, meat byproducts; hog, meat byproducts; horse, meat byproducts; poultry, meat byproducts; sheep, meat byproducts; hog, fat; and horse, fat at 0.02 ppm. No comments were received in response to this notice.

Based upon review of the data supporting the petition, EPA is establishing some tolerances at different levels than were petitioned for. The reason for these changes is explained in Unit IV.D.

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

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

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

The target organs of broflanilide toxicity are the adrenal glands (rats, mice, and dogs) and ovaries (rats and mice). Adrenal effects include increased adrenal weights, increased incidence of adrenal cortex vacuolation, and adrenal cortex hypertrophy in both sexes. Ovarian effects include increased incidence of ovarian interstitial gland vacuolation.

There were no parental or developmental effects reported up to the limit dose tested (1000 mg/kg/day) in the developmental studies in rats and rabbits. In the reproduction study in rats, increased adrenal weights with corroborative histopathological findings (increased vacuolation and diffuse hypertrophy in the adrenal gland cortex) were observed in parental rats of both sexes and generations. Offspring showed decreased pup weights in F1 and F2 pups, which occurred at a higher dose level than the observed adverse effects in parental rats. Reproductive parameters showed increased ovarian weights and increased incidence of vacuolation of interstitial gland in the ovary at a higher dose level than the adverse effects in parental rats. There were no effects on fertility or other measured reproductive parameters.

There is no evidence of neurotoxicity in acute or subchronic neurotoxicity studies and broflanilide is not an immunotoxic chemical. In the subchronic inhalation study, there was an increase in absolute and relative adrenal weight and increased incidence of adrenal vacuolation in both sexes and increased incidence of ovarian vacuolation.

In the chronic toxicity/carcinogenicity study in rats, there were treatment-related increases in Leydig cell adenomas in male rats, and in luteomas and granulosa cell tumors in the ovaries, as well as in uterine adenocarcinomas, and adrenal cortex carcinomas in female rats. No treatment-related increase in tumor incidences was observed in mice. All mutagenicity studies were negative for both the parent and major metabolites (DM-8007, S(PFP-OH)-8007, DC-8007, DC-DM-8007, MFBA, AB-oxa, S9Br-OH)-8007).

Specific information on the studies received and the nature of the adverse effects caused by broflanilide as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document titled “Broflanilide: New Active Ingredient Human Health Risk Assessment” (hereinafter “Broflanilide Human Health Risk Assessment”) on pages 42-58 in docket ID number EPA-HQ-OPP-2018-0053.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticide.

A summary of the toxicological endpoints for broflanilide used for human risk assessment can be found in the Broflanilide Human Health Risk Assessment.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to broflanilide, EPA considered exposure under the petitioned-for tolerances. EPA assessed dietary exposures from broflanilide in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

No such effects were identified in the toxicological studies for broflanilide; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the 2003-2008 food consumption data from the U.S. Department of Agriculture's National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). As to residue levels in food, for all commodities in the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID), EPA used tolerance-level residues, highest average field trials (HAFT) residue values, anticipated residues, 100 percent crop treated (PCT), and default processing factors resulting from agricultural uses, and the food handling establishment (FHE) values ( 1/2 FHE LOQ tolerance and 4.65% FHE treatment).

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that broflanilide should be classified as “Likely to be Carcinogenic to Humans” and a linear approach has been used to quantify cancer risk. The cancer risk assessment used the same assumptions as the chronic assessment.

iv. Anticipated residue and PCT information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.

• Condition c: Data are available on pesticide use and food consumption in a particular area and the exposure estimate does not understate exposure for the population in such area.

In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

The chronic and cancer assessments assumed 100 PCT for agricultural uses and the treatment value of 4.65% for FHE uses.

EPA estimates the percent of commodities treated in Food Handling Establishments (FHE) for new uses of active ingredients based on the best available information. This includes survey information on pesticide usage related to the number of facilities being treated, product forms used ( e.g., liquids and aerosols), and treatment schedule by FHE segments ( e.g., warehouse, food processor, distributor, and restaurant). EPA also incorporated the best available information related to the transfer of commodities between various segments of food handling establishments and the percent of food consumed by location, either in the home or outside the home.

All information currently available has been considered and EPA has concluded that for any active ingredient, including broflanilide, there is at most a 4.65% likelihood that a food commodity could contain potential residues resulting from one or more treatments while in the food handling establishment channel of trade. Similar to estimates of agricultural use, this estimate should be reconsidered in 5 years.

The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which broflanilide may be applied in a particular area.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for broflanilide alone as well as for the combined residues of concern (ROC), broflanilide and DC-8007 in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of broflanilide and the ROC, broflanilide and DC-8007. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

Based on the Pesticide in Water Calculator (PWC) model and using the Total Residue (TR) method for the ROCs, the estimated drinking water concentrations (EDWCs) of broflanilide and DC-8007 for chronic exposures for non-cancer assessments are estimated to be 0.9 ppb for surface water and for chronic exposures for cancer assessments are estimated to be 0.7 ppb for surface water. Since breakthrough of broflanilide into groundwater is incomplete after 100 years of simulation, post-breakthrough EDWCs are negligible. Due to the high Freundlich adsorption coefficient (K F ) of broflanilide, peak EDWCs in groundwater were negligible as well.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For the chronic dietary risk assessment, the water concentration value of 0.9 ppb was used to assess the contribution to drinking water. For the cancer dietary risk assessment, the water concentration value of 0.7 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

There are several proposed residential uses for broflanilide. These uses include, but are not limited to, insecticide treatments in and around homes, apartments, schools, picnic areas, hospitals, and nursing homes. In addition, there are several proposed termiticide products that may be used around the exterior of homes, apartments, schools, and other residential use sites. EPA assessed residential exposure using the following assumptions:

• Residential handler: Although there is one proposed broflanilide product label with residential use sites ( e.g., homes, apartments, mobile homes), this product is formulated as a ready-to-use pressurized can, which, once dispensed, rapidly expands to generate a dry foam. One ounce (weight) of the product is being dispensed in approximately 5 seconds, and the ready-to-use pressurized can produces about 1 quart of foam. Based on the areas to which it is applied ( i.e., with actuators in voids, cracks, and other places where insects harbor), dermal exposure is expected to be negligible. In addition, considering the low vapor pressure of broflanilide (6.7×10 −11 mmHg) and formulation into foam, inhalation exposure is also expected to be negligible. Therefore, neither a quantitative non-cancer nor cancer residential handler exposure and risk assessment was conducted.

• Post-application exposure: There is the potential for short-term post-application exposure for individuals exposed as a result of being in an environment that has been previously treated with broflanilide. Due to a lack of dermal hazard for broflanilide, a dermal non-cancer assessment was not conducted. The quantitative non-cancer exposure and risk assessment for residential short-term post-application exposures is based on the following maximum application rate scenarios: Inhalation and incidental oral exposure from indoor crack and crevice, banded, and spot applications.

The PODs for the oral and inhalation routes are based on the same effects: Therefore, oral and inhalation routes can be combined. Since the LOCs for both incidental oral and inhalation are different (100 and 30), the aggregate risk index (ARI) approach was used:

Although a non-cancer dermal risk assessment was not performed due to the lack of an adverse effect in the non-cancer dermal study, a dermal cancer exposure and risk assessment was performed because dermal exposure does contribute to the overall cancer risk for broflanilide.

Post-application cancer risk estimates for adults were calculated using a linear low-dose extrapolation approach in which a Lifetime Average Daily Dose (LADD) is first calculated and then compared with a Q 1  * that has been calculated for broflanilide based on dose response data in the appropriate toxicology study (Q 1 * = 2.48 × 10 −3 (mg/kg/day) −1 ).

The residential exposure scenario used in the adult non-cancer aggregate assessment is short-term post-application inhalation exposure following an indoor surface directed spot application. The residential exposure scenario used in the non-cancer aggregate assessment of children 1 to less than 2 years old is the combined inhalation and hand-to-mouth exposures from short-term post-application exposure to indoor perimeter/spot coarse and pin stream surface spray applications on carpet.

The residential exposure scenario used in the adult cancer aggregate assessment is post-application dermal and inhalation exposure following an indoor surface directed perimeter/spot application.

Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found broflanilide to share a common mechanism of toxicity with any other substances, and broflanilide does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that broflanilide does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity. Broflanilide did not demonstrate any evidence of increased qualitative or quantitative susceptibility in the rat and rabbit developmental toxicity studies or the 2-generation rat reproduction study. In the rabbit and rat developmental toxicity studies, there were no developmental effects up to the limit dose tested (1000 mg/kg/day). In the reproduction study in rats, decreased pup weights in F1 and F2 pups occurred at a higher dose levels than the dose with adverse parental findings.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

i. The toxicity database for broflanilide is complete.

ii. Acute and subchronic neurotoxicity studies showed no evidence of neurotoxicity in male or female rats. There was no other evidence in any species tested to indicate neurotoxicity potential. Therefore, there is no concern for acute or subchronic neurotoxicity resulting from exposure to broflanilide.

iii. There is no evidence that broflanilide results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT for agricultural uses, a treatment value of 4.65% for FHE uses, and some anticipated residue data. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to broflanilide in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by broflanilide.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, broflanilide is not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to broflanilide from food and water will utilize less than 1% of the cPAD for children 1 to 2 years old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of broflanilide is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Broflanilide is proposed for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to broflanilide.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate ARIs of 320 for adults and 4.4 for children 1 to <2 years old. Because EPA's level of concern for broflanilide is an ARI of 1 or below, these ARIs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

An intermediate-term adverse effect was identified; however, broflanilide is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for broflanilide.

5. Aggregate cancer risk for U.S. population. A cancer aggregate risk assessment was completed for the proposed residential and dietary uses of broflanilide using the linear slope factor (Q1 *) of 2.48 × 10 −3 . The assessment incorporates the adult post-application dermal and inhalation exposure following an indoor surface directed perimeter/spot application. The residential assessment is a conservative calculation which assumes 12 retreatments a year as allowed by the label at the maximum rate proposed, 365 days of exposure in the residential setting, and 10% dissipation of residues per day. The cancer dietary exposure estimate for adults 20-49 years old, the most highly-exposed adult population subgroup, assumed 100% crop treated for agricultural uses and the FHE treatment value of 4.65% for FHE uses. The resulting aggregate cancer risk estimate is 1 × 10 −6 .

EPA generally considers cancer risks (expressed as the probability of an increased cancer case) in the range of 1 in 1 million (or 1 × 10 −6 ) or less to be negligible. Accordingly, EPA has concluded the aggregate cancer risk for all broflanilide uses fall within the range of 1 × 10 −6 and are thus negligible.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to broflanilide residues.

The petitioner proposed a multi-residue method, BASF method D1417/01, based on QuEChERS (quick, easy, cheap, effective, rugged, safe) for the determination of broflanilide residues in plant matrices. This method has been proven to be suitable for the determination of residues of broflanilide in plant matrices.

BASF method D1604/01 is proposed as the enforcement method for the determination of residues of broflanilide and DM-8007 in livestock commodities by LC-MS/MS. This method has been proven to be suitable for the determination of residues of broflanilide and DM-8007 in livestock matrices.

The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

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

Broflanilide is a new active ingredient and no MRLs have yet been established by Codex.

One comment was received in response to the Notice of Filing. The comment stated in part that “the notice of the application for these uses does not contain any information about human toxicity, water solubility, granular transmissibility, or other information which could help evaluate the risk of higher levels of use of broflanilide” and that “perhaps EPA should reissue the notice with attached information on toxicity and transmission levels.” A supporting document summarizing the information on the residue chemistry, toxicological profile, as well as an estimate of the aggregate exposure expected was available in the docket at the time the notice was published. The NOF published on July 24, 2018, referred to the docket and noted that the summary was available. That document provided information to help evaluate the risks of broflanilide.

EPA is establishing the tolerance in/on potato, wet peel at 0.08 ppm rather than the petitioned-for tolerance of 0.1 ppm. The Agency's practice is to use the HAFT value from the field trials and the median processing factor. Based on these data, the appropriate tolerance for potato, wet peel is 0.08 ppm.

EPA is not establishing a separate tolerance for corn, sweet, kernel plus cob with husks removed because it is covered under grain, cereal, group 15, except rice. Similarly, separate tolerances for corn, sweet, stover; and corn, sweet forage are not being established because they are covered under grain, cereal, forage, fodder, and straw, group 16, except rice.

EPA is including the livestock metabolite DM-8007 as a residue of concern for tolerance enforcement and risk assessment. Therefore, the tolerance expression for livestock commodities is being revised to include the metabolite DM-8007.

EPA is establishing a tolerance for residues in milk at 0.02 ppm to harmonize with Canadian livestock LOQ MRLs. The tolerance of 0.02 ppm for residues in milk is higher than the anticipated residues in milk fat; therefore, although the available data support a tolerance for residues in milk fat at 0.01 ppm, a separate milk fat tolerance is not necessary at this time.

Lastly, the commodity definitions for the FHE use, egg and crop group 16 are being modified to be consistent with Agency nomenclature.

Therefore, tolerances are established for residues of broflanilide, including its metabolites and degradates, in or on the following plant commodities: Amaranth, grain, grain at 0.01 ppm; Amaranth, grain, stover at 0.01 ppm; Cañihua, grain at 0.01 ppm; Chia, grain at 0.01 ppm; Corn, field, milled byproducts at 0.015 ppm; Cram-cram, grain at 0.01 ppm; Grain, cereal, group 15, except rice at 0.01 ppm; Food and feed commodities (other than those covered by a higher tolerance) at 0.01 ppm; Grain, cereal, forage, fodder, and straw, group 16, except rice at 0.01 ppm; Huauzontle, grain at 0.01 ppm; Potato, wet peel at 0.08 ppm; Quinoa, forage at 0.01 ppm; Quinoa, grain at 0.01 ppm; Quinoa, hay at 0.01 ppm; Quinoa, straw at 0.01 ppm; Spelt, grain at 0.01 ppm; Teff, forage at 0.01 ppm; Teff, grain at 0.01 ppm; Teff, hay at 0.01 ppm; Teff, straw at 0.01 ppm; and Vegetable, tuberous and corm, subgroup 1C at 0.04 ppm.

Tolerances are also established for residues of broflanilide, including its metabolites and degradates, in or on the following livestock commodities: Cattle, fat at 0.02 ppm; Cattle, meat at 0.02 ppm; Cattle, meat byproducts at 0.02 ppm; Egg at 0.02 ppm; Goat, fat at 0.02 ppm; Goat, meat at 0.02 ppm; Goat, meat byproducts at 0.02 ppm; Hog, fat at 0.02 ppm; Hog, meat at 0.02 ppm; Hog, meat byproducts at 0.02 ppm; Horse, fat at 0.02 ppm; Horse, meat at 0.02 ppm; Horse, meat byproducts at 0.02 ppm; Milk at 0.02 ppm; Poultry, fat at 0.02 ppm; Poultry, meat at 0.02 ppm; Poultry, meat byproducts at 0.02 ppm; Sheep, fat at 0.02 ppm; Sheep, meat at 0.02 ppm; and Sheep, meat byproducts at 0.02 ppm.

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

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

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

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

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:

This is a summary of the Commission's Report and Order, MB Docket Nos. 20-70, 17-105, 11-131; FCC 20-162, adopted and released on November 18, 2020. The full text of this document is available via ECFS ( http://www.fcc.gov/cgb/ecfs/ ). (Documents will be available electronically in ASCII, Word, and/or Adobe Acrobat.) To request these documents in accessible formats (computer diskettes, large print, audio recording, and Braille), send an email to fcc504@fcc.gov or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

In this Report and Order ( Order ), we adopt proposed changes to the rules governing the resolution of program carriage disputes between video programming vendors and multichannel video programming distributors (MVPDs) and parallel procedural rules in part 76 of our rules, which govern program access, open video system (OVS), and good-faith retransmission consent complaints. Specifically, we amend the third prong of the statute of limitations for filing program carriage complaints so that it no longer undermines the fundamental purpose of a statute of limitations. To harmonize our rules, we similarly amend the statutes of limitations for filing program access, OVS, and good-faith retransmission consent complaints. We also revise the effective date and review procedures for initial decisions issued by an administrative law judge (ALJ) in program carriage, program access, and OVS proceedings to make them consistent with the Commission's generally applicable procedures and adopt an aspirational shot clock to encourage quick resolution of appeals of such decisions. We find that these changes will help to ensure a clear and expeditious program access, program carriage, retransmission consent, and OVS complaint process for potential complainants and defendants. With this proceeding, we continue our efforts to modernize our media regulations.

Background. Section 616 of the Communications Act of 1934, as amended (the Act), directs the Commission to adopt regulations governing program carriage agreements between MVPDs and video programming vendors that prohibit certain anti-competitive practices and provide for expedited review of program carriage complaints. Congress passed section 616 as part of the Cable Television Consumer Protection and Competition Act of 1992 (1992 Cable Act), which was designed to preserve diversity and competition in the video programming market. Two sets of rules adopted pursuant to the 1992 Cable Act principally are addressed in this Report and Order : The statute of limitations for filing a program carriage complaint and the rules governing the effective date and review procedures for initial decisions issued by an ALJ in program carriage cases. We discuss these rules, in turn, below.

First, for a program carriage complaint to be timely filed under our rules, it must be brought within one year of the date on which any of the following events occurs: (1) The defendant MVPD enters into a contract with a video programming vendor that a party alleges to violate the program carriage rules, (2) the defendant MVPD makes a carriage offer that allegedly violates the program carriage rules, and such offer is unrelated to any existing contract between the complainant and the MVPD; or (3) “[a] party has notified [an MVPD] that it intends to file a complaint with the Commission” based on a violation of the program carriage rules. As noted in the further notice of proposed rulemaking ( FNPRM ) in this proceeding (85 FR 21131, April 16, 2020), the third prong of the statute of limitations, as originally adopted in the 1993 Program Carriage Order (58 FR 60390, November 16, 1993), contained additional limiting language that made it functionally identical to the current statutes of limitations governing program access, OVS, and good-faith negotiation of retransmission consent complaints. In particular, the original language provided that a program carriage complaint was timely if filed within one year of the date on which “the complainant has notified [an MVPD] that it intends to file a complaint with the Commission based on a request for carriage or to negotiate for carriage of its programming on a defendant's distribution system that has been denied or unacknowledged,” allegedly in violation of the program carriage rules. In a subsequent 1994 amendment (59 FR 43776, August 25, 1994), the Commission modified § 76.1302(h)(3) to eliminate this limiting language without setting forth an explicit rationale for doing so. After several program carriage decisions in which the third prong of the statute of limitations had been interpreted in a manner consistent with the plain meaning of the 1994 rule language, the Commission expressed concern in the 2011 Program Carriage NPRM (76 FR 60675, September 29, 2011) that the third prong could be read to mean that a complaint would be deemed timely filed under our rules if brought within one year of the date on which a complainant notified the defendant MVPD of its intention to file a complaint, regardless of when the alleged violation of the rules had occurred, thereby “undermining the fundamental purpose of a statute of limitations.” In the FNPRM, we proposed to reinsert in the program carriage rules statute of limitations language similar to that adopted in the 1993 Program Carriage Order, which would make the triggering event for the statute of limitations the denial or failure to acknowledge a request for carriage or to negotiate for carriage, and to clarify that the third prong applies only in instances where there is no existing contract or offer of carriage. For consistency, we also proposed to modify the similar third prongs of the statutes of limitations governing program access, OVS, and good-faith retransmission consent complaints to make the triggering event for each the denial or failure to acknowledge a request.

Second, program carriage disputes may be referred by the Chief of the Media Bureau to an ALJ for a hearing on the merits if a complainant establishes that a prima facie violation of § 76.1301 has occurred. A program carriage decision issued by an ALJ becomes effective upon release except in certain circumstances. If a party seeks review, the decision remains in effect pending Commission review, unlike the generally applicable procedures of § 1.276(d) that automatically stay an ALJ's initial decision pending Commission review. In the FNPRM, we noted that although Congress instructed the Commission to adopt procedures for the expedited review of program carriage complaints, there is no specific statutory requirement for ALJ decisions to take immediate effect, nor that they remain in effect pending Commission review. We observed that, in the past, the incongruous provisions in parts 76 and 1 of our rules have caused confusion for both parties and adjudicators, and can create inconsistent outcomes pending appeal. Therefore, we proposed to harmonize our parts 76 and 1 rules so that review of an ALJ's initial decision in program carriage, program access, and OVS proceedings is subject to the same procedural rules as other complaints adjudicated by the Commission.

Additionally, the FNPRM proposed to make several technical edits to the part 76 rules. The FNPRM also sought comment on whether, given the amount of time that has passed, the Commission should consider any of the substantive proposals from the 2011 Program Carriage NPRM, which considered a range of substantive and procedural revisions to the program carriage rules.

As further discussed below, MVPDs responding to the FNPRM generally support our proposals and advocate for simplifying the regulatory framework for program carriage disputes. MVPDs assert that the rationale for protecting consumers from vertically-integrated distributors is outdated, given the increased competition in the video marketplace. On the other hand, independent video programming vendors oppose the rule revisions proposed in the FNPRM. In general, such programmers advocate for program carriage rules more favorable for programmers, citing the practical and financial hardships they face when bringing a complaint under our rules and alleging that the negotiation practices of vertically-integrated MVPDs continue to restrain their ability to compete.

Discussion. For the reasons discussed below, we adopt our proposals to amend the third prong of the statute of limitations for program carriage, program access, OVS, and good-faith retransmission consent complaints, as well as the rules governing the effective date and review procedures for initial decisions issued by an ALJ in program access, program carriage, and OVS proceedings. Additionally, in order to ensure prompt resolution of appeals in program access, program carriage, and OVS proceedings, we adopt an aspirational 180-day shot clock for circulating a final Commission decision of ALJ initial decision appeals in such proceedings. We also make other revisions to our part 76 rules to ensure consistency among parallel provisions, clarify existing language, and eliminate inoperative language. Finally, we decline at this time to adopt other proposals from the 2011 Program Carriage NPRM. We find that the rule revisions adopted herein will serve the public interest by clarifying and harmonizing the Commission's rules and encouraging the timely resolution of program carriage disputes.

Program Carriage Statute of Limitations. We adopt our proposal to revise the third prong of the program carriage statute of limitations to clarify that it applies only in circumstances where there is not an existing program carriage contract or carriage offer and the defendant MVPD has denied or failed to acknowledge either a request for program carriage or a request to negotiate for program carriage. We find that this rule revision will provide certainty to both MVPDs and prospective complainants and foreclose the possibility that the third prong could be read to allow the filing of a program carriage complaint at essentially any time, regardless of when the alleged violation of the rules occurred.

As explained above, the third prong of the program carriage statute of limitations currently provides that a complaint must be filed within one year of the date on which “[a] party has notified [an MVPD] that it intends to file a complaint with the Commission based on violations of one or more of the rules contained in this section.” We agree with those commenters who assert that we should adopt our proposal because the current rule could be read to “undermine[ ] the fundamental purpose of a statute of limitations `to protect a potential defendant against stale and vexatious claims by ending the possibility of litigation after a reasonable period of time has elapsed.' ” NCTA asserts, for example, that under the existing statute of limitations a complainant could file a program carriage complaint years after a contract is entered into with the goal of “belatedly modify[ing] the agreed-upon terms of a contract.” As explained previously, the third prong originally contained language limiting its application to circumstances in which there is an unreasonable refusal to negotiate, and this language was stricken by the Commission in 1994 without explanation. We agree with Comcast that this limiting language made clear that the statute of limitations contained “three distinct and mutually exclusive paths for a program carriage complaint” and that the “ambiguity in the language of the revised rule has led to . . . interpretations of the third prong as an exception that swallows the other two prongs of the rule.” We therefore clarify that the third prong applies only in circumstances where there is no existing contract or carriage offer, and the MVPD has denied or failed to acknowledge a request for carriage or a request to negotiate for program carriage allegedly in violation of the program carriage rules, consistent with the program carriage rules as originally adopted and with Congress's directive in section 616.

We are not persuaded that the public interest would be better served by abandoning our proposed changes in favor of alternative revisions advocated for by commenters. As an initial matter, we affirm our tentative conclusion from the FNPRM that reincorporating the limiting language originally contained in the third prong is preferable to adopting a single provision that would run for one year from the date on which a violation of the program carriage rules allegedly occurred. No commenter supported this latter option. Rather, we conclude that revising the third prong of the rule strikes an appropriate balance between the interest of MVPDs in ensuring that program carriage complaints are brought in a timely manner, unaffiliated programmers' interest in securing relief for alleged violations of the program carriage rules, and the interest of all parties in having greater procedural certainty.

We also decline to adopt alternative proposals raised by commenters in the record because we find that none would provide greater certainty to parties and adjudicators. First, Independent Programmers oppose our proposal, asserting that instead we should revise the statute of limitations to permit claims submitted within one year of the date that a programmer becomes aware, or should have become aware through the exercise of reasonable diligence, of an alleged program carriage violation. They assert that MVPDs often “do not clearly decline or refuse carriage proposals” during negotiations, making it difficult to determine when a denial of carriage occurs. However, given the inherent uncertainty in determining whether and when a potential complainant knew or should have known of an alleged violation of the program carriage rules, we agree with NCTA and AT&T that this option would not provide greater certainty and finality to the parties. Independent Programmers also assert that limiting the third prong to instances where a contract does not exist opens the door for MVPD misconduct in pre- or post-offer renewal negotiations. However, as noted in the FNPRM, our intent is that this revised third prong will “encompass instances where an MVPD refuses to renew or to negotiate for renewal of a contract.” Accordingly, we revise the rule to make clear that the third prong also applies in such instances. Other commenters do not directly oppose revising the third prong as proposed, but assert that if we were to do so, we should adopt a new fourth prong that would run from the date that a potential complainant learns that a contractual right has been exercised in a discriminatory manner by an MVPD. Commenters supporting this proposal contend that such a fourth prong is necessary because a contract provision may be consistent with the rules at the time it is entered into, but subsequently may be exercised by an MVPD in a manner that is unlawfully discriminatory. We decline to adopt this proposal. We agree with Comcast that such a proposal, if adopted, would create “ongoing uncertainty and litigation risk for material decisions [MVPDs] make pursuant to existing agreements,” and would fail to provide finality to the parties as virtually any conduct by an MVPD during the course of a carriage agreement could become the basis for a claim of allegedly impermissible discrimination. We also find merit in Comcast's assertion that allowing claims based on an MVPD's exercise (or non-exercise) of rights that a programmer has agreed to contractually would deprive the MVPD of the “benefit of its bargain.”

We also reject beIN's proposal that we amend the rules so that the one-year period is separately triggered by each materially different offer made by an unaffiliated programmer to a vertically integrated MVPD. beIN contends that this would reflect the reality that program carriage negotiations often run longer than a single calendar year, and thus a programmer absent such an amendment may feel that it needs to resort to filing a program carriage complaint before necessary. However, we are persuaded that such a rule appears to give programmers the unilateral power to restart the limitations period at any point by making a new offer to an MVPD on whose platform they are seeking carriage. Thus, we find that such a rule would be administratively unworkable and be susceptible to gaming by programmers seeking carriage.

We also conclude that determining when an MVPD has denied or failed to acknowledge a request for carriage or a request to negotiate for carriage is an inherently fact-specific exercise and, therefore, such a determination should be made on a case-by-case basis. beIN asks that we amend the rule so that “the third prong of the statute of limitations does not begin to run until the vertically integrated MVPD provides a written and substantiated rejection of the unaffiliated programmer's carriage offer or request to negotiate.” beIN suggests that such a rule is necessary to encourage MVPDs to “be responsive to the offers and requests of unaffiliated programmers” and to provide clarity about where such programmers stand in carriage negotiations. To the extent that it may be unclear whether an MVPD has denied or failed to respond to a request for carriage or to negotiate for carriage, we agree with commenters who assert that it would be appropriate for a programmer to request an answer by a reasonable date, after which it may consider an MVPD's failure to respond to constitute a denial of its request for purposes of triggering the third prong of the statute of limitations. We are not persuaded, however, that MVPDs should be required to substantiate in writing their denial of a request for carriage or to negotiate for carriage in order to trigger the third prong, as beIN requests. Because, as noted, an MVPD's failure to respond to a carriage request within a reasonable date specified by the programmer would be deemed a denial of such request, we find that requiring MVPDs to provide denials in writing is unnecessary and that the burdens imposed by such a requirement would outweigh any purported benefits.

Finally, we adopt our proposal to amend the parallel prongs in the statutes of limitations for program access, OVS, and good-faith retransmission consent complaints so that they run from the date that a potential defendant has denied or failed to acknowledge an offer or a request to negotiate, rather than from the date a potential complainant provides notice of its intent to file on that basis. Every commenter who addressed this proposal voiced support for maintaining consistency between the statutes of limitations for program carriage, program access, OVS, and good-faith retransmission consent complaints, and also ensures a finite limitations period.

Part 76 ALJ Initial Decision Effective Date and Review Procedures. We also adopt our proposal to harmonize the procedures governing the effective date and review of initial ALJ decisions in program carriage, program access, and OVS proceedings with the generally applicable procedures in part 1 of the Commission's rules. In practice, this means that rather than taking immediate effect and remaining in effect pending Commission review, ALJ initial decisions in these contexts will not take effect for at least 50 days following release and will be stayed automatically upon the filing of exceptions. We find that this action will simplify and streamline the Commission's procedures, which in turn will reduce uncertainty and confusion for both parties and adjudicators. Further, we agree with Comcast and AT&T that this action will benefit consumers by avoiding “carriage whipsaw” in the event that an ALJ initial decision mandating carriage is reversed by the Commission.

Although programmers express concern that any additional delays in implementing ALJ initial decisions would harm unaffiliated programmers, we disagree that this concern is best remedied by abandoning our proposal. Specifically, Independent Programmers contend that further delaying an order for mandatory carriage amplifies the harms to programmers by extending the length of time during which their programming is not carried. Independent Programmers further suggest that delaying the effectiveness of an ALJ initial decision pending appeal would incentivize MVPDs to pursue frivolous appeals for the purpose of delay. We are not persuaded that the potential harms to programmers from delaying the effectiveness of ALJ initial decisions justify retaining the existing effective date and review procedures. As noted by AT&T and Comcast, the rules provide that if the Commission upholds a mandatory carriage decision that is stayed pending review in certain instances, the MVPD will be required to carry the relevant programming for an additional period of time equal to the length of the delay caused by the review. Further, the Commission generally has the discretion to “order appropriate remedies” upon completion of program carriage proceedings. We find that these remedies adequately address the potential harm to unaffiliated programmers from delaying the effectiveness of ALJ initial decisions pending appeal.

Recognizing “the logic” in harmonizing the part 76 review procedures, but expressing concern about the effect of prolonged program carriage disputes on unaffiliated programmers, AMC Networks (AMCN) proposes that the Commission adopt a six-month “shot clock” for the Commission to review and issue an order upholding or overturning an ALJ initial decision when a party seeks review. We note that no other commenters addressed AMCN's proposal. Although the Commission is under no statutory obligation to review ALJ initial decisions within a specified timeframe, we agree with AMCN that such a timeframe would serve the public interest by limiting the harms to those programmers with finite litigation resources and expediting the resolution of complaints. We, therefore, establish a 180-day aspirational shot-clock for circulating to the Commission a proposed ruling on review of an initial ALJ decision in program access, program carriage, and OVS proceedings that commences from the date that an aggrieved party appeals such initial decision. We believe that creating this aspirational shot-clock will establish clearer expectations for all parties involved and facilitate prompt review of ALJ initial decisions. As in other contexts where the Commission has established such shot clocks, “we intend to apply it in the ordinary course and only anticipate suspending it under special circumstances.”

Other Proposals. Standstill Rule. We decline to reimpose the standstill provision in the program carriage rules, as requested by beIN. In 2013, the Second Circuit vacated this provision without prejudice, which provides that “[a] program carriage complainant seeking renewal of an existing programming contract may file a petition along with its complaint requesting a temporary standstill of the price, terms, and other conditions of the existing programming contract pending resolution of the complaint.” The Second Circuit found that the public did not have adequate notice under the APA when the Commission adopted the provision. beIN asks that we initiate a notice-and-comment rulemaking to readopt this provision consistent with the APA. Comcast opposes this request, asserting that such a rule would be inconsistent with the goal of expeditious resolution of program carriage complaints. Because the absence of explicit standstill procedures in the program carriage rules does not preclude parties from filing a request for temporary injunctive relief with the Commission, we find it unnecessary to pursue readopting the standstill rule at this time. As the rule was vacated by the Second Circuit, we will take this opportunity to delete the standstill provision, § 76.1302(k), from the text of the CFR.

2011 Proposals. We decline to address any of the remaining program carriage proposals put forth in the 2011 Program Carriage NPRM at this time, but may consider them in a future order. As content and speaker neutral regulations on protected speech, the program carriage rules must advance an important government interest—here, fair competition and a diversity of voices in the video market—and be narrowly tailored to advance that interest. The Commission has recently found that the video programming market has vastly changed in the past decade. Congress enacted section 616 to promote competition in the marketplace at a time when most Americans had access to only a single MVPD and their local broadcast stations for video programming. Today, most Americans have access to at least three MVPDs, in addition to broadcast and online video distributor (OVD) offerings. Consumers now have a competitive choice of multiple delivery systems offering more programming options of more diverse types from more diverse sources than was envisioned when the 1992 Cable Act was enacted nearly 30 years ago. Significantly, in 2013, the last time the program carriage statute was considered in federal court, the Second Circuit observed that “there is no denying that the video programming industry is dynamic and that the level of competition has rapidly increased in the last two decades.” The court elaborated that in light of these changes “some of the Cable Act's broad prophylactic rules may no longer be justified” and that it considered the “possibility more real than speculative” that developments in the market would erode the justification for the program carriage regime.

Commenters disagree starkly on the degree of competition and vertical integration in today's video programming market and the need for these proposals. On one hand, MVPDs assert that competition is at an all-time high in the video programming market as a result of the advent of alternative video programming options since the passage of the 1992 Cable Act, and therefore generally oppose the adoption of any additional program carriage rules. On the other hand, programmers contend that MVPDs retain outsized market power in the video marketplace and thus have the ability to engage in behavior detrimental to programmers. Accordingly, programmers voice support for several of the 2011 proposals that they claim would create a more competitive video programming market, including: Adopting an anti-retaliation rule; allowing for the award of damages in successful program carriage complaints; implementing limited automatic discovery at the prima facie stage; shifting the burden of proof after the prima facie stage; and applying a good-faith negotiation rule to vertically integrated MVPDs in program carriage negotiations. Given the lack of consensus in the record, we are not persuaded that this procedure-focused proceeding is the appropriate vehicle through which to fully consider these proposals that, if adopted, would substantially alter the existing program carriage framework. Therefore, we decline to address these proposals at this time and instead may consider them in a future order.

Other Proposals. Commenters urge that we consider broader amendments to the program carriage rules to address, among other things, the imposition of most favored nation clauses by MVPDs, the challenges faced by smaller stations seeking to obtain carriage on virtual MVPDs (vMVPDs), and the effect of the retransmission consent rules on the program carriage market. We concur with those commenters who suggest that these other proposals fall outside the scope of this narrow procedure-focused proceeding, and therefore we decline to consider those proposals here.

Procedural Matters. Final Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to this Order. The FRFA is set forth in Appendix B of the Report and Order.

Paperwork Reduction Act Analysis. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

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

Final Regulatory Flexibility Act Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the FNPRM in this proceeding. The Commission sought written public comment on the proposals in the FNPRM, including comment on the IRFA. We received no comments specifically directed toward the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

Need for, and Objective of, the Report and Order. In this Report and Order, we adopt changes to the rules governing the resolution of program carriage disputes between video programming vendors and multichannel video programming distributors (MVPDs). Specifically, we amend the statute of limitations for program carriage complaints to make clear that the third triggering event applies only when a party seeks renewal of an existing contract or when there is not an existing program carriage contract or contract offer, and a defendant MVPD has denied or failed to acknowledge either a request for carriage or a request to negotiate for program carriage. This third prong of the program carriage statute of limitations originally contained similar limiting language concerning an unreasonable refusal to deal that appears to have been inadvertently stricken by the Commission in 1994. The Commission has previously expressed concern that without that language this provision could be read to mean that a complaint would be timely within one year of the date on which a complainant notified the defendant MVPD of its intention to file a complaint, regardless of when the actual violation of the rules had occurred, undermining the fundamental purpose of a statute of limitations. For consistency, we similarly amend parallel provisions in the statutes of limitations for filing program access, open video system (OVS), and good-faith retransmission consent complaints so that they run from the date that a potential defendant denied an offer or a request to negotiate, rather than from the date a potential complainant provides notice of its intent to file on that basis. We find that these changes will help ensure an expeditious program access, program carriage, retransmission consent, and OVS complaint process and provide additional clarity to both potential complainants and defendants, as well as adjudicators.

We also revise the effective date and review procedures for initial decisions issued by an administrative law judge (ALJ) in program carriage, program access, and OVS proceedings to make them consistent with the Commission's generally applicable procedures. In practice, this means that rather than taking immediate effect and remaining in effect pending review, ALJ initial decisions in these contexts will not take effect for at least 50 days following release and will be stayed automatically upon the filing of exceptions. As discussed fully in the FNPRM, the incongruous provisions concerning the effective date and review procedures for ALJ initial decisions in parts 76 and 1 of our rules have caused confusion for both parties and adjudicators and can create inconsistent outcomes pending appeal. We find that this action will simplify and streamline the Commission's procedures, which will reduce uncertainty and confusion for both parties and adjudicators. The rest of the existing rules governing the resolution of program carriage, program access, OVS, and good-faith retransmission consent complaints remain unchanged by this Report and Order.

Summary of Significant Issues Raised by Public Comments in Response to the IRFA. There were no comments filed in response to the IRFA.

Response to comments by the Chief Counsel for Advocacy of the Small Business Administration. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments.

The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

Description and Estimate of the Number of Small Entities to Which Rules Will Apply. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Below, we provide a description of such small entities, as well as an estimate of the number of such small entities, where feasible.

Cable Companies and Systems (Rate Regulation Standard). The Commission has also developed its own small business size standards for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide. Industry data indicates that, of the 777 cable companies currently operating in the United States, 766 serve 400,000 or fewer subscribers. Additionally, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. According to industry data, there are currently 4,336 active cable systems in the United States. Of this total, 3,650 cable systems have fewer than 15,000 subscribers. Thus, the Commission believes that the vast majority of cable companies and cable systems are small entities.

Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” As of 2019, there were approximately 48,646,056 basic cable video subscribers in the United States. Accordingly, an operator serving fewer than 486,460 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that all but five cable operators are small entities under this size standard. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million. Therefore, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

Direct Broadcast Satellite (DBS) Service. DBS service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic dish antenna at the subscriber's location. For the purposes of economic classification, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in the Wired Telecommunications Carriers industry. The Wired Telecommunications Carriers industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution; and wired broadband internet services. The SBA determines that a wireline business is small if it has fewer than 1,500 employees. Economic census data for 2012 indicate that 3,117 wireline companies were operational during that year. Of that number, 3,083 operated with fewer than 1,000 employees. Based on that data, we conclude that the majority of wireline firms are small under the applicable standard. However, currently only two entities provide DBS service, which requires a great deal of capital for operation: DIRECTV (owned by AT&T) and DISH Network. According to industry data, DIRECTV and DISH serve 14,831,379 and 8,957,469 subscribers respectively, and count the third and fourth most subscribers of any multichannel video distribution system in the U.S. Given the capital required to operate a DBS service, its national scope, and the approximately one-third share of the video market controlled by these two companies, we presume that neither would qualify as a small business.

Motion Picture and Video Production. This industry comprises establishments primarily engaged in producing, or producing and distributing motion pictures, videos, television programs, or television commercials. The SBA has established a small size standard for businesses operating this industry, which consists of all such firms with gross annual receipts of $35 million dollars or less. U.S. Census Bureau data for 2012 show that there were 8203 firms operated for the entire year. Of that number, 8,075 had annual receipts of less than $25 million per year. Based on this data, we conclude that the majority of firms operating in this industry are small.

Motion Picture and Video Distribution. This industry “comprises establishments primarily engaged in acquiring distribution rights and distributing film and video productions to motion picture theaters, television networks and stations, and exhibitors.” The Small Business Administration has developed a size standard for firms operating in this industry, which is that companies whose annual receipts are $34.5 million or less are considered small. U.S. Census Bureau data for 2012 indicate there were 307 firms that were operational throughout the entire year. Of those, 294 firms had annual receipts of less than $25 million. Based on this data, we conclude that a majority of firms operating in the motion picture and video distribution industry are small.

Television Broadcasting. This Economic Census category “comprises establishments primarily engaged in broadcasting images together with sound.” These establishments operate television broadcast studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has created the following small business size standard for such businesses: those having $41.5 million or less in annual receipts. The 2012 Economic Census reports that 751 firms in this category operated in that year. Of this number, 656 had annual receipts of less than $25 million, 25 had annual receipts ranging from $25 million to $49,999,999, and 70 had annual receipts of $50 million or more. Based on this data, we estimate that the majority of commercial television broadcasters are small entities under the applicable SBA size standard.

Additionally, the Commission has estimated the number of licensed commercial television stations to be 1374. Of this total, 1,282 stations (or 94.2%) had revenues of $38.5 million or less in 2018, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on April 15, 2019, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission estimates the number of licensed noncommercial educational (NCE) television stations to be 388. The Commission does not compile and does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.

We note, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, another element of the definition of “small business” requires that an entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television broadcast station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive.

There are also 387 Class A stations. Given the nature of these services, the Commission presumes that all of these stations qualify as small entities under the applicable SBA size standard. In addition, there are 1,892 LPTV stations and 3,621 TV translator stations. Given the nature of these services as secondary and in some cases purely a “fill-in” service, we will presume that all of these entities qualify as small entities under the above SBA small business size standard.

Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities. As discussed fully above, this Report and Order adopts revisions to the part 76 procedural rules. These amendments do not create any new reporting or recordkeeping requirements.

Steps Taken to Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance an reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

The Report and Order, as stated in Section A of this FRFA, minimizes the burdens associated with the resolution of program carriage, program access, OVS, and good-faith retransmission consent complaints by amending the rules governing two procedural aspects of the complaint process. First, we clarify that the third prong of the statute of limitations for all four types of complaints is triggered by an MVPD's denial or failure to acknowledge either a request for program carriage or a request to negotiate for program carriage, rather than delivery of a notice of intent to file a complaint on that basis. Second, we amend the rules to provide that initial decisions by an ALJ in program carriage, program access, and OVS proceedings will be automatically stayed upon the filing of exceptions, consistent with the Commission's generally applicable procedures. The rest of the procedures governing the resolution of these complaints— e.g., deadlines for filing answers and replies, adjudication procedures, etc.—remain unchanged. We find that these revisions will aid in the expeditious resolution of program access, program carriage, OVS, good-faith retransmission consent complaints consistent with the Act. These changes will reduce the costs associated with litigating program access, program carriage, OVS, good-faith retransmission consent complaints before the Commission by eliminating any confusion surrounding the statute of limitations in all four contexts and by eliminating the need to seek a stay of an initial decision issued by an ALJ pending review for program carriage, program access, and OVS complaints. This change will benefit both small and large entities.

Report to Congress. The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register .

Accordingly, it is ordered that, pursuant to the authority contained in sections 1, 4(i), 4(j), 303(r), 325, 616, 628, and 653 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 303(r), 325, 536, 548, and 573, this Report and Order is adopted. It is further ordered that the Commission's rules are hereby amended as set forth in Appendix A of the Report and Order and such amendments shall be effective 30 days after publication in the Federal Register . It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. It is further ordered that the Commission will send a copy of this Report and Order in a report to Congress and the Government Accountability Office pursuant to the Congressional Review Act (CRA). It is further ordered that, should no petitions for reconsideration or petitions for judicial review be timely filed, MB Docket No. 20-70 shall be terminated and its docket closed .

For the reasons set forth in the preamble, the Federal Communications Commission amends part 76 of title 47 of the Code of Federal Regulations as follows:

Under section 4(b)(3)(B) of the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et seq. ), we are required to make a finding whether or not a petitioned action is warranted within 12 months after receiving any petition that we have determined contains substantial scientific or commercial information indicating that the petitioned action may be warranted (“12-month finding”). We must make a finding that the petitioned action is (1) not warranted, (2) warranted, or (3) warranted but precluded. “Warranted but precluded” means that (a) the petitioned action is warranted, but the immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether species are endangered or threatened species, and (b) expeditious progress is being made to add qualified species to the Lists of Endangered and Threatened Wildlife and Plants (Lists) and to remove from the Lists species for which the protections of the Act are no longer necessary. Section 4(b)(3)(C) of the Act requires that, when we find that a petitioned action is warranted but precluded, we treat the petition as though it is resubmitted on the date of such finding, that is, requiring that a subsequent finding be made within 12 months of that date. We must publish these 12-month findings in the Federal Register .

Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations at part 424 of title 50 of the Code of Federal Regulations (50 CFR part 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Lists (found in 50 CFR part 17). The Act defines “endangered species” as any species that is in danger of extinction throughout all or a significant portion of its range (16 U.S.C. 1532(6)) and “threatened species” as any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532(20)). Under section 4(a)(1) of the Act, a species may be determined to be an endangered species or a threatened species because of any of the following five factors:

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

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

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

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

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

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

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

The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term “foreseeable future” extends only so far into the future as the Services can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.

It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

In conducting our evaluation of the five factors provided in section 4(a)(1) of the Act to determine whether the monarch butterfly meets the definition of an “endangered species” or “threatened species,” we considered and thoroughly evaluated the best scientific and commercial information available regarding the past, present, and future threats to the species. We reviewed the petition, information available in our files, and other available published and unpublished information. This evaluation may include information from recognized experts; Federal, State, and Tribal governments; academic institutions; foreign governments; private entities; and other members of the public.

The species assessment form for the monarch butterfly contains more detailed biological information, a thorough analysis of the listing factors, and an explanation of why we determined that this species meets the definition of an endangered species or a threatened species. This supporting information can be found on the internet at http://www.regulations.gov under docket number FWS-R3-ES-2020-0103. The following is an informational summary of the finding in this document.

On August 26, 2014, we received a petition from the Center for Biological Diversity (CBD), Center for Food Safety (CFS), Xerces Society for Invertebrate Conservation, and Dr. Lincoln Brower, requesting that we list the monarch butterfly ( Danaus plexippus plexippus ) as a threatened species under the Act. On December 31, 2014, we published a 90-day finding that the petition presented substantial scientific or commercial information, indicating that listing the monarch butterfly may be warranted (79 FR 78775). On March 10, 2016, the CFS and CBD filed a complaint against the Service for not issuing a finding on the petition within the statutory timeframe, and on July 5, 2016, we entered a stipulated settlement agreement with CFS and CBD to submit the 12-month finding to the Federal Register by June 30, 2019. On May 24, 2019, the court granted an extension of this deadline to December 15, 2020.

The petition that the Service received in 2014 was for listing a subspecies of the monarch butterfly ( Danaus plexippus plexippus ) (Center for Biological Diversity et al., 2014, p. 4). The petition also requested a determination of whether any new North American subspecies of Danaus plexippus should be listed. After careful examination of the literature and consultation with experts, there is no clearly agreed upon definition of potential subspecies of Danaus plexippus or where the geographic borders between these subspecies might exist. Given these findings, we examined the entire range of Danaus plexippus.

Monarch butterflies in eastern and western North America represent the ancestral origin for the species worldwide. They exhibit long-distance migration and overwinter as adults at forested locations in Mexico and California. These overwintering sites provide protection from the elements (for example, rain, wind, hail, and excessive radiation) and moderate temperatures, as well as nectar and clean water sources located nearby. Adult monarch butterflies feed on nectar from a wide variety of flowers. Reproduction is dependent on the presence of milkweed, the sole food source for larvae. Monarch butterflies are found in 90 countries, islands, or island groups. Monarch butterflies have become naturalized at most of these locations outside of North America since 1840. The populations outside of eastern and western North America (including southern Florida) do not exhibit long-distance migratory behavior.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the monarch butterfly, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary threats to the monarch's biological status include loss and degradation of habitat from conversion of grasslands to agriculture, widespread use of herbicides, logging/thinning at overwintering sites in Mexico, senescence and incompatible management of overwintering sites in California, urban development, and drought (Factor A); exposure to insecticides (Factor E); and effects of climate change (Factor E). Conservation efforts are addressing some of the threats from loss of milkweed and nectar resources across eastern and western North America and management at overwintering sites in California; however, these efforts and the existing regulatory mechanisms (Factor D) are not sufficient to protect the species from all of the threats. We found no evidence that the monarch butterfly is currently impacted at the population level by overutilization for commercial, recreational, scientific, or educational purposes (Factor B) or predation or disease (Factor C), nor did we find information to suggest that the species will be impacted by these factors in the future.

Based on the past annual censuses, the eastern and western North American migratory populations have been generally declining over the last 20 years. The monarch butterfly is also known from 29 populations that are outside of the 2 migratory North American populations. At least 1 monarch butterfly has been observed in 25 of these populations since 2000, and these are considered extant. Monarch butterfly presence within the remaining four populations has not been confirmed since 2000, but they are presumed extant. We know little about population sizes or trends of most of the populations outside of the eastern and western North American populations (except for Australia, which has an estimate of just over 1 million monarch butterflies). We do not have information related to the threats acting on the populations outside of eastern and western North America; however, we determined that 15 of the 29 populations, including the Australian population, are classified as being “at risk” due to sea-level rise or increasing temperatures, resulting from climate change.

The North American migratory populations are the largest relative to the other rangewide populations, accounting for more than 90 percent of the worldwide number of monarch butterflies. For the two North American migratory populations, we estimated the probability of the population abundance reaching the point at which extinction is inevitable (pE) for each population. In its current condition, the eastern North American population has a pE less than 10 percent over the next 10 years. The western North American population has a much higher risk of extinction due to current threats, with a pE of 60-68 percent over the next 10 years. Looking across the range of future conditions that we can reasonably determine, the pE for the eastern population is estimated to be 24 percent to 46 percent in 30 years, and the pE for the western population is estimated to be 92 percent to 95 percent in 30 years. These pE estimates incorporate the primary factors that influence the populations' resiliency, including availability of milkweed and nectar resources (losses as well as gains from conservation efforts), loss and degradation of overwintering habitat, insecticides, and effects of climate change. Additionally, at the current and projected population numbers, both the eastern and western populations become more vulnerable to catastrophic events (for example, extreme storms at the overwintering habitat). Also, under different climate change scenarios, the number of days and the area in which monarch butterflies will be exposed to unsuitably high temperatures will increase markedly. The potential loss of the North American migratory populations from these identified threats would substantially reduce the species' resiliency, representation, and redundancy.

To alleviate threats to the monarch butterfly, numerous conservation efforts have been developed and/or implemented since the species was petitioned in 2014, and these were considered in our assessment of the status of the species. Protection, restoration, enhancement and creation of habitat is a central aspect of recent monarch butterfly conservation strategies. In the breeding and migratory grounds, these habitat conservation strategies include the enhancement and creation of milkweed and nectar sources. Improved management at overwintering sites in California has been targeted to improve the status of western North American monarch butterflies. Major overarching landscape-level conservation plans and efforts include the Mid-America Monarch Conservation Strategy developed by the Midwest Association of Fish and Wildlife Agencies (MAFWA) and the Western Monarch Butterfly Conservation Plan developed by the Western Association of Fish and Wildlife Agencies (WAFWA). In early 2020, the Nationwide Candidate Conservation Agreement for Monarch Butterfly on Energy and Transportation Lands (CCAA/CCA) was finalized and will contribute to meeting the MAFWA Strategy and WAFWA Plan goals. Under this agreement, energy and transportation entities will provide habitat for the species along energy and transportation rights-of-way corridors across the country, including a 100 foot extension of the right-of-way onto private agricultural lands. Participants will carry out conservation measures to reduce or remove threats to the species and create and maintain habitat annually. In exchange for implementing voluntary conservation efforts and meeting specific requirements and criteria, those businesses and organizations enrolled in the CCAA will receive assurance from the Service that they will not have to implement additional conservation measures should the species be listed. The goal of the CCAA, which participants may continue to join until a final listing rule is published, is enrollment of up to 26 million acres of land in the agreement, providing over 300 million additional stems of milkweed.

Many conservation efforts implemented under Federal, Tribal, State, or other programs, such as the Farm Service Agency's Conservation Reserve Program, the Natural Resource Conservation Service's (NRCS) Environmental Quality Incentives Program (EQIP), Agricultural Conservation Easement Program and Conservation Stewardship Program, and the Service's Partners For Fish and Wildlife Program, are expected to contribute to the overarching habitat and population goals of the MAFWA Strategy and WAFWA Plan. Smaller conservation efforts implemented by local governments, non-governmental organizations (NGOs), private businesses, and interested individuals will also play an important role in reaching habitat and population goals established in the MAFWA Strategy and WAFWA Plan. The Service developed the Monarch Conservation Database (MCD) to capture information about monarch butterfly conservation plans and efforts to inform the listing decision. As of June 1, 2020, there are 48,812 complete monarch butterfly conservation effort records in the MCD that have a status of completed, implemented, or planned since 2014, and 113 monarch butterfly conservation plans. Among the efforts included in the MCD are those provided by NRCS from EQIP, their program designed to provide financial and technical assistance to agricultural producers to address natural resource concerns. Across the 10 states that NRCS targeted for monarch butterfly conservation efforts through EQIP (Illinois, Indiana, Iowa, Kansas, Minnesota, Missouri, Ohio, Oklahoma, Texas, and Wisconsin), efforts on 16,952 acres have already been implemented and NCRS anticipates conservation on an additional 31,322 acres through ongoing enrollment (see https://www.fws.gov/savethemonarch/mcd.html ). In addition to conservation of the breeding and migratory habitats, land managers in California are developing and implementing grove management strategies within the western population's overwintering sites as well.

The monarch butterfly species assessment form and the Monarch Species Status Assessment report (Service 2020) provide additional details on the status of the monarch butterfly and the conservation efforts listed here (see ADDRESSES , above).

On the basis of the best scientific and commercial information available, we find that the petitioned action to list the monarch butterfly under the Act is warranted. We will make a determination on the status of the species as threatened or endangered when we complete a proposed listing determination. When we complete a proposed listing determination, we will examine whether the species may be endangered or threatened throughout all of its range or whether the species may be endangered or threatened in a significant portion of its range. However, an immediate proposal of a regulation implementing this action is precluded by work on higher priority listing actions and final listing determinations. This work includes all the actions listed in the National Listing Workplan discussed below under Preclusion and in the tables below under Expeditious Progress, as well as other actions at various stages of completion, such as 90-day findings for new petitions.

To make a finding that a particular action is warranted but precluded, the Service must make two determinations: (1) That the immediate proposal and timely promulgation of a final regulation is precluded by pending proposals to determine whether any species is endangered or threatened; and (2) that expeditious progress is being made to add qualified species to either of the Lists and to remove species from the Lists (16 U.S.C. 1533(b)(3)(B)(iii)).

A listing proposal is precluded if the Service does not have sufficient resources available to complete the proposal, because there are competing demands for those resources, and the relative priority of those competing demands is higher. Thus, in any given fiscal year (FY), multiple factors dictate whether it will be possible to undertake work on a proposed listing regulation or whether promulgation of such a proposal is precluded by higher priority listing actions—(1) The amount of resources available for completing the listing function, (2) the estimated cost of completing the proposed listing regulation, and (3) the Service's workload, along with the Service's prioritization of the proposed listing regulation in relation to other actions in its workload.

The resources available for listing actions are determined through the annual Congressional appropriations process. In FY 1998 and for each fiscal year since then, Congress has placed a statutory cap on funds that may be expended for the Listing Program (spending cap). This spending cap was designed to prevent the listing function from depleting funds needed for other functions under the Act (for example, recovery functions, such as removing species from the Lists) or for other Service programs (see House Report 105-163, 105th Congress, 1st Session, July 1, 1997). The funds within the spending cap are available to support work involving the following listing actions: Proposed and final rules to add species to the Lists or to change the status of species from threatened to endangered; 90-day and 12-month findings on petitions to add species to the Lists or to change the status of a species from threatened to endangered; annual “resubmitted” petition findings on prior warranted-but-precluded petition findings as required under section 4(b)(3)(C)(i) of the Act; critical habitat petition findings; proposed rules designating critical habitat or final critical habitat determinations; and litigation-related, administrative, and program-management functions (including preparing and allocating budgets, responding to Congressional and public inquiries, and conducting public outreach regarding listing and critical habitat).

For more than two decades the size and cost of the workload in these categories of actions have far exceeded the amount of funding available to the Service under the spending cap for completing listing and critical habitat actions under the Act. Since we cannot exceed the spending cap without violating the Anti-Deficiency Act (31 U.S.C. 1341(a)(1)(A)), each year we have been compelled to determine that work on at least some actions was precluded by work on higher priority actions. We make our determinations of preclusion on a nationwide basis to ensure that the species most in need of listing will be addressed first, and because we allocate our listing budget on a nationwide basis. Through the listing cap and the amount of funds needed to complete court-mandated actions within the cap, Congress and the courts have in effect determined the amount of money remaining (after completing court-mandated actions) for listing activities nationwide. Therefore, the funds that remain within the listing cap—after paying for work needed to comply with court orders or court-approved settlement agreements—set the framework within which we make our determinations of preclusion and expeditious progress.

For FY 2019, through the Consolidated Appropriations Act of 2019 (Pub. L. 116-6, February 15, 2019), Congress appropriated the Service $18,318,000 under a consolidated cap for all domestic and foreign listing work, including status assessments, listings, domestic critical habitat determinations, and related activities. For FY 2020, through the Further Consolidated Appropriations Act, 2020 (Pub. L. 116-94, December 20, 2019), Congress appropriated $20,318,000 for all domestic and foreign listing work. The amount of funding Congress will appropriate in future years is uncertain.

The work involved in preparing various listing documents can be extensive, and may include, but is not limited to: Gathering and assessing the best scientific and commercial data available and conducting analyses used as the basis for our decisions; writing and publishing documents; and obtaining, reviewing, and evaluating public comments and peer-review comments on proposed rules and incorporating relevant information from those comments into final rules. The number of listing actions that we can undertake in a given year also is influenced by the complexity of those listing actions; that is, more complex actions generally are more costly. Our practice of proposing to designate critical habitat concurrent with listing species requires additional coordination and an analysis of the economic impacts of the designation, and thus adds to the complexity and cost of our work. Since completing all of the work for outstanding listing and critical habitat actions has for so long required more funding than has been available within the spending cap, the Service has developed several ways to determine the relative priorities of the actions within its workload to identify the work it can complete with the funding it has available for listing and critical habitat actions each year.

The Service's Listing Program workload is broadly composed of four types of actions, which the Service prioritizes as follows: (1) Compliance with court orders and court-approved settlement agreements requiring that petition findings or listing or critical habitat determinations be completed by a specific date; (2) essential litigation-related, administrative, and listing program-management functions; (3) section 4 (of the Act) listing and critical habitat actions with absolute statutory deadlines; and (4) section 4 listing actions that do not have absolute statutory deadlines.

In previous years, the Service received many new petitions, including multiple petitions to list numerous species—a single petition even sought to list 404 domestic species. The emphasis that petitioners placed on seeking listing for hundreds of species at a time through the petition process significantly increased the number of actions within the third category of our workload—actions that have absolute statutory deadlines for making findings on those petitions. In addition, the necessity of dedicating all of the Listing Program funding towards determining the status of 251 candidate species and complying with other court-ordered requirements between 2011 and 2016 added to the number of petition findings awaiting action. Because we are not able to work on all of these at once, the Service's most recent effort to prioritize its workload focuses on addressing the backlog in petition findings that has resulted from the influx of large multispecies petitions and the 5-year period in which the Service was compelled to suspend making 12-month findings for most of those petitions. The number of petitions that are awaiting status reviews and accompanying 12-month findings illustrates the considerable extent of this backlog. As a result of the outstanding petitions to list hundreds of species and our efforts to make initial petition findings within 90 days of receiving the petition to the maximum extent practicable, at the beginning of FY 2020, we had 422 12-month petition findings for domestic species yet to be initiated and completed.

To determine the relative priorities of the outstanding 12-month petition findings, the Service developed a prioritization methodology (methodology) (81 FR 49248; July 27, 2016) after providing the public with notice and an opportunity to comment on the draft methodology (81 FR 2229; January 15, 2016). Under the methodology, we assign each 12-month finding to one of five priority bins: (1) The species is critically imperiled; (2) strong data are already available about the status of the species; (3) new science is underway that would inform key uncertainties about the status of the species; (4) conservation efforts are in development or underway and likely to address the status of the species; or (5) the available data on the species are limited. As a general rule, 12-month findings with a lower bin number have a higher priority than, and are scheduled before, 12-month findings with a higher bin number. However, we make some limited exceptions—for example, we may schedule a lower priority finding earlier if batching it with a higher priority finding would generate efficiencies. We may also consider where there are any special circumstances whereby an action should be bumped up (or down) in scheduling. One limitation that might result in divergence from priority order is when the current highest priorities are clustered in a geographic area, such that our scientific expertise at the field office level is fully occupied with their existing workload. We recognize that the geographic distribution of our scientific expertise will in some cases require us to balance workload across geographic areas. Since before Congress first established the spending cap for the Listing Program in 1998, the Listing Program workload has required considerably more resources than the amount of funds Congress has allowed for the Listing Program. Therefore, it is important that we be as efficient as possible in our listing process.

In 2016, we assigned the 12-month finding for monarch butterfly to bin 4 due to the many conservation efforts underway to address threats facing the species. We determined that these efforts were likely to reduce threats from loss of breeding habitat for the eastern and western North American populations and overwintering habitat for the western North American population. However, due to the stipulated settlement agreement, we are completing the 12-month finding for monarch butterfly before other higher priority actions.

After finalizing the prioritization methodology, we then applied that methodology to develop a multiyear National Listing Workplan (Workplan) for completing the outstanding status assessments and accompanying 12-month findings. The purpose of the Workplan is to provide transparency and predictability to the public about when the Service anticipates completing specific 12-month findings while allowing for flexibility to update the Workplan when new information changes the priorities. In May 2019, the Service released its updated Workplan for addressing the Act's domestic listing and critical habitat decisions over the subsequent 5 years. The updated Workplan identified the Service's schedule for addressing all domestic species on the candidate list and conducting 267 status reviews and accompanying 12-month findings by FY 2023 for domestic species that have been petitioned for Federal protections under the Act. As we implement our Workplan and work on proposed rules for the highest priority species, we increase efficiency by preparing multispecies proposals when appropriate, and these may include species with lower priority if they overlap geographically or have the same threats as one of the highest priority species.

Overall, 161 species on the Workplan (64 percent) have a higher bin number than the monarch butterfly. Current funding levels would not be sufficient to complete all of those 12-month findings in FY 2020, and listing appropriations for FY 2021 are not determined yet. The National Listing Workplan is available online at https://www.fws.gov/endangered/what-we-do/listing-workplan.html.

An additional way in which we determine relative priorities of outstanding actions in the section 4 program is application of the listing priority guidelines (48 FR 43098; September 21, 1983). Under those guidelines, which apply primarily to candidate species, we assign each candidate a listing priority number (LPN) of 1 to 12, depending on the magnitude of threats (high or moderate to low), immediacy of threats (imminent or nonimminent), and taxonomic status of the species (in order of priority: Monotypic genus (a species that is the sole member of a genus), a species, or a part of a species (subspecies or distinct population segment)). The lower the listing priority number, the higher the listing priority (that is, a species with an LPN of 1 would have the highest listing priority). A species with a higher LPN would generally be precluded from listing by species with lower LPNs, unless work on a proposed rule for the species with the higher LPN can be combined for efficiency with work on a proposed rule for other high-priority species.

Based on our listing priority system, we are assigning an LPN of 8 for the monarch butterfly. This priority number indicates the magnitude of threats is moderate to low and those threats are imminent. The priority number also reflects that we are evaluating monarch butterflies at the species level. We will continue to monitor the threats to the monarch butterfly and the species' status on an annual basis, and should the magnitude or the imminence of the threats change, we will revisit our assessment of the LPN.

The National Listing Workplan that the Service released in 2019 outlined work for domestic species over the period from 2019 to 2023. Tables 1 and 2 under Expeditious Progress, below, identify the higher priority listing actions that we completed through FY 2020 (September 30, 2020), as well as those we have been working on in FY 2020 but have not yet completed. For FY 2020, our National Listing Workplan includes 74 12-month findings or proposed listing actions that are at various stages of completion at the time of this finding. In addition to the actions scheduled in the National Listing Workplan, the overall Listing Program workload also includes the development and revision of listing regulations that are required by new court orders or settlement agreements, or to address the repercussions of any new court decisions, as well as proposed and final critical habitat designations or revisions for species that have already been listed. The Service's highest priorities for spending its funding in FY 2019 and FY 2020 are actions included in the Workplan and actions required to address court decisions. As described in “Prioritizing Listing Actions,” above, listing of the monarch butterfly is a lower priority action than these types of work. Therefore, these higher priority actions precluded immediate proposal of a regulation implementing the petitioned action in FY 2020, and the Service anticipates that they will continue to preclude work on listing the monarch butterfly in FY 2021 and the near future.

As explained above, a determination that listing is warranted but precluded must also demonstrate that expeditious progress is being made to add and remove qualified species to and from the Lists. Please note that, in the Code of Federal Regulations, the “Lists” are grouped as one list of endangered and threatened wildlife (50 CFR 17.11(h)) and one list of endangered and threatened plants (50 CFR 17.12(h)). However, the “Lists” referred to in the Act mean one list of endangered species (wildlife and plants) and one list of threatened species (wildlife and plants). Therefore, under the Act, expeditious progress includes actions to reclassify species—that is, either remove them from the list of threatened species and add them to the list of endangered species, or remove them from the list of endangered species and add them to the list of threatened species.

As with our “precluded” finding, the evaluation of whether expeditious progress is being made is a function of the resources available and the competing demands for those funds. As discussed earlier, the FY 2020 appropriations law included a spending cap of $20,318,000 for listing activities, and the FY 2019 appropriations law included a spending cap of $18,318,000 for listing activities.

As discussed below, given the limited resources available for listing, the competing demands for those funds, and the completed work cataloged in the tables below, we find that we are making expeditious progress in adding qualified species to the Lists.

The work of the Service's domestic listing program in FY 2019 and FY 2020 (as of September 30, 2020) includes all three of the steps necessary for adding species to the Lists: (1) Identifying species that may warrant listing (90-day petition findings); (2) undertaking an evaluation of the best available scientific data about those species and the threats they face to determine whether or not listing is warranted (a status review and accompanying 12-month finding); and (3) adding qualified species to the Lists (by publishing proposed and final listing rules). We explain in more detail how we are making expeditious progress in all three of the steps necessary for adding qualified species to the Lists (identifying, evaluating, and adding species). Subsequent to discussing our expeditious progress in adding qualified species to the List, we explain our expeditious progress in removing from the Lists species that no longer require the protections of the Act.

First, we are making expeditious progress in identifying species that may warrant listing. In FY 2019 and FY 2020 (as of September 30, 2020), we completed 90-day findings on petitions to list 14 species.

Second, we are making expeditious progress in evaluating the best scientific and commercial data available about species and threats they face (status reviews) to determine whether or not listing is warranted. In FY 2019 and FY 2020 (as of September 30, 2020), we completed 12-month findings for 69 species. In addition, we funded and worked on the development of 12-month findings for 34 species and proposed listing determinations for 9 candidates. Although we did not complete those actions during FY 2019 or FY 2020 (as of September 30, 2020), we made expeditious progress towards doing so by initiating and making progress on the status reviews to determine whether adding the species to the Lists is warranted.

Third, we are making expeditious progress in adding qualified species to the Lists. In FY 2019 and FY 2020 (as of September 30, 2020), we published final listing rules for 7 species, including final critical habitat designations for 1 of those species and final protective regulations under section 4(d) of the Act for 2 of the species. In addition, we published proposed rules to list an additional 20 species (including concurrent proposed critical habitat designations for 13 species and concurrent protective regulations under the Act's section 4(d) for 14 species).

As required by the Act, we are also making expeditious progress in removing species from the Lists that no longer require the protections of the Act. Specifically, we are making expeditious progress in removing (delisting) domestic species, as well as reclassifying endangered species to threatened species status (downlisting). This work is being completed under the Recovery program in light of the resources available for recovery actions, which are funded through the recovery line item in the budget of the Endangered Species Program. Because recovery actions are funded separately from listing actions, they do not factor into our assessment of preclusion; that is, work on recovery actions does not preclude the availability of resources for completing new listing work. However, work on recovery actions does count towards our assessment of making expeditious progress because the Act states that expeditious progress includes both adding qualified species to, and removing qualified species from, the Lists of Endangered and Threatened Wildlife and Plants. During FY 2019 and FY 2020 (as of September 30, 2020), we finalized downlisting of 1 species, finalized delisting rules for 7 species, proposed downlisting of 7 species, and proposed delisting of 11 species. The rate at which the Service has completed delisting and downlisting actions in FY 2019 and FY 2020 (as of September 30, 2020) is higher than any point in the history of the Act.

The tables below catalog the Service's progress in FY 2019 and FY 2020 (as of September 30, 2020) as it pertains to our evaluation of making expeditious progress. Table 1 includes completed and published domestic listing actions; Table 2 includes domestic listing actions funded and initiated in previous fiscal years and in FY 2020 that are not yet complete as of September 30, 2020; and Table 3 includes completed and published proposed and final downlisting and delisting actions for domestic species.

Section 4 of the ESA provides for NMFS and the U.S. Fish and Wildlife Service (FWS) to make determinations as to the endangered or threatened status of “species” in response to petitions or on their own initiative. In accordance with the ESA, we (NMFS) make determinations as to the threatened or endangered status of species by regulation. These regulations provide the text for each species' listing and include the content required by the ESA section 4(c)(1). We enumerate and maintain a list of species under our jurisdiction which we have determined to be threatened or endangered at 50 CFR 223.102 (threatened species) and 50 CFR 224.101 (endangered species) (hereafter referred to as the “NMFS Lists”). The FWS maintains two master lists of all threatened and endangered species, i.e., both species under NMFS's jurisdiction and species under FWS's jurisdiction (the “FWS Lists”) at 50 CFR 17.11 (threatened and endangered animals) and 50 CFR 17.12 (threatened and endangered plants). The term “species” for listing purposes under the ESA includes the following entities: Species, subspecies, and, for vertebrates only, “distinct population segments (DPSs).” Steelhead are listed as DPSs and Pacific salmon are listed as “evolutionarily significant units (ESUs),” which are essentially equivalent to DPSs for the purpose of the ESA.

For West Coast salmon and steelhead, many of the ESU and DPS descriptions include fish originating from specific artificial propagation programs ( e.g., hatcheries) that, along with their naturally-produced counterparts, are included as part of the listed species. NMFS' Policy on the Consideration of Hatchery-Origin Fish in Endangered Species Act Listing Determinations for Pacific Salmon and Steelhead (Hatchery Listing Policy) (70 FR 37204, June 28, 2005) guides our analysis of whether individual hatchery programs should be included as part of the listed species. The Hatchery Listing Policy states that hatchery programs will be considered part of an ESU/DPS if they exhibit a level of genetic divergence relative to the local natural population(s) that is not more than what occurs within the ESU/DPS. In applying the Hatchery Listing Policy, we use a variety of sources to reach conclusions about divergence.

Section 4(c)(2)(A) of the ESA requires regular review of listed species to determine whether a species should be delisted, reclassified, or retain its current classification (16 U.S.C. 1533(c)(2)). We completed our most recent 5-year review of the status of ESA-listed salmon ESUs and steelhead DPSs in California, Oregon, Idaho, and Washington in 2016 (81 FR 33468, May 26, 2016). As part of the 5-year review, we reviewed the classification of all West Coast salmon and steelhead hatchery programs, guided by our Hatchery Listing Policy. We considered the origin for each hatchery stock, the location of release of hatchery fish, and the degree of known or inferred genetic divergence between the hatchery stock and the local natural population(s). A NMFS internal memorandum (Jones 2015) explains the results of our hatchery program review. Jones (2015) found that, based on the best scientific evidence available, some hatchery programs should be reclassified, that is, added to or removed from the description of the relevant ESUs/DPSs.

On October 21, 2016, we proposed to revise the NMFS Lists based on the aforementioned review and we solicited public comments (81 FR 72759). The proposed revisions to listed species descriptions included:

(1) Adding new hatchery programs that meet the Hatchery Listing Policy criteria for inclusion, or adding programs that resulted from dividing existing listed hatchery programs into separate programs with new names;

(2) Removing hatchery programs that have been terminated and do not have any fish remaining from the program, or removing previously listed hatchery programs that were subsumed by another listed program;

(3) Revising some hatchery program names for clarity or to standardize conventions for naming programs; and

(4) Making minor changes in terminology to standardize species descriptions.

The approach we used in the proposed rule and this final rule to determine which hatchery programs are included within an ESU or DPS is consistent with the approach taken in the 2016 status review. That is, as part of our status reviews, we reviewed hatchery programs under our Hatchery Listing Policy and concluded that some changes to the list of hatchery programs included in certain ESUs and DPSs were warranted. Those changes included updates to hatchery program names as well as the inclusion of new programs and the removal of programs that had been discontinued. However, as indicated in the 2016 status review, none of these changes resulted in a change to the listing status of an ESU or DPS because none of the changes affected the extinction risk of the ESU or DPS.

We received 23 comments on the proposed rule via www.regulations.gov, letter, or email. These comments were submitted by individuals, state agencies, non-governmental organizations, and tribes or tribal representatives. Many of the submissions included similar comments, and several were form letters. We reviewed all comments for substantive issues or new information and identified several broad issues of concern. In the text below we have organized comments by major issue categories, summarized the comments for brevity and clarity, and addressed similar comments with common responses where possible. After considering all comments, we made changes or clarifications in the final rule as explained below.

Comment 1—Genetic and Ecological Risk of Hatchery Programs: Numerous commenters stated their opposition to the release of hatchery fish into areas with natural populations. They also opposed adding new hatchery programs to ESA-listed ESUs or DPSs. Commenters stated that NMFS is failing to adequately address the deleterious genetic and ecological effects of hatchery fish, and requested that we convene a panel of experts to revise and update our Hatchery Listing Policy.

Response: This final rule arises from our obligation under ESA section 4(c)(2) to regularly assess the status of listed species and determine whether they should be de-listed or changed in classification from threatened to endangered or vice-versa. 16 U.S.C. 1531(c)(2). In 2016, we assessed the composition of salmonid ESUs and DPSs pursuant to the requirements of the ESA and our Hatchery Listing Policy to determine whether any changes were warranted.

The Hatchery Listing Policy was developed, in part, in response to the lawsuit Alsea Valley Alliance v. Evans (2001) ( Alsea decision), where a U.S. District Court ruled that NMFS cannot exclude hatchery fish from an ESA listing if NMFS determines that such fish comprise part of the listed ESU/DPS under the applicable ESA standards. The Hatchery Listing Policy was subsequently upheld in the lawsuit Trout Unlimited v. Lohn (2009). In that case, the court upheld NMFS' determination to include both hatchery and natural fish in a listed steelhead DPS, despite the potential threats posed by hatchery fish. The court noted that the listing process comprises two distinct phases: The initial decision regarding the composition of the DPS, and the subsequent decision whether to list the DPS.

Our recommendation to include a hatchery program in an ESA-listed ESU or DPS does not reflect a de-emphasis of the risks from hatchery programs. The Hatchery Listing Policy guiding our recommendation acknowledges such risks and their impacts on the adaptive genetic diversity, reproductive fitness, and productivity of the ESU. If we determine that a hatchery program warrants inclusion in an ESU or DPS, we consider effects of the hatchery fish on the natural fish comprising the ESU/DPS in determining how the ESU/DPS should be classified under ESA section 4(c). For the hatchery programs that are being added, a summary of findings from this analysis can be found in Jones (2015).

The Hatchery Listing Policy states that hatchery programs will be considered part of an ESU/DPS if they exhibit a level of genetic divergence relative to the local natural population(s) that is not more than what occurs within the ESU/DPS. We are not changing or weakening our application of this moderate divergence criterion relative to how we have applied it in the past.

We do not believe there is a need to revise our Hatchery Listing Policy, and reiterate that the policy does recognize the risks from hatchery programs and allows us to evaluate them in a manner commensurate with the potential benefits of the programs.

Of note, many hatchery programs have undergone or are undergoing review under our ESA section 4(d) regulations at 50 CFR 223.203(d)(5) (4(d) Rule). When NMFS determines that a Hatchery and Genetic Management Plan (HGMP) meets the 4(d) Rule requirements and approves the HGMP, then the ESA's prohibitions against take of threatened species do not apply to program activities. When we list a hatchery program under the ESA, it does not automatically receive an exemption from the ESA's prohibitions against take. In evaluating whether to approve an HGMP under the 4(d) Rule, NMFS carries out consultation under ESA section 7 to ensure that HGMP implementation is not likely to jeopardize any listed species or destroy or adversely modify its critical habitat. This provides another means for NMFS to evaluate the effects of hatchery fish on the ESU/DPS to which they belong and recommend management measures to improve hatchery operations.

Comment 2—Use of Best Available Science: Numerous commenters stated that the Hatchery Listing Policy and the moderate divergence criterion are not consistent with the best available science. Three commenters stated that use of a criterion that focuses solely on genetics—without attention to life history, ecology, and population demographics—is inadequate. Related comments questioned the current relevance of supporting documents including the Jones (2011, 2015) memos and two reports, the Salmon and Steelhead Assessment Group's (SSHAG), “Hatchery Broodstock Summaries and Assessments for Chum, Coho, and Chinook,” and the Salmonid Hatchery Inventory and Effects Evaluation Report (SHIEER) titled “An Evaluation of the Effects of Artificial Propagation on the Status and Likelihood of Extinction of West Coast Salmon and Steelhead under the Federal Endangered Species Act” (SSHAG 2003, SHIEER 2004).

Response: The best available information upon which to determine whether hatchery programs should be included in a salmon ESU or steelhead DPS is referenced in Jones (2015). This report, in conjunction with individual HGMPs and associated section 7 consultations, is the most comprehensive and current information available. In the few cases where commenters provided new information, we considered the information (see Revisions to Threatened Species Descriptions and Revisions to Endangered Species Descriptions, below). In most cases, commenters provided no new information for us to consider. Under the Hatchery Listing Policy, we base our determinations of species status under the ESA on the status of the entire ESU/DPS, including hatchery fish. We recognize that important genetic resources representing the ecological and genetic diversity of species can reside in hatchery fish as well as natural fish. We apply the Hatchery Listing Policy in support of the conservation of naturally-spawning salmon and the ecosystems upon which they depend, consistent with section 2(b) of the ESA.

Comment 3—Justification for the Rule and Data Sources: Numerous comments asserted that the proposed rule did not provide adequate justification to support our proposed revisions. Comments requested more detail about the criteria, data, and analytical methods that we used to evaluate each hatchery program. Several comments asked how the level of divergence between hatchery and natural populations is measured. Other comments stated that pHOS (proportion of spawners of hatchery origin) and PNI (the proportionate natural influence in a natural salmon or steelhead population) metrics should have been explained and evaluated in the proposed rule. In sum, the commenters requested that we more clearly link our proposed revisions to supporting documentation, including the 5-year status reviews and relevant HGMPs.

Response: We apply the best available information when determining whether a hatchery program should be included in an ESU or DPS. The primary sources of information that NMFS considers in defining each ESU/DPS, including recently approved HGMPs, are referenced in Jones (2015), which was cited in the proposed rule. NMFS' most recent 5-year reviews (81 FR 33468, May 26, 2016), which were also cited in the proposed rule, describe relationships, risks, benefits, and uncertainties of specific hatchery stocks relative to natural populations of ESUs/DPSs. Links to these 5-year reviews can be found on our website ( https://www.fisheries.noaa.gov/action/2016-5-year-reviews-28-listed-species-pacific-salmon-steelhead-and-eulachon ). For many species, data are not available to quantitatively assess the level of genetic divergence between a hatchery stock and natural populations, and so surrogate information must be used.

We agree that the pHOS and PNI metrics are helpful in assessing the effects of hatchery programs and we did evaluate the most recently available pHOS and PNI information. The widely-used demographic metrics pHOS, pNOB (proportion of broodstock of natural origin) and PNI are typically used as measures of genetic risk associated with program operations. In the absence of historical genetic databases, we use these metrics extensively in making decisions regarding levels of divergence. A summary of the analysis of these metrics for each hatchery program can be found in Jones (2015).

Comment 4—Need for Approved HGMPs: A commenter stated that the listed ESU/DPS should only include hatchery programs that have been evaluated under the ESA. The commenter asserted that the proposed rule “notably leaves out the critical details within approved HGMPs that link to broodstock source, breeding and rearing protocols, monitoring and genetics,” and “without that information any inclusion of additional hatcheries, or even previously included hatcheries, lacks the scientific rigor that is required to include a hatchery population within the DPS/ESU.”

Response: Under our Hatchery Listing Policy, we assess whether hatchery programs should be included in an ESU or DPS based on the best available scientific information and the standards identified in the policy. By contrast, evaluation of an HGMP under the ESA is a separate process from our listing determinations under ESA section 4(c). HGMP reviews involve a separate, legal determination as to whether a hatchery program qualifies for an exemption from the ESA's take prohibition. The inclusion of a hatchery program in a listing does not authorize the propagation of that hatchery stock, and each hatchery program must still undergo ESA review before it can be exempted from the ESA's take prohibition.

Comment 5—Reproductive Fitness of Hatchery Fish: A commenter asked, “Where are the documents that set forth the reproduction success rates of the genetically similar hatchery fish to establish whether they can promote wild fish recovery?”

Response: The relevant information associated with the decision herein is whether the level of genetic divergence of the hatchery stock is not more than what occurs within the natural population. Consequently, reproductive success was not evaluated. An evaluation of available reproductive success information would occur during our consideration of an HGMP.

Comment 6—Conservation Value of Hatchery Programs Using Local Broodstock: Several commenters stated that NMFS has acknowledged the limited conservation value of segregated hatchery programs using broodstocks derived from local populations, yet has adopted a standard that encompasses virtually all hatchery programs using local broodstock. Several commenters also recommended that we exclude “segregated” hatchery programs because they serve no conservation purpose ( e.g., the Deep River Net Pen-Washougal, Klaskanine Hatchery, Bonneville Hatchery, and Cathlamet Channel Net Pen Programs within the Lower Columbia River ESU). The commenter stated that high stray rates from these segregated hatchery programs result in the fish from these programs appearing to be “no more than moderately diverged” from natural populations, while the listed natural populations decrease in fitness and recovery potential as a result of genetic introgression from the hatchery strays.

Response: The fundamental issue in determining the listing status of a hatchery program is its divergence from natural populations, not the purpose of the hatchery ( i.e., conservation or harvest). Including a hatchery program in an ESU or DPS listing does not endorse its use for any purpose, but rather acknowledges that fish from the program are within the range of genetic diversity exhibited by naturally produced fish in the ESU/DPS. Many hatchery programs designed without conservation intent use local broodstock. We evaluate any potential impact associated with the release of hatchery program fish in the wild during our consideration of an HGMP.

Comment 7—Genetic Introgression: Several commenters stated that genetic introgression (the transfer of genetic information) between hatchery and natural fish increases the likelihood that hatchery stocks will qualify for inclusion in an ESU/DPS listing when using the moderate divergence criterion. One commenter provided an analysis for Puget Sound steelhead, calculating Fst/Gst for five listed natural populations and two unlisted, segregated hatchery programs derived from Chambers Creek hatchery broodstock. The commenter noted that in their example, NMFS correctly declined to list the segregated steelhead programs under the ESA, due to their high degree of domestication. The commenter stated that absent biologically credible, measurable criteria for determining divergence, decisions to either include or exclude hatchery populations from listing will be arbitrary and inconsistent.

Response: As stated above, NMFS is required to use the best available information when making ESA listing decisions. The ESA requires that we conduct status reviews for listed species every 5 years. Prior to our review, we publish a Federal Register notice requesting information pertinent to our reviews. We then review this information to inform our assessment of the species' ESA status. As part of that assessment, we consider species composition, including whether any hatchery programs should be included in the listed entity.

For many listed ESUs/DPSs, metrics such as Fst, or even pHOS and PNI (as mentioned in an earlier comment) are not available. As a result, mandating a quantitative genetics approach to our listing decisions is impossible due to such data limitations. As mentioned above, we are required to decide whether or not to include a hatchery program as part of a listed ESU/DPS using the best available information. The analysis of Puget Sound steelhead provided by the commenter noted above provides a good example of the limitations of genetic data. Based on molecular genetic markers, winter steelhead derived from Chambers Creek hatchery broodstock do not appear to be substantively diverged from other naturally-spawning populations, suggesting that such hatchery fish may warrant listing as part of the Puget Sound steelhead DPS. However, fish from this hatchery program are not listed due to domestication, which has occurred over several generations and resulted in a noticeably earlier run timing and poorer productivity than natural typical Puget Sound steelhead populations.

In our analysis we use a qualitative categorization scheme based on SSHAG (2003), which we believe is the best way to consistently evaluate hatchery programs at this time. We categorize each hatchery program as category 1 through category 4, based on the program's degree of divergence from the natural population. Programs designated category 1 and 2 are included as part of the listed ESU/DPS because they have a minimal to moderate level of genetic divergence based on the best available information. Furthermore, our determination whether to include a hatchery program in a listing, as we mentioned above, is not to be conflated with program purpose or program type.

Comment 8—Release Location: A commenter inquired about how release location affects our evaluation of the listing status of a hatchery program. The commenter stated that “if fish used in a hatchery program are of ESU origin and within the accepted divergence limits of the ESU, then it would seem that these fish, biologically, are part of the ESU, no matter the location of release from a hatchery program.”

Response: We agree in circumstances where those release locations are within the ESU/DPS range, and this idea is the impetus for many of our decisions to add certain hatchery programs to the listing. However, there are a few exceptions, largely for reintroduction programs where listed fish are moved to a separate geographic location and used to create a stock that adapts, over time, to the new geographic location ( i.e., coho salmon in the Upper Columbia and Snake River Basins).

Comment 9—Puget Sound Steelhead Hatchery Program Divergence: One commenter stated that the Jones (2015) memo cited in the proposed rule seems to carry forward estimates of divergence between hatchery and natural production from the 2003 SSHAG document, which were overestimated out of caution, due to a lack of data. The commenter stated that more recent information is available in revised HGMPs for Puget Sound steelhead, for example the proportion of natural-origin broodstock used in each hatchery program and the proportion of hatchery fish found in carcass surveys of the rivers. The degree of gene flow inferred from these revised HGMPs indicates that the `moderate' divergence classification (category 2 in the Jones 2015 memo) should be replaced with `minimal' divergence (category 1 in the Jones 2015 memo).

Response: There are only a few steelhead programs in Puget Sound where hatchery and natural fish are integrated. In Table 4 of Jones (2015), we identified three programs that are ongoing; the Green River Natural, the White River Supplementation, the Elwha River. We are adding the new Fish Restoration Facility program to the Puget Sound steelhead DPS. All of these are classified as category 1's with the exception of the Green River Natural program, which is classified as a category 1 or 2. Thus, we think our listing decisions are in line with the commenter's statement.

Comment 10—Experimental Populations: Two commenters stated that hatchery fish used for experimental populations should “not necessarily” be excluded from listing. The commenters pointed out that hatchery fish used to establish an experimental population may meet the criteria for inclusion in an ESU/DPS and could potentially be used later for recovery.

Response: The ESA includes provisions in section 10 for designating experimental populations (50 CFR 17.80 through 17.86). All such populations have potential value for the recovery of salmon and steelhead, but ESA section 10(j) requires that they be designated either as essential or nonessential for recovery. Nonessential experimental populations (NEP) are treated as proposed for listing under the ESA for purposes of section 7 of the ESA, while essential populations are treated as a threatened species. To date, all salmon/steelhead hatchery programs associated with experimental populations are designated as nonessential. Under the ESA, NEPs do not receive the same level of protection as populations listed as threatened or endangered. Thus, we believe it was more consistent with the ESA's treatment of NEPs to consider their associated hatchery programs as not listed. In the future, new salmon hatchery programs could be considered essential for recovery and thus experimental populations could include such hatchery fish in the listing.

Comment 11—Winthrop National Fish Hatchery Program and Okanogan NEP: Two commenters requested clarification regarding the Winthrop National Fish Hatchery Program in the Upper Columbia spring-run Chinook salmon ESU. One comment stated that “it is unclear if the designated [section] 10(j) NEP program is included as part of this Winthrop National Fish Hatchery Program” and requested that NMFS include language in the species listing to eliminate any ambiguity. The other comment recommended that we include in the listing the Chief Joseph Hatchery Program that uses ESA-listed broodstock from the Winthrop National Fish Hatchery Program for rearing and release in the Okanogan NEP. This second commenter asserted that the fish at the Chief Joseph Hatchery are still of ESU origin and within the acceptable divergence level, and therefore should carry the protections of the ESA prior to their release into the NEP.

Response: The Okanogan NEP and the Winthrop National Fish Hatchery share a common broodstock, however the Okanogan NEP fish are reared in a separate hatchery (Chief Joseph Hatchery), and are released in a different river basin located outside the geographic range of the ESU. The Jones memo (2015) documents that the Winthrop National Fish Hatchery Program provides fish for the Okanogan spring Chinook salmon reintroduction. We agree that spring Chinook salmon from the Winthrop National Fish Hatchery being reared in the Chief Joseph hatchery should still be included as part of the Upper Columbia River spring-run Chinook salmon listing. However, upon release into the Okanogan River basin these fish would no longer be considered part of the endangered Upper Columbia spring-run Chinook salmon ESU. Consistent with our regulations at 50 CFR 223.102(e), such fish would instead be considered members of the threatened NEP of Upper Columbia spring-run Chinook salmon when, and at such times as, they are found in the mainstem or tributaries of the Okanogan River from the Canada-United States border to the confluence of the Okanogan River with the Columbia River, Washington.

Comment 12—STEP Programs: A commenter stated that Salmon and Trout Enhancement Programs (STEP) should be excluded from listing, stating that these programs lack monitoring of broodstock, release sites and strategies, and return rates.

Response: We base our listing determinations on the best scientific information available. While monitoring data may be limited for STEP programs, we have evaluated the origin and history of their broodstocks and conclude that several programs warrant inclusion in the ESU/DPS listing.

Comment 13—Lower Columbia River Chinook Salmon Programs: One commenter stated that the Lower Columbia River Chinook salmon Cathlamet Channel Net Pens program and the Lower Columbia River coho salmon Clatsop County Fisheries Net Pen program should not be included in the Lower Columbia River Chinook salmon ESU. The basis for this comment is that these net pen programs produce Chinook salmon for selective harvest purposes and not for conservation.

Response: Non-biological considerations, including whether a hatchery program is planned to contribute to ESU recovery or to harvest, are not a factor in listing decisions. In this case, based on available biological information, spring-run Chinook salmon from net pens in the lower Columbia River are not more than moderately diverged from the Lower Columbia River Chinook Salmon ESU.

Comment 14—Cowlitz River Spring Chinook Salmon Hatchery: A comment stated that the Cowlitz River spring-run Chinook salmon hatchery program is not listed and thus two programs that use this stock, Cathlamet net pens program and the Friends of the Cowlitz program, should be removed from listing.

Response: The commenter is in error. The Cowlitz River spring-run Chinook salmon hatchery program is included in the Lower Columbia River Chinook Salmon ESU and is listed under the ESA (50 CFR 223.102).

Comment 15—Lower Columbia River Coho Salmon Description: The Lower Columbia River coho salmon ESU description contains Eagle Creek National Fish Hatchery Program, Bonneville/Cascade/Oxbow Hatchery Program, and Kalama River Type N Program, which provide broodstock sources to reintroduce coho in the Clearwater and Grande Ronde basins. A comment suggested adding to the ESU description that the listing “excludes Clearwater and Grande Ronde production groups.”

Response: Snake River coho salmon were extirpated in the Snake River basin by 1986. Coho salmon were reintroduced to the Clearwater subbasin in 1994 and the Grande Ronde/Lostine subbasin in 2017 using broodstock from the Lower Columbia River ESU. Lower Columbia River coho salmon are described in the CFR as “naturally spawned coho salmon originating from the Columbia River and its tributaries downstream from the Big White Salmon and Hood Rivers (inclusive) and any such fish originating from the Willamette River and its tributaries below Willamette Falls.” By this definition, Lower Columbia River coho salmon occurring in the Snake River basin are excluded from the listing and we see no need to add the commenter's proposed new language.

Comment 16—Snake River Sockeye Salmon Hatchery Programs: One comment stated that only the Redfish Lake Captive Broodstock Program is listed, and the recently-added “smolt production program” is not listed but should be.

Response: The commenter is correct. The Redfish Lake Captive Broodstock Program currently produces the eggs used in the new smolt production program. Therefore, the smolts produced for this new hatchery program are a category 1a (Jones 2015) and should be included in the Snake River sockeye salmon ESU. We will list this program under Idaho Department of Fish and Game's program name, the “Snake River Sockeye Salmon Hatchery Program.”

Comment 17—Upper Salmon River Steelhead Programs: A commenter stated that the Upper Salmon River programs are similar to the Little Salmon River in that the programs are in the process of changing stocks that do not utilize B-run steelhead from Dworshak Hatchery.

Response: Currently these programs still use some fish from the Dworshak National Fish Hatchery for broodstock. Thus, these fish should be listed because the “parent” program is listed. NMFS may reconsider this listing decision once the programs in the Upper Salmon River no longer use Dworshak National Fish Hatchery steelhead.

Comment 18—Dollar Creek Programs: A commenter suggested removing the Dollar Creek Program because it is subset of the McCall Hatchery.

Response: Dollar Creek is an egg box program that has its own HGMP. We will identify this program individually in the listing description because it is managed by a separate entity, it has a separate HGMP, and it is a separate line item in the 2018-2027 U.S. v. Oregon Management Agreement ( U.S. v. OR ). Identifying this program separately allows us to better track program implementation. In the proposed rule we identified this as the Dollar Creek Program, but have renamed it the South Fork Salmon River Eggbox Program as it is more consistent with the description in U.S. v. OR.

Comment 19—Listing Status of Panther Creek: A commenter stated that we are treating populations in Panther Creek and Lookingglass Creek inconsistently. The commenter asked if functionally-extirpated populations that have been reestablished with “within ESU” stock (but not `within-population') would be considered to be recovered?

Response: We are listing Panther Creek because the fish released there are from an already listed hatchery program within the same ESU, and this is consistent with how we have handled other reintroduction programs within the same ESU/DPS for the purpose of reintroducing fish into functionally extirpated populations ( e.g., Lookingglass in the Grande Ronde River Basin).

Comment 20—Wells Fish Hatchery Program Description: One commenter stated that the Wells Fish Hatchery program releases Columbia River steelhead smolts directly into the Columbia River and other locations, so it is not clear why in the listing language the Methow and Okanogan are listed in parentheses and the Columbia River is excluded. The commenter recommends deleting `in the Methow and Okanogan' in the listing language.

Response: The Wells Program has three separate components: Releases into the Methow River, the Twisp River, and the Columbia River. The Methow River and Twisp River releases use Methow River steelhead. Previously, the rationale for excluding the Columbia River release was because it uses Wells hatchery stock, which was created using fish from all steelhead populations returning to the Upper Columbia. Given the Wells stock is not representative of any one single population, we have decided not to list components of the Wells Program that propagate this stock.

Comment 21—Upper Willamette River Chinook Salmon: A commenter stated that the Jones (2015) memo did not adequately address the relationships between hatchery and natural populations of Chinook salmon and steelhead in the Willamette River. The commenter stated that recent genetic analysis by Oregon State University and the FWS suggests that the “Willamette River population is more appropriate (sic) considered one stock and not divided between Upper Willamette and Lower Columbia River.” The commenter suggests a more accurate delineation would be “Willamette River stock” and “Columbia River stock.” Furthermore, the commenter stated that Jones (2015) did not analyze this new genetic data, nor did it analyze proposed HGMPs for hatchery populations under the Willamette Biological Opinion or the Portland General Electric Hydropower Settlement Agreement, which requires long term changes to the hatchery populations and releases.

Response: This comment addresses how the Upper Willamette River Chinook salmon and Lower Columbia River Chinook salmon ESUs are defined, which is not the subject of this rulemaking.

Comment 22—ESU Description: Several comments requested that we revise ESU/DPS descriptions for various reasons.

Response: This final rule addresses hatchery programs associated with listed ESU/DPSs. Our recently-completed 5-year reviews did not recommend modifications to the composition of any ESU/DPS apart from the modifications related to hatchery programs addressed in this final rule.

Comment 23—Naming of Hatchery Programs: A commenter stated that it is unclear what strategy NMFS used to name the different hatchery programs included in the proposed changes.

Response: We acknowledge that naming conventions are not always consistent. Hatchery program names sometimes include reference to stocking location and sometimes they do not. For programs with submitted HGMPs, we use program names provided in the HGMP. In general, our intention is to use program names that are commonly accepted and which provide sufficient description to identify the program.

Comment 24—Consistency with Alsea Decision: A commenter stated that the proposed rule is inconsistent with the Alsea decision.

Response: NMFS issued the “Interim Policy on Artificial (Hatchery) Propagation of Pacific Salmon under the Endangered Species Act” (Interim Policy) in 1993. The Interim Policy provided that hatchery salmon and steelhead would not be listed under the ESA unless they were found to be essential for recovery of a listed species ( i.e., if the hatchery population contained a substantial portion of the remaining genetic diversity of the species). The result of this policy was that a listing determination for a species depended solely upon the relative health of the naturally spawning component of the species. In most cases, hatchery fish were not relied upon to contribute to recovery, and therefore were not listed.

As explained above, a federal court ruled in the Alsea decision that NMFS made an improper distinction under the ESA by excluding certain hatchery programs from the listing of Oregon Coast coho salmon, even though NMFS had determined that these hatchery programs were otherwise a part of the same ESU as the listed natural populations. The Court set aside NMFS' 1998 listing of Oregon Coast coho salmon because it impermissibly excluded hatchery fish within the ESU from listing and therefore listed an entity that was not a species, subspecies or DPS. While the Alsea decision only addressed Oregon Coast coho salmon, it prompted NMFS to reconsider the inclusion of hatchery fish in ESA listings for other West Coast salmon and steelhead species.

In 2005, NMFS issued the Hatchery Listing Policy, which superseded the Interim Policy. Under the Hatchery Listing Policy, hatchery stocks with a level of genetic divergence relative to the local natural populations that is no more than what occurs within the DPS are: (a) Considered part of the DPS; (b) considered in determining whether the DPS should be listed under the ESA; and (c) to be included in any listing of the DPS. Thus, the proposed rule and this final rule are consistent with the Alsea decision.

Comment 25—Administrative Procedure Act (APA) Compliance: A commenter suggested that updates to the list of hatchery programs included with listed ESU/DPSs is in violation of the APA because relevant data were not made available to the public.

Response: This rule was published as a proposed rule (81 FR 72759, October 21, 2016) and the public was entitled to contact NMFS and request additional information. We provided links to our most recent 5-year status reviews and Jones (2015) memos as well as NMFS staff contact information to obtain any additional supporting information.

Comment 26—ESA Compliance: Several commenters stated that the proposed rule does not comply with the requirements of section 4 of the ESA and requested that we re-issue the proposed rule and re-open for public comment. Commenters also stated that to update the list of hatchery programs included with listed ESU/DPSs, NMFS must engage in consultation under section 7(a)(2) of the ESA.

Response: As noted in the Background section above, in accordance with section 4(c)(2)(A) of the ESA, we completed our most recent 5-year reviews of the status of ESA-listed salmon ESUs and steelhead DPSs in California, Oregon, Idaho, and Washington in 2016 (81 FR 33468, May 26, 2016). At that time, we evaluated hatchery stocks associated with the relevant ESUs/DPS as part of a hatchery program review (Jones 2015), which in turn informed the overall ESA status reviews. Our evaluation addressed a number of factors regarding hatchery fish, including the degree of known or inferred genetic divergence between the hatchery stock and the local natural population(s) as well as the role and impacts of hatchery programs on key viability parameters such as abundance, productivity, spatial structure, and diversity. As a result of those 2016 status reviews, we concluded that the species membership of several salmonid hatchery programs warranted revision and advised the public that we would make those revisions through a subsequent rulemaking ( i.e., this Federal Register document).

ESA sections 4 and 7 serve different purposes. Under section 4, NMFS determines whether a species should be listed as endangered or threatened based on section 4's standards. Under ESA section 7, Federal agencies must engage in consultation with NMFS or the FWS prior to authorizing, funding, or carrying out actions that may affect listed species. It would not make sense for NMFS to carry out section 7 consultation over whether to list a species, as section 7 only applies to species that are already listed.

Comment 27—National Environmental Policy Act (NEPA) Compliance: Multiple commenters stated that the proposed rule violates NEPA and NMFS must prepare an Environmental Impact Statement (EIS).

Response: ESA listing decisions are non-discretionary actions by the agency which are exempt from the requirement to prepare an environmental assessment or EIS under NEPA. See NOAA Administrative Order 216 6.03(e)(1) and Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 1981).

Please refer to the proposed rule (81 FR 72759) for details on the rationale for our decision for each affected hatchery program. We carefully considered all comments received in response to the proposed rule and, as a result, have made the appropriate changes in this final rule. Below we summarize the changes made between the proposed and final rules.

In response to the proposed rule we received numerous comments requesting name changes to listed hatchery programs to ensure consistency with HGMPs. A few comments corrected errors we had made in the proposed rule. In response to these comments, we made the following changes between the proposed and final rules:

(1) We had proposed updating the name of the Keta Creek Hatchery Program to the Fish Restoration Facility Program. Instead, we are removing the Keta Creek Hatchery Program from listing, as it never existed and was previously listed in error. However, we are adding the Fish Restoration Facility Program, which is a new program.

(2) We had proposed to add the Bernie Kai-Kai Gobin (Tulalip) Hatchery-Skykomish Program. We want to correct the description of this action. This update is not the addition of a new program but rather a program name change from the existing Tulalip Bay Program to the Bernie Kai-Kai Gobin (Tulalip) Hatchery-Skykomish Program.

(3) We had proposed updating the name of the Harvey Creek Hatchery Program to the Brenner Creek Hatchery Program. In fact, the Harvey Creek and Brenner Creek hatchery programs are two distinct programs based on geography and run-timing. The Harvey Creek Hatchery Program (summer-run and fall-run) was already listed as part of the ESU. The updated listing language will better describe these programs as the Harvey Creek Hatchery Program (summer-run), and the now distinct Brenner Creek Hatchery Program (fall-run).

(4) We are changing the name of the Marblemount Hatchery Program (spring-run subyearlings and summer-run). This program is now considered to be two distinct programs: The Marblemount Hatchery Program (spring-run) and Marblemount Hatchery Program (summer-run). This name change was not described in the proposed rule.

(5) We are changing the names of several other programs and these changes were not described in the proposed rule. We are changing the names of: The Whitehorse Springs Pond Program to the Whitehorse Springs Hatchery Program (summer-run); the Diru Creek Program to the Clarks Creek Hatchery Program; the Issaquah Hatchery Program to the Issaquah Creek Hatchery Program; the White Acclimation Pond Program to the White River Acclimation Pond Program; the Clear Creek Program to the Clear Creek Hatchery Program; and the Kalama Creek Program to the Kalama Creek Hatchery Program.

(6) There was a typographical error in the proposed rule referring to the “Hamma Hatchery Program.” The correct name for this program is the Hamma Hamma Hatchery Program.

We are making two changes that differ from those described in the proposed rule.

(1) We proposed updating the name of the Big Sheep Creek Program to the Big Sheep Creek-Adult outplanting from Imnaha Program. Instead, we are removing this program from listing as a separate program, because it is now considered to be part of the listed Imnaha River Program.

(2) We proposed to add the Dollar Creek Program. We will be adding this new program, but it will be named the South Fork Salmon River Eggbox Program.

We are making two changes that differ from those described in the proposed rule.

(1) We removed the Kalama River Type-S Coho Program because it was terminated.

(2) The North Fork Toutle River Hatchery Program will now be named the North Fork Toutle River Type-S Hatchery Program.

We are changing the name of the Hood Canal Steelhead Supplementation Off-station Projects in the Dewatto, Skokomish, and Duckabush Rivers Program to the Hood Canal Supplementation Program.

We are making three changes that differ from those described in the proposed rule.

(1) We are adding the South Fork Clearwater Hatchery Program, as proposed, but we correct the name for this program to be the South Fork Clearwater (Clearwater Hatchery) B-run Program.

(2) We are removing the individual listings of the Lolo Creek Program and the North Fork Clearwater Program, because they are now considered to be part of the listed Dworshak National Fish Hatchery Program.

(3) We had proposed to add the Squaw Creek, Yankee Fork, and Pahsimeroi River Programs as discrete programs. In fact, these releases of listed hatchery fish are considered to be part of the Salmon River B-run Program and so we are not listing these tributary release sites as individual programs.

We are adding the new Chief Joseph spring Chinook Hatchery Program (Okanogan release). For further explanation, see Issue—Winthrop National Fish Hatchery Program and Okanogan NEP in the response to comments, above.

In the proposed rule we recommended minor changes in terminology to standardize species descriptions in regulations, but we did not propose any changes in hatchery programs included in this ESU. In response to comments, we are adding the Snake River Sockeye Salmon Hatchery Program.

In Table 1 we summarize this final rule's revisions to hatchery programs associated with listed species descriptions for Pacific salmon and steelhead species listed under the ESA.

Copies of previous Federal Register notices and related reference materials are available on the internet at https://www.fisheries.noaa.gov/rules-and-regulations, http://www.westcoast.fisheries.noaa.gov/, or upon request (see FOR FURTHER INFORMATION CONTACT section above).

As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this final rule is exempt from review under Executive Order 12866. This rule does not contain a collection of information requirement for the purposes of the Paperwork Reduction Act.

In accordance with Executive Order 13132, we determined that this rule does not have significant federalism effects and that a federalism assessment is not required. In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, this final rule will be shared with the relevant state agencies. The revisions may have some benefit to state and local resource agencies in that the ESA-listed species addressed in this rulemaking are more clearly and consistently described.

The Department of Commerce has determined that this final rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988. In keeping with that order, we are revising our descriptions of ESA-listed species to improve the clarity of our regulations.

The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir. 1981), we have concluded that NEPA does not apply to ESA listing actions. (See NOAA Administrative Order 216-6.)

Executive Order 13084 requires that if NMFS issues a regulation that significantly or uniquely affects the communities of Indian tribal governments and imposes substantial direct compliance costs on those communities, NMFS must consult with those governments or the Federal Government must provide the funds necessary to pay the direct compliance costs incurred by the tribal governments. This final rule does not impose substantial direct compliance costs on Indian tribal governments or communities. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this final rule. Nonetheless, during our preparation of the proposed and final rules, we solicited information from tribal governments and tribal fish commissions. We informed potentially affected tribal governments of the proposed rule and considered their comments in formulation of the final rule. We will continue to coordinate on future management actions pertaining to the listed species addressed in this final rule.

For the reasons set out in the preamble, we amend 50 CFR parts 223 and 224 as follows:

Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (71 FR 58058, October 2, 2006) and amendments, and in accordance with implementing regulations.

Under § 635.28(a)(1), NMFS files a closure notice with the Office of the Federal Register for publication when a BFT quota (or subquota) is reached or is projected to be reached. Retaining, possessing, or landing BFT under that quota category is prohibited on and after the effective date and time of a closure notice for that category, for the remainder of the fishing year, until the opening of the subsequent quota period or until such date as specified.

The baseline General category quota is 555.7 mt. See § 635.27(a). Each of the General category time periods (January, June through August, September, October through November, and December) is allocated a “subquota” or portion of the annual General category quota. The baseline subquotas for each time period are as follows: 29.5 mt for January; 277.9 mt for June through August; 147.3 mt for September; 72.2 mt for October through November; and 28.9 mt for December.

NMFS has determined that the General category December subquota of 28.9 mt has been reached and exceeded ( i.e., 32.7 mt have been landed as of December 14, 2020), as has the overall adjusted General category quota of 846.5 mt, and that the fishery should be closed. Through this action, we are closing the General category BFT fishery effective 11:30 p.m., December 14, 2020, through December 31, 2020. Therefore, retaining, possessing, or landing large medium or giant BFT by persons aboard vessels permitted in the Atlantic tunas General category and HMS Charter/Headboat category (while fishing commercially) must cease at 11:30 p.m. local time on December 14, 2020. The General category will reopen automatically on January 1, 2021, for the January 2021 subquota period. This action applies to those vessels permitted in the General category, as well as to those HMS Charter/Headboat permitted vessels with a commercial sale endorsement when fishing commercially for BFT, and is taken consistent with the regulations at § 635.28(a)(1). The intent of this closure is to prevent further overharvest of the adjusted December subquota, and the adjusted 2020 General category quota.

Fishermen may catch and release (or tag and release) BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. All BFT that are released must be handled in a manner that will maximize their survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available at https://www.fisheries.noaa.gov/resource/outreach-and-education/careful-catch-and-release-brochure/.

Dealers are required to submit landings reports within 24 hours of a dealer receiving BFT. Late reporting by dealers compromises NMFS' ability to timely implement actions such as quota and retention limit adjustment, as well as closures, and may result in enforcement actions. Additionally, and separate from the dealer reporting requirement, General and HMS Charter/Headboat category vessel owners are required to report the catch of all BFT retained or discarded dead within 24 hours of the landing(s) or end of each trip, by accessing hmspermits.noaa.gov, using the HMS Catch Reporting app, or calling (888) 872-8862 (Monday through Friday from 8 a.m. until 4:30 p.m.).

NMFS will need to account for 2020 landings and dead discards within the adjusted U.S. quota, consistent with ICCAT recommendations, and anticipates having sufficient quota to do that based on anticipated underharvest due to landings of some quota categories being substantially less than the available quotas for those categories.” Could add “( e.g., the Purse Seine, Trap, and Longline categories).

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is taken pursuant to regulations at 50 CFR part 635, which were issued pursuant to section 304(c) of the Magnuson-Stevens Act and the Atlantic Tunas Convention Act, and is exempt from review under Executive Order 12866.

The Assistant Administrator for NMFS finds that pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice of, and an opportunity for public comment on, for the following reasons: The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments and fishery closures to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. This fishery is currently underway, and delaying this action would be contrary to the public interest as it could result in BFT landings exceeding the adjusted December 2020 General category quota and the adjusted 2020 General category quota. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.